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Conviction for Forging DUI Records Affirmed by High Court

The Court of Appeals affirms the conviction of a former management analyst in the Fairfax County commonwealth’s attorney office for forging a public record in violation of Va. Code § 18.2-168, for her role in changing a record of a DUI conviction and forging another clerk’s name to the document, for which she received compensation.

At trial, defendant objected that the commonwealth had not laid a proper foundation for the admission of cell phone records showing phone calls from the DUI defendant to the analyst.

We do not believe that defendant analyst’s pretrial stipulation that the documents were authentic waived her argument that the commonwealth did not lay the proper foundation for the reliability o the computer system. Authentication does not, in itself, establish admissibility. However, because of her stipulation to their authenticity, the trial judge properly admitted the telephone records if they are properly analyzed as business records.

We conclude the trial court was correct in overruling defendant’s foundation objection because Penny v. Commonwealth, 6 Va. App. 494 (1988), is distinguishable from this case. Because the call trap is specifically employed for the purposes of litigation and during the competitive process of ferreting out criminal agents the added check of additional foundation evidence regarding the reliability of the call trap device is needed. Unlike the records produced by the call trap device in Penny, the telephone records in this case were relied on in the ordinary course of business and recorded by a disinterested telephone company. We find persuasive the reasoning of U.S. v. Vela, 673 F.2d 86 (5th Cir. 1982), which considered and rejected an objection to the admission of telephone billing records based on the prosecution’s failure to present testimony proving the reliability of the computer equipment that produced the records.

We hold the trial court did not err in overruling defendant’s foundation objection to the admission of the disputed telephone records.

Nor did the trial court err in overruling defendant’s foundation objection to the admission of the documents the DUI defendant testified he received from the analyst defendant. The DUI defendant’s testimony that the analyst personally gave these documents to him established their authenticity.

The appellate court also rejects the analyst’s appellate challenges to the jury instructions.

The record clearly supports the conclusion that the analyst materially altered recorded information regarding the results of misdemeanor traffic cases collected and kept by a general district court. The DUI defendant testified that the analyst told him she would eliminate all traces of his DUI from the court computer system. A police officer testified that he witnessed the DUI defendant’s plea of guilty and that he later found no record of the DUI conviction in his computer. A police sergeant testified that he was unable to find the file corresponding to the DUI defendant’s DUI case at the clerk’s office. The DUI defendant testified that the analyst gave him two documents purporting to be Traffic Hearing/Disposition Updates, one of which was ostensibly signed by another court employee and bore a stamp labeled “Fairfax County General District Court.” The other court employee testified she did not sign the attestation clause.

Conviction affirmed.

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