City of Hampton v. Carmichael, Driving Without Operator's License

April 23 2004 Trial - City of Hampton v. Lesie Carmichael
Driving Without Operator's License
Defense Claims Virginia Constiution and Common Law Protection
Of Right to Use Automobile Without Forsaking Religious Obligations

     THE COURT: All right. Okay. City is prosecuting this. We'll start with Ms . Yeatts.
     MS. YEATTS: Well, Your Honor, I think that the court continued this after I filed a motion in response to M r. Titus's motion to dismiss. He filed a response to my response and then I filed a short reply. Your Honor, it's the city's position that this is simply a driving without a valid operator's license charge pursuant to 46.2-300 of the Code of Virginia. The defendant brings up several extraneous issues, one of which being that she contends that in 2001/2002 she applied to renew her driver's license and that she alleges that the commissioner of the Department of Motor Vehicles - -and I want to quote her here - - arbitrarily, unreasonably, and unlawfully denied her a driver's license. And then she goes on to cite several constitutional arguments, etcetera, indicating that this is, she believes, the particular correct forum to bring that issue up.   The city's position is the denial of a renewal of the driver's license is appropriate, proper, and, therefore, inappropriate in this forum. It's appropriate under the Administrative Process Act; and in support of that:, Your Honor, the city cites 46.2-320, which allows the Dependent: of Motor Vehicles to refuse to grant an application for a driver's license in any of the circumstances set forth in 46.2-508.   46.2-608 - - an application can be refused if the applicant refuses, neglects to furnish the department with information required on the appropriate form. By her own admissions in her own
pleadings, Ms. CarmicHael indicates that she did not supply a Social Security number on the official form for the renewal of her driver's license. Not that she doesn't have one, she just didn't supply it. The defense submits several letters from the department indicating that she has applied for a waiver of this requirement pursuant - - because she has certain religious beliefs that prohibit her from using her Social Security number and that somehow that was the basis for the denial of the application. But the fact remains that she did not supply the information.   Pursuant to 46.2-323, which again is the defendant’s argument, that is where the requirement is that you shall include your Social Security number.   That is a mandate -   It isn't may, it's shall.   Further on down in 46.2-323, the third, fourth and fifth paragraphs talk about residency requirements and that the commissioner may adopt certain regulations to determine the process by which applicants may prove their residency. And then the final paragraph says the commissioner may on a case by case basis waive any provision of such, regulations. Only two places in 323 the word "regulation" is used:   Relating to - - in the third paragraph -- relating to residency, and that the commissioner may create regulations; and then the last paragraph that he may waive any provision of these regulations. There is no hooking together of regulations with the absolute requirement that you provide your Social Security number.
I think that the evidence at this point before the court, just on the motions, and the exhibits submitted with the motions indicate that she did not include her Social Security number on her application, which is a requirement pursuant to 323, that she was not issued a renewal license on the basis that she did not submit that information. Whether or not the commissioner's letter says that or not, that that action is properly appealable through the Administrative Process Act because it is a decision of the commissioner of motor vehicles and, therefore, if it was not appealed - - if it was appealed, in wou1d end up in this court if she appealed again.   But it was not appealed.   That was a year-and-a-half ago. And now being charged with driving without a valid license she appears before to assert arguments that were only proper in the administrative review process. Therefore, Your Honor, we are in the position today where she's charged with not having a license. That is simply all that the court -- and driving -- and that's simply all that's before the court. And the city's position is that the motion to dismiss should not be granted and that the prosecution for driving without a valid operator's license should proceed today.
     THE COURT:   I'm treating this as opening.
     MR. TITUS: Thank you, Your Honor. Once again, the Commonwealth's attorney is attempting to escape the clear language of the statute upon which this particular offense is based.   She's attempting to take the position that the application for a driver's license is irrelevant to a charge of driving without a driver's license. But according to Edenton which we cite in our response, Your Honor, which I'm sure you've had an opportunity to read -- but I think it's important to remind us in that opinion - - and it deals specifically with this statute, which is 46.2-300 -- indicates that the gravamen of the misdemeanor – the crucial element is the act of operating a motor vehicle by a driver who has not obtained a valid operator's license by making a lawful application and passing the required examination. And of course if you look at the statute itself, it doesn't say just simply operating a vehicle without a driver's license.   It says also of making lawful application and passing examination. So there are really three elements of this offense. And when she says that the issue of whether or not this application was filed or not filed with the commissioner of the Department of Motor Vehicles is an extraneous issue or somehow we're collaterally attacking this - - but we are offering this in rebuttal of one of the elements of the offense.   I think that's important because the motion to dismiss is based upon the application that was filed back in June of 2003.   I think that's the date in which her application was turned back.   So it does go no the very heart of what this offense is about.
     Now, she takes the position that my client has refused or neglected to furnish information that is required. Your Honor, even the city attorney indicates that she did not supply the Social Security number. Now that’s not refusing or neglecting. As a matter of fact, if you look at the application that is included in Exhibit I - -Defendant's Exhibit 1, you will see that in the box up in the left-hand corner at the top of the page -- this is on Page 3 of Exhibit Number 1 -- you wi11 see that in the box Social Security number she says, " none , religious prohibition. Now that's not a refusal to supply in formation. You see that in Page 3 of Exhibit 1 -- Defendant's Exhibit 1 and it's right at the top in the left-hand corner, Your Honor, of that. You'11 see it's a copy of the application that she filed. You will see that she indicates there under the box -- it says Social Security number -- "none" -- and then in parentheses -- "religious prohibition.”
    THE COURT: Yeah, I see that.
     MR. TITUS: And, of course, if you look at the cover letter of her husband(s) (that is) accompanied, you wi11 see that this is a request for a religious accommodation.   This is not a refusal to supply information. this is not a neglect to supply information. It's clearly a request with regard to a religious accommodation. That means. Your Honor, that the provision that is cited by the city attorney that says that this is a matter that Is subject to the administrative procedures doesn't apply because that applies only to Article 3. This is a matter involving an application for a motor vehicle, which is in Article 4. And so she cannot rely upon that provision which indicates that Article 3 matters go before the administrative procedures act. This is quite different. Now, for the first time –
     THE COURT: She was charged with --
      MR. TITUS: Well, she was charged --
     THE COURT: -- violation of 46.2-300, driving without a valid operator's license.
     MR. TITUS: That is correct. But in terms of Administrative Process Act, she's relying upon the statute that says that if you refuse or neglect to supply information then that's covered by the Administrative Process Act. Your Honor, my client did not refuse nor neglect, rather she submitted a request for a religious accommodation indicating that she would not furnish her Social Security number as requested because of religious prohibition. Now, if you go to the statute that applies with regard to this matter, and of course it's an element of the offense, it has to do with whether or not she made a lawful application. And if you look at 46.2-323, subsection B, it does say that every application shall
state the name, year, month of date of birth --
     THE COURT:   "Shall." Key word is "shall."
     TITUS: Of course -- Social Security number, residence, address of the applicant. Now, as the city attorney has admitted, there is a provision at the end of that subsection 3. Part of subsection B, which says the commissioner may on a case by case basis waive any provision of such regulations for good cause shown. Now, the way, Your Honor, that I've learned how to read a statute is that's part of the subsection. It doesn't say such regulation of a paragraph of the subsection. It says such regulations, and it's part of that subsection. So that indicates. Your Honor, that the commissioner of the Department: of Motor Vehicles has authority on a case by case basis to waive the requirement -- the "shall" of putting the Social Security number on the application. Can't read it any other kind of way.
     THE COURT: I agree with that. I'm with you.
     MR. TITUS:   Okay.   Now what's important here --
     THE COURT: The question is did the commissioner waive it in this case.
     MR. TITUS: Well, the commissioner did not waive it, but the point I would make, Your Honor, is the commissioner didn't even act under that particular authorization. If you look at Exhibit Number 1 again -- Defendant's Exhibit Number 1, you will see that he doesn't say in his letter, "I do not find good cause based upon your request and your application to waive the Social Security number." He doesn't say that. If you look at the first page of Defendant's Exhibit 1, he indicates -- he says, as I have -- this is the second paragraph.
     THE COURT: This is part of your submission -- June 11 , 2002?
     MR. TITUS: That is correct.
     THE COURT: I've read that.
     MR. TITUS: And if you look at it, it says: As I've advised in previous letters, DMV cannot remove your SSNs unless we are provided with a statement from the Social Security Administration or a court order stating that the SSN does not belong to you or has ever been associated with you. Now, notice he's not exercising his discretion under the Virginia statute 46.2-323. He's assuming that there's some law out there that requires him to require an applicant to place her Social Security number on the application, when as a matter of fact the Virginia statute indicates on a case by case basis for good cause shown he could waive that. So, Your Honor, he did not even exercise his discretion under the statute. That's not just an abuse of discretion. Your Honor, that's simply disobeying the law. It's not making the decision that he's authorized by the Commonwealth of Virginia to determine whether or not he should waive that particular requirement.
     Now let's look at the Social Security number requirement, Your Honor, because I think it's important to recognize that that number is not being asked for identification purpose. If you look at the second page of iny client's application, which is the fourth page of Defendant's Exhibit Number 1 -- if you look at the very bottom -- and it's in fine print. I trust that you can see it, Your Honor. I have a bit of difficulty seeing it, but I'll do my best -- Virginia code sections 46.2-323 and 342 require that you make -- that you provide DMV with the information on this form. And then it says: Including your Social Security number.   It is not necessary to provide a Social Security number for an identification card. This Social Security number is for record keeping purposes and may be disseminated in accordance with Virginia code 46.2-208 and 209.
     Now notice , Your Honor, the DMVs not asking for the Social Security number to make sure that the applicant is the applicant.   It's just for record keeping purposes. And there --
     THE COURT: Let me stop you.   Let me stop -- hold your point.   But doesn't the code say they have to do it? Does it really matter what they say in their form, if the code says every application shall?
     MR. TITUS:   If you go back to the last sentence of the subsection B, it says on a case by case basis he can waive that. Now the point I'm making here is that I could understand if the commissioner of the Department of Motor Vehicles wanted to see the Social Security number to make sure the applicant is who the applicant is, but it specifically states that it’s not for identification purposes, it's just for record keeping purposes. Now, Your Honor, it seems to me that if someone presented to the commissioner that they have a religious objection, religious conviction that would be violated if they were forced to identify with a Social Security number, that that would be the very kind of case that you would expect the commissioner of the Department of Motor Vehicles to exercise their discretion and say, Well, maybe there's a good cause not to require that since I'm not requiring it for identification purposes. It's just for record keeping purposes.   So, Your Honor, it seems to me that it's important to see here that it's a total failure to exercise discretion.
And may I once again remind you, as I did last time, Your Honor, this has to do with a constitutional right. This has to do with whether
or not an applicant for a driver's license is going to be burdened, molested, and otherwise interfered with on the basis of her religious opinion. Now you would think in the Commonwealth of Virginia -- the commonwealth of Thomas Jefferson and James Madison, the two architects of religious freedom in America, that our government officials would be very concerned that if an applicant indicated to that person that a matter that had only to do with record keeping purposes had a religious objection to furnishing that information, that at least he would attend to it, he would look at it and say that could very well be a good reason for me to waive that regulation.
     THE COURT:   You want me to hold this section unconstitutional?
     MR. TITUS: Your Honor, that is --
     THE COURT:   46.2-323?
     MR. TITUS: That is also one of our arguments in our motion to dismiss. And I might indicate to Your Honor that that’s an independent argument from this administrative argument that I've been making up to this particular point.   It's interesting that the city attorney has never addressed the constitutional question in this matter. And surely the constitutionality of applying the statute in this case with regard to my client -- surely the constitutional question is rightfully before this court.   Surely my client does not have to go through the Administrative Process Act to raise a constitutional claim. The city attorney hasn't made that argument. And so it's a two fold argument, Your Honor, first of all, it's an argument that goes to the commissioner of the Department of Motor Vehicles; he ought to attend carefully to this kind of a claim in exercise of discretion. But independent of that, Your Honor, Your Honor should be concerned about the application of this statute in this case to my client where she would be burdened because of her religious opinion to provide a Social Security number.
    THE COURT: So you're saying -- let me ask you this.   Let's say, assuming for argument’s sake, DMV – the commissioner had said in his second paragraph -- if he had said, I decline to exercise my discretion, instead of the paragraph that he had written?
     MR. TITUS:   It would be different in the sense that then the question would be whether it was an abuse of discretion.
     THE COURT: Where would that be resolved?
     MR. TITUS: Well. Your Honor, the
standard of review of this court would be much lower if it was abuse of discretion as contrasted to a total failure to exercise discretion.
     THE COURT: So it should come directly to court and not go through the Administrative Process Act?
     MR. TITUS: Well, Your Honor, without going into the detail with regard to that matter, we cover that very carefully in part one of our response to indicate that in this particular case, because it has to do with an application, that this is something that is outside the Administrative Process Act, that you wouldn't have to go through the Administrative Process Act with regard to this matter because it's not a refusal or a neglect to provide information. It has to do with what information is permissible on a particular application. So our position would be that even if he would nave recognized he had discretion, although our claim would be that he abused his discretion, I believe we're still properly before this court and we would not have to go through the Administrative Process Act. And I think that the detail of our argument is better stated in the response than my trying to repeat it this morning, Your Honor.
     THE COURT: Okay. Thank you. Now back co the constitutional question. The attorney general -- assistant attorney general wrote a letter to Mr. Carmichael back in 2001 citing a federal case out of the second circuit from New York which held that the -- that addressed this constitutional question to whether a Social Security number could be provided to a state agency. And the court held that the state agency was not prohibited on providing that. How do you distinguish that? A federal case has already opined that this kind of statute would be permissible under the constitution. How do you distinguish that from this case?
MR. TITUS: Well, there are two distinctions. Your Honor. In that particular case it was a claim that rested upon the United States Constitution; therefore, rested upon the free exercise clause as construed by the United States Supreme Court, which is narrower and is less protective of religious freedom than is the Virginia Constitution, and particularly Virginia statute section 57-1. And, Your Honor, you know, (the) United States Supreme Court has no authority to determine or interpret the state constitution. That is states court authority and state court responsibility. So that New York case is totally irrelevant. We're not making a claim based upon the United States Constitution. We're making a claim, based upon article one, section 15 of the Virginia Constitution, section. 57-1 of the Virginia statutes. And it's important to look at the language because you can see how different the language is from the language of the First Amendment even as it applies to the states by the 14th Amendment.
     May I just call your attention to section 57-1, the last paragraph. And this, of course, is Jefferson's statute, Your Honor.     It was on the books, as you know, before the First Amendment was ever conceived.   That came first.   It has priority over whatever the United States Constitution might have. And listen to the statute.   It says that no man shall be compelled to frequent or support any religious worship place or ministry whatsoever. That's very different language than Congress shall make no law respecting an establishment of religion, prohibiting the free exercise thereof. Very different language.   Then look at what it says here. This is the language we rely upon, Your Honor -- nor shall be enforced, restrained, molested, or burdened in his body or goods (nor) shall otherwise suffer on the account of his religious opinions or beliefs. Now notice that language is very, very different from the First Amendment. And, Your Honor, in America the state constitutional guarantees are primary.   They're the first place we should look to make sure that the people of Virginia are being protected in their exercise of their freedom of religion. And that's especially true. And I know, Your Honor, I may sound like a broken record, but it's so important for us to be reminded that as Thomas Jefferson and James Madison in this Commonwealth, in article one, section 16 -- Madison, particularly -- he was the one who led the way to establishing freedom of religion -- first in Virginia and then ultimately in the United States Constitution. But it's Virginia that has always been the beacon of religious freedom in America and it's important for Virginia to abide by its constitutional protections and not be looking to the united States Supreme Court when the language
of the two constitutions, the language of the statute is different. And that would be my response to that point and of the Commonwealth's attorney -- or the –
     THE COURT: Okay. Anything else?
     MR. TITUS:   Well, Your Honor, just a closing comment, and that is while driving on the public highways of Virginia is not: a constitutionally guaranteed right, it's -- the Supreme Court of Virginia has in that case of Thompson, which is cited in our motion to dismiss -- Thompson v. Smith has recognized that it is a common right, it is an important right. And if you link that back to being burdened in your body or your goods, as section 57-1, because of your religious opinion -- and, Your Honor, in this particular case, there's no indication that requiring the Social Security number has anything to do with any significant purpose of this state.   Information gathering. And, Your Honor, we should be very careful about any effort to gather information just for the purposes of gathering the data from the citizenry of the state.   If you go back and look in the civil rights era, there were efforts to gather in formation about who belonged to NAACP and who did this and who did that, and the United States Supreme Court struck that kind of information gathering effort down. And it's important here, I think, that if that's the only interest that the Commonwealth has is information gathering, that certainly should not override the crucial constitutional rights of my client. Thank you very much.
     THE COURT: All right. Let's see. Where are we. This is Mr. Titus's motion to dismiss. I have to respectfully deny this motion. Mr. Titus. While I respect Mrs. Carmichael's strong beliefs, I do believe that this statute is constitutional -- 46.2-323. This is not the court to hold a statute like this unconstitutional. So I have to rule that this is the law and I have to follow it. It does require -- it's mandatory she provide a Social Security number to be used for information or whatever reasoning. It's justifiable. This state action is justifiable under the Virginia as well as U.S. Constitution. You know, I spent a lot of time with this, but I just don't agree that it should be validated.
     Then that takes us to whether or not the action of the commissioner was appropriate, and I believe it was under this statute, not withstanding the reason he gave for denying or refusing to exercise his discretion. I'm satisfied that his denial in issuing this license was proper. I do believe the Administrative Process Act would be the appropriate remedy to address -- initially address the decisions of the commissioner. I do believe they are appealable to the local circuit court, but not until it has run its full course through DMV, and that hasn't happened in this case. So I have to again respectfully deny your motion to overrule the decision of the commissioner.
     So the motion to strike is dismissed and I respectfully deny it at this point. So that leaves the trial. You may proceed.
     MS. YEATTS: I don't believe there's actually a plea. Your Honor.
     THE COURT: How do you wish to plead on her behalf?
     MR. TITUS: Well, Your Honor, I believe that there are some factual issues that remain. I don't want to unnecessarily take the court's time with --
     THE COURT: That's why I put it here. I want you to take the time. I've done my research. I'm ready to proceed.
     MR. TITUS: We're ready to proceed.
     THE COURT: All right. How does she plead? You can plead for her.
     MR. TITUS: She pleads not guilty, Your Honor.
     THE COURT: All right. All who are going to testify, please stand.
(Witnesses sworn by the clerk.)
     THE COURT: Do you need to separate witnesses?
     MS. YEATTS: I think that's a good idea. I'm sorry. Yes, please.
     THE COURT: Good morning, sir. Would you go with the bailiff. We'll call you.
Let the record show we've sequestered the witnesses on the city's motion.
Have a seat.   Go ahead.
     R. FELICIANO, called as a witness on behalf of the City, having been first duly sworn, testified as follows:
DIRECT EXAMINATION BY MS. YEATTS:
Q. You're Officer Feliciano?
A. Yes, Ma'am.
Q. Are you employed by the Hampton Police Department?
A. That's correct.
Q. Were you so employed on October 23rd of the year 2003?
A. Yes, ma'am.
Q. On that date did you have occasion to observe a Leslie Carmichael operating her motor vehicle within the City of Hampton?
A. Yes, ma'am.
Q. Will you please tell the court what occurred.
A. Sure, ma'am. On that date I was stationary at the Intersection of Hidalgo and Fort Worth operating a stationary radar. She came in my radar -- 36. It was a posted 25 mile speed limit, and that was my initial reason for stopping her. Upon my contact with her I asked her for a driver's license and registration. she did not provide the operator's license so I began taking information down to verify it through the communications channel. She returned not licensed. At that time I proceeded to issue a summons for speeding and not having a valid operator's license.
Q. And this individual than you stopped for driving 36 in a posted 25 mile per hour zone, do you see her in the courtroom today?
A. Sitting to her attorney's right.
Q. And did she give you any identifying information other than her name?
A. Just her name and date of birth, as I can recall.
Q.   I'm going to show you a document and ask if you can identify it for the court, please?
A. The Department of Motor Vehicle's driving transcript.
Q. Okay. And for whom is that transcript?
A. States Leslie Young Carmichael.
Q. okay. And if you would look at the date of birth, please, and tell me, is that the date of birth that the Leslie Carmichael that you stopped gave you?
A. If I can just verify.
Q. Sure.
A. Yes, ma'am.
Q. And what does it indicate regarding her -- the status of her driver's license?
A. Driver's license status -- not licensed. Status -- not licensed.
     MS. YEATTS: All right. Your Honor, I'd move for admission of the DMV transcript.
     THE COURT: Mr. Titus, you've reviewed this?
     MR. TITUS: I have no objection to it.
     THE COURT: All right. Marked as City' s Exhibit Number 1. okay.
(DMv transcript was marked as City's Exhibit Number 1.)
     MS. YEATTS:
Q . She did indicate to you that she didn't have an actual permit with her; is that correct?
A . Yes, ma'am.
Q. Did she indicate to you whether she had one that was valid? Die she make any statements --
A. The only thing I can remember is she said she did not have a valid operator's license, so I just took her word for it.
Q. And that was confirmed when you ran it on the system?
A. Yes, ma'am.
Q. And as well by the transcript of DMV, correct?
A. That's correct.
Q. All these events occurred in the City of Hampton?
A. That's correct.
     MS. YEATTS: No further questions.

     CROSS-EXAMINATION BY MR. TITUS:
Q. Officer Feliciano, you indicated in your direct examination that you contacted the office for information; is that correct?
A. Right, information to verify driver's license status.
Q. Did you seek information with regard to whether or not Mrs. Carmichael had filed an application for a driver's license?
A. No, sir.
     MR. TITUS: Your Honor, if I may have the exhibit. May I approach the bench?
     BY MR. TITUS:
Q. Officer Feliciano, I'm showing you Defendant's Exhibit Number 1. Is there any information on that particular exhibit which indicates whether Mrs. Carmichael had made application for a Virginia driver's license?
A. I would have to go by the previous license information and the date issued.
Q. But this particular exhibit doesn't indicate whether she had or had not applied for an application since that previous driver's license; is that correct?
A. Yes, sir.
Q.   So this exhibit doesn't contain any information with regard to whether she had made application?
A. No, sir.
Q. Officer Feliciar.o, did you have any conversation with Mrs. Carmichael with regard to whether she had made application for a driver's license?
A . As far as I can remember, she just stated she had some religious beliefs -- Social Security number -- so I just took her name, date of birth, and just clarified it through the information channel.
Q . Did you inquire of her whether or not she had made an application for a driver's license?
A. No, sir.
Q. So you don't know, as you've testified here today, whether she had made an application for a driver's license and what had happened to that application, if any?
A. That's correct.
     MR. TITUS: Thank you.
     THE COURT: Thank you, officer. You're free to go.
     MS. YEATTS: City rests.
     THE COURT:   City rests.
     MR. TITUS : Your Honor, I move to strike the evidence on the grounds that the Commonwealth has not proved the offense under 46.2-300 because there's no evidence in this case whatsoever that my client had not made a lawful application for a driver's license, and that's one of the elements of the offense.
     THE COURT: Okay.
     MS. YEATTS: Your Honor, I respectfully disagree with Mr. Titus, Your Honor.
     THE COURT: Okay. I do, too. It says --
     MS. YEATTS: It requires the obtaining of a license.
     THE COURT: Yeah. Well, it says in the conjunctive "and" -- conjunction -- obtain a driver's license. So she has to obtain one.
     MR. TITUS: Your Honor, may I respond to that?
     THE COURT: You can try to change my mind,
     MR. TITUS: That's what I'm trying to do this morning, Your Honor. Well, the reason the element is important is if someone makes a lawful application for a driver's license and somehow it has been lost or somehow it has been refused illegally, that's an important element of the offense. You can't just assume that if someone doesn't have a driver's license, that there hasn't -- someone hasn't made an effort to obtain such a driver's license. And that would be incumbent upon the officer to have made such an inquiry and determine whether or not such an application might have been made.
     THE COURT: Well, the reason I said denied. Commonwealth has proved a prima facia case. You're absolutely right -- I mean, there's a lot of reasons why a person will not have a license. But the evidence that they've produced at this point -- and that's how we have to evaluate it is -- first of all, she was stopped and she told the officer she didn't have a valid operator's license. And that's a confession. Secondly, the City Exhibit Number 1 shows -- in the DMV transcript, which is permitted to be introduced -- which shows driver's license status -- not licensed. So those two exhibits -- exhibit plus her confession establishes a prima facia case. That's why I said -- you're absolutely right, I mean, there could be a lot of reasons why a person will not have a license.
     MR. TITUS: And, Your Honor, there's nothing on that exhibit that indicates anything about application. It's totally void of that. And so it appears that the way they go about these cases is not consistent with the statute. The legal gravamen has something to do with making a lawful application.
     THE COURT: Well, again. Commonwealth has established a prima facia case of the violation. It's respectfully denied.
     MR. TITUS: Thank you. Your Honor.
     THE COURT: You may proceed.
     MR. TITUS: I call Mrs. Carmichael.
     THE COURT: Okay. Come on up.
LESLIE CARMICHAEL, called as a witness, having been first duly sworn, testified as follows:
DIRECT EXAMINATION BY MR. TITUS:
O_. Mrs. Carmichael, would you state your name and address for the court, please.
A. Leslie Young Carmichael, 1748 Old Buckroe Road, Hampton.
Q. How old are you, Mrs. Carmichael?
A. Thirty-seven.
Q. Are you the defendant in this case?
A. I am the defendant in this case. Yes, I guess I am.
Q. And have you ever had a valid Virginia driver's license?
A. Yes, sir.
     MR. TITUS: Your Honor, I –-
     MS. YEATTS: Your Honor, I'm assuming she's going to identify this. I did not object it in terms of the motion to dismiss; however. Your Honor, I – (Extremely long pause and silence) Your Honor, I'm not going to object to the admission.
     THE COURT: All right. Lee's mark it Defense Exhibit Number 1.
(DMV application was marked as Defendant's Exhibit Number l.)
     MR. TITUS: And, Your Honor, just for your information, this appears on pages 2 and 3 of our Exhibit 1 that was submitted in support of our motion to dismiss.
     BY MR. TITUS:
Q . Ms . Carmichael, I've shown you what has been marked Defendant's Exhibit Number 1. Could you identify that for the record, please? You can go ahead and read it first and then identify it, please.
A. It is a driver's license identification card, and voter registration application. And it was -- that's my information. That's my signature on the back.
Q. Do you remember signing that, Mrs. Carmichael?
a. Yes.
Q. What is the date of that application?
A. May 23rd, 2002.
Q. And is that an application that you sent to the Commonwealth -- the commissioner of Department of Motor Vehicles?
a. Yes.
Q. And do you remember approximately when that was sent to that department?
A. Well, I guess it must have been in May 2002. That's when we signed it.
     MR. TITUS: Your Honor, we'd offer this in evidence.
     THE COURT: Sure. Okay.
(Defendant's Exhibit Number 1 received into evidence.)
     BY MR. TITUS:
Q. Mrs. Carmichael, would you look up at the top of the left-hand corner of what has been marked as Defendant's Exhibit Number 1. What do you see in the first box up at the top left-hand corner?
A. Says Social Security number none, and religious prohibition in parentheses.
Q .   Okay. Do you remember why you put none and religious prohibition?
     MS. YEATTS: Your Honor, at this point I would object to the relevancy of the questions regarding the actual application. I don't object to the application being submitted, but I think Your Honor has ruled on the arguments that relate to what was in the application.
     MR. TITUS: Your Honor, with a motion to dismiss it's based upon what's in the record with regard to the motion to dismiss. Now the issue before the court is whether or not Mrs. Carmichael's constitutional rights, as well as her rights under Section 57.-1, are violated in the facts of this case. So it's important in addressing the constitutional question to address the question as it applies to the facts, as well as apply to the documents that had been previously submitted in support of our motion to dismiss.
   THE COURT: I'll give you some brief latitude and let her answer that question.
     MS. YEATTS: Your Honor, could the record please reflect the city vehemently objects to constitutional arguments of that nature at this point.
     THE COURT: Sure. Go ahead.
Q. Could you explain to the court, Mrs. Carmichael, what is meant by religious prohibition?
A. Yes . I and my family -- we're just -- we have a religious conviction to not associate with social Security numbers and tie our names to a Social Security number. And it's something that we walk every day in every area of life and this just reflects that.
Q. And is that your personal religious conviction, Mrs. Carmichael?
A. It is. My -- my personal religious conviction is that for me and my family -- this is where we go and this is what we do and it is under the headship of my husband and we follow that according to just the Bible and him being the head of our family. This is where we walk.
Q. So your husband's conviction is that for you or any member of his family, including himself, to be identified with a Social Security number would violate religious convictions?
A. Very much.
Q. Now, Mrs. Carmichael, this is an original application. Could you explain to the court how it is that you have the original application in your possession?
A. It was sent back like it is.
Q. It was sent back?
A. It was sent back to us just like it is.
Q. So it was submitted to the Department of Motor Vehicles and sent back?
A. Yes.
     MR. TITUS: No further questions.
     THE COURT: Do you have anything?
     CROSS-EXAMINATION BY MS. YEATTS:
Q. Mrs. Carmichael, you had previously had a driver's license, correct?
A. Yes.
Q. And you also -- you do have a Social Security number, don't you?
A. There was at one time. My parents acquired for me a Social Security number when I was a child and it is something that -- it has been rescinded for quite a long time.
Q. As far as you know that number still exists out there somewhere but you don't use it, correct?
A . It's not associated with me any longer. It's there, I'm sure.
     MS. YEATTS:   Okay. No further questions.
     THE COURT: All right. Thank you. Anything else? Redirect?
     MR. TITUS: No, Your Honor.
     THE COURT: Okay. Have a seat. ma'am. You got another witness?
     MR. TITUS: Yes, we do.   I'd call Pastor Leonard Riley, please.
     THE COURT: Well, let me --
     MS. YEATTS: Your Honor, I'm going to object and ask that the relevancy -- he can proffer but --
     THE COURT: Yeah, where are you headed with this?
     MR. TITUS: Well, Your Honor, if the Commonwealth attorney – or – I’m sorry – city attorney would stipulate that my client’s religious belief is what she says it is and also that it’s sincerely held –
     THE COURT: I've already said that. I accept that.
     MR. TITUS: I did not hear that after Mrs. Carmichael testified.
     THE COURT: I said it when I announced my decision to deny your motion to dismiss that I respect her religious beliefs.
     MR. TITUS: I understand that, but. Your Honor, that's a little bit different in terms of finding of a sincerely-held belief and that it is in fact a religious belief. If the city attorney would stipulate as to that, then there would be no need for --
     THE COURT: That's her belief. I respect it. My ruling was that the state's interest in the Social Security number did not violate her religious -- her constitutional rights. I'll just say that. That's what I said. I respect her beliefs. They don't justify any overruling or upholding this statute unconstitutional. So I don’t know that the pastor can help. The issue before the court now is whether she was driving without a valid operator's license.
     MR. TITUS; Your Honor, just for the record, what's important here is for it to be clear on the record that there is no question that this is a sincerely held religious conviction and that's what led her to put "none, religious prohibition" in the top left-hand corner --
     THE COURT: I accept that.
     MR. TITUS: -- of her application.
     MS. YEATTS: Your Honor, I have to object to the court making that finding and I would like it so noted on the record. We're going far field of where we are. So if Your Honor is going to make that finding that it's a sincerely held -- with quotes around it -- religious belief, then the city would object.
     THE COURT: All right. We have an objection. Why do you need to put this on?
     MR. TITUS: Why do I think it should be on the record. Your Honor? Because I believe that's one of the elements with regard to whether or not this violates Section 57-1 and Article 1, Section 16 of the Virginia Constitution of whether or nor; she has a sincerely held religious belief. If the Commonwealth -- or the city attorney is contesting that. Your Honor, then I think it's very important for Pastor Riley to testify or for this court to make a finding as a matter of fact that she has that sincerely religious conviction and that's what led her to put "religious prohibition" up there in -- and "none" under the Social Security column. It's important. Your Honor, with regard to the application of Section 57-1 and Article 1, 16 to the facts of this case and not just to the record that was placed before the court on the motion to dismiss.
     THE COURT: I'm going to sustain the objection.
     MS. YEATTS: Thank you.
     THE COURT: You certainly have every right to put the pastor on if he knows something about the driver's -- the incident -- he was there or he has testimony that's going to add --I would certainly permit that. I don't want to cut you off that way, but if he's going to talk about her religious beliefs, then I'll sustain the objection to that.
     MR. TITUS: Okay, May I make a proffer of proof - - proffer of evidence?
     MS. YEATTS: I think he's entitled to do that.
     THE COURT: Yeah. Okay. Go ahead.
     MR. TITUS: Our proffer would be that if Pastor Leonard Riley was placed upon the stand that he would attest -- because of his being the Carmichael family's pastor during the time this application was made -- he would give testimony saying this is a sincerely religious belief of Mrs. Carmichael and her husband and the Carmichael family and it's within the reasonable range of Christian beliefs with regard to both the application of the Bible with regard to the Social Security number as the number of the beast and also with regard to Mrs. Carmichael's relationship with her husband as her husband's wife.
     THE COURT:   Okay.   That's the proffer.   I accept it.
     MR. TITUS: Of course we would register our objection to not allowing him to testify to that effect. Thank you, your Honor. The defendant rests.
     THE COURT: You can release the witnesses. Comments? Any additional comments?
     MS. YEATTS: Other than simply to say. Your Honor, pursuant to 46.2-300 I believe the evidence supports the charge that Ms. Carmichael was driving without a valid operator's license by her own testimony, the evidence, and despite her application.
     THE COURT: Okay. Your response.
     MR. TITUS: And, Your Honor, once again, without repeating myself too much, we believe that the application of this statute in this case on these facts molest and burdens my client, Mrs. Carmichael, solely on the basis of her religious opinions where there's no interest of the Commonwealth of Virginia other than gathering information and putting it in some kind of computer and that this is the very kind of thing that the Article 1, Section 16 protects -- the free exercise of religion in Virginia -- and Section 57-1 guards against.
     THE COURT: Okay. Thank you. All right. Mrs. Carmichael is guilty as charged. I believe the lower court's fine of $50 and costs is an appropriate fine. And that's my decision.
     MS. YEATTS: Thank you. Judge.
     MR. TITUS: Thank you, Your Honor.
     THE COURT: You-all have a good day and good weekend.
(The proceedings were concluded.)

David Alan Carmichael v. United States, American Christian Liberty Society, patriot, 666, number of the BEAST
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