Judkins Clarifies: Testimony About the Absence of a DMV Decertification Request Is Not Hearsay, and Lesser-Included OAS Instructions Require an Independent Evidentiary Basis

Judkins Clarifies: Testimony About the Absence of a DMV Decertification Request Is Not Hearsay, and Lesser-Included OAS Instructions Require an Independent Evidentiary Basis

Introduction

In State of New Hampshire v. Jamie J. Judkins (No. 2024-0333), decided September 25, 2025, the New Hampshire Supreme Court affirmed a conviction for driving after being certified a habitual offender under RSA 262:23, I. The case addresses two issues of recurring importance in criminal trials that turn on motor vehicle licensing records and mental-state elements:

  • Whether a Department of Safety records custodian’s testimony that no decertification hearing was requested is hearsay; and
  • Whether the defendant was entitled to a jury instruction on the lesser-included offense of operating after suspension or revocation (OAS) under RSA 263:64.

The Court held (1) that testimony by the Department’s chief hearings examiner—who checked the official records and found no written request for a decertification hearing—was not hearsay because it did not repeat any out-of-court “statement”; and (2) that a lesser-included instruction was unwarranted because there was no independent evidentiary basis to separate the knowledge element of the greater habitual-offender (HO) offense from the knowledge element of OAS, making State v. Watkins, 148 N.H. 760 (2002), controlling rather than State v. Gauntt, 154 N.H. 204 (2006).

Along the way, the Court reaffirmed the structure of the habitual-offender regime—especially the necessity of written decertification after the revocation period—and flagged, without resolving, a live question about the standard of review for lesser-included instructions, referencing State v. Brooks, 2025 N.H. 12.

Summary of the Opinion

The Court resolved the appeal by order under Supreme Court Rule 20(3) and affirmed the conviction. On the hearsay issue, the Court concluded that the chief hearings examiner’s testimony that he checked the Bureau of Hearings’ records and found no request for a habitual-offender decertification hearing was not hearsay. The testimony did not relay an out-of-court “statement” within the meaning of N.H. R. Ev. 801(a), (c), but instead reflected the custodian’s knowledge based on the official recordkeeping system (which requires written requests and maintains recordings of decertification hearings).

On the jury-instruction issue, the Court applied the two-step test for lesser-included offenses. Although OAS is embraced within the definition of driving after certification as a habitual offender, the record did not provide a rational basis to convict on OAS rather than the habitual-offender charge. As in Watkins, the only proven revocation or suspension in evidence flowed from the habitual-offender certification; and unlike in Gauntt, there was no testimony or evidence of the defendant’s subjective misunderstanding or other state of mind that might sever knowledge of suspension from knowledge of habitual-offender status. The trial court therefore correctly declined the lesser-included instruction.

In a footnote, the Court observed that the parties disputed the standard of review (unsustainable exercise of discretion per Gauntt versus de novo review per Brooks), but it did not decide the issue, finding the same result under either standard.

Analysis

Precedents and Authorities Cited

  • N.H. R. Ev. 801(a), (c); 802: Defines hearsay and “statement” (oral/written assertions and certain nonverbal conduct) and the general bar on hearsay unless permitted by statute or rule. The Court’s analysis turns on whether the challenged testimony conveyed any out-of-court “assertion.”
  • State v. Dana, 175 N.H. 27 (2022): Sets out the “unsustainable exercise of discretion” standard for evidentiary rulings—deference to the trial court unless the ruling is clearly untenable or unreasonable to the defendant’s prejudice.
  • State v. Watkins, 148 N.H. 760 (2002): Addresses when a lesser-included OAS instruction is inappropriate in a habitual-offender prosecution because the only evidence of a revocation is the habitual-offender revocation, and the same evidence supporting knowledge of revocation also proves knowledge of habitual-offender status.
  • State v. Gauntt, 154 N.H. 204 (2006): Approves a lesser-included OAS instruction where there was trial evidence (including defendant’s testimony) creating a rational basis to find the defendant did not subjectively know he remained a habitual offender, even though he knew his license was suspended.
  • State v. Brooks, 2025 N.H. 12: Cited regarding the standard of review for jury-instruction issues; the Court noted the dispute but found it unnecessary to resolve in this case.
  • RSA 262:19, :23, :24; RSA 263:64; RSA 260:14, II(b): Statutory framework for habitual-offender certification, revocation, decertification and restoration, public record custodianship, and the OAS offense.
  • N.H. Admin. R., Saf-C 1017.06, 1017.07: Governs the decertification process, including the requirement of a written request and a recorded hearing.
  • Sup. Ct. R. 20(3): Authorizes resolution by order, which the Court invoked here.

Legal Reasoning

1) Hearsay and the “absence-of-record” testimony

The Court framed the hearsay question precisely: Did the custodian’s testimony that he reviewed the official records and found no decertification request convey any out-of-court “statement” offered for its truth? The answer was no. The testimony recounted:

  • His statutory role as custodian of motor vehicle records (RSA 260:14, II(b));
  • That decertification must be requested in writing and that decertification hearings are recorded and retained (RSA 262:24; Saf-C 1017.06, 1017.07);
  • That he checked “the records” for a request; and
  • To his knowledge, no request had been made.

None of this transmitted an out-of-court assertion. The testimony described the structure of the recordkeeping system and the custodian’s personal review of that system. Because hearsay requires a “statement” (an assertion) made out of court and offered for its truth (N.H. R. Ev. 801(a), (c)), testimony about the absence of any such assertion in the records is not hearsay at all. The Court therefore did not need to resort to hearsay exceptions or alternative theories; it concluded, as a matter of law, that this was simply not hearsay.

Two features underpinned the reliability and admissibility of the testimony:

  • The witness’s status as the chief hearings examiner and custodian of the relevant public records; and
  • The codified administrative process: decertification requires a written request, and all decertification hearings are recorded and saved. This institutional structure makes a search of the records probative of whether a request was ever made.

The trial court’s ruling overruling the hearsay objection was therefore not an “unsustainable exercise of discretion” under Dana.

2) Lesser-included offense (OAS) instruction

The Court applied the established two-part test: a defendant is entitled to a lesser-included instruction when (1) the lesser offense is legally encompassed within the greater; and (2) there is a rational evidentiary basis to convict on the lesser rather than the greater.

The legal inclusiveness prong was undisputed: OAS is embraced within driving after certification as a habitual offender. The dispute centered on the evidence-based prong—whether the record supported a rational basis to convict on OAS (knowledge of license suspension/revocation) while acquitting on the habitual-offender charge (knowledge of habitual-offender status).

The Court held there was no such basis, for reasons paralleling Watkins and distinguishing Gauntt:

  • Only revocation in evidence flowed from the habitual-offender certification: Although the parties stipulated that the defendant had enough underlying driving offenses to qualify as a habitual offender, there was no evidence about the nature or penalties for those offenses—no separate, independent license suspension or revocation was proved. The sole proven revocation was the habitual-offender revocation itself.
  • Consequently, the evidence that would show knowledge of “revocation” is the same evidence that shows knowledge of habitual-offender status: As Watkins explained, when the only revocation is the habitual-offender revocation, evidence that the defendant knew his license was revoked necessarily supports the inference that he knew it was due to his habitual-offender certification. There is no rational evidentiary wedge to separate the two knowledge elements in that circumstance.
  • No state-of-mind evidence like Gauntt: In Gauntt, the defendant testified to specific facts about his subjective understanding (e.g., believing his habitual-offender status was “wiped out,” memory problems, advice from DMV that omitted HO status), which provided a rational basis to find knowledge of suspension but not knowledge of habitual-offender status. Here, there was no such testimony or evidence of subjective misunderstanding or confusion.
  • Temporal gap does not supply a rational basis: The six-year interval between certification and arrest did not create a rational basis to decouple the knowledge elements; the gap was even longer in Watkins, and still no lesser instruction was warranted there.

Because the defendant offered no evidence that would permit the jury to find knowledge of a license suspension or revocation without also finding knowledge of habitual-offender status, the trial court correctly declined a lesser-included OAS instruction.

Finally, the Court noted the parties’ disagreement about the standard of review (unsustainable exercise of discretion per Gauntt versus de novo per Brooks) and expressly declined to resolve it, because the outcome was the same under either standard.

Impact and Forward-Looking Implications

A. Evidence law: “Absence-of-record” testimony as non-hearsay

Judkins squarely confirms that testimony by a qualified records custodian describing a search of official records and the absence of a required filing (here, a written decertification request) is not hearsay, because it does not convey any out-of-court assertion. Practically, this has several effects:

  • Simplified foundation: The State can elicit non-hearsay testimony about the absence of a filing by establishing (i) the custodian’s role; (ii) the recordkeeping requirements (e.g., written requests required; hearings recorded and retained); and (iii) the custodian’s search and resulting absence. This avoids the need to fit the evidence within a hearsay exception when no “statement” is being offered.
  • Broader applicability: The logic extends to comparable regulatory contexts where a filing or event would generate a record (e.g., no application on file, no permit issued, no restoration letter sent/received), provided the requisite administrative framework and retention practices are established through the witness.
  • Confrontation considerations: Because the testimony is not hearsay, Confrontation Clause issues associated with testimonial hearsay are generally avoided. The live custodian is available for cross-examination about the completeness and reliability of the search.

B. Criminal law and trial practice: Lesser-included instructions in habitual-offender cases

Judkins reinforces a key lesson from Watkins and Gauntt about the second prong of the lesser-included test (the rational basis requirement):

  • Defense strategy: If the only proven suspension/revocation is the habitual-offender revocation, and there is no independent evidence of a separate suspension or any state-of-mind evidence undermining knowledge of habitual-offender status, a lesser-included OAS instruction will almost certainly fail under Watkins. To unlock Gauntt’s path to a lesser instruction, defendants must offer credible evidence about their subjective state of mind or about a separate, independent revocation that could support knowledge of suspension without knowledge of HO status.
  • Prosecution strategy: The State can often foreclose a lesser-included instruction by tightly framing the evidence to show that the only revocation in play derives from the habitual-offender certification and by introducing proof (e.g., service of the certification order, advisement of the decertification process) that supports knowledge of habitual-offender status.
  • Temporal arguments are insufficient: The mere passage of time between certification and the charged conduct does not create a rational basis for a lesser-included instruction absent additional, specific evidence bearing on knowledge.

C. Administrative law: Decertification is not automatic

The opinion underscores—through the certification order’s language and the administrative rules—that habitual-offender status does not evaporate with the expiration of the revocation period. Restoration requires:

  • A written request for a decertification hearing;
  • A favorable decertification decision; and
  • Written restoration by the Director of Motor Vehicles plus possession of a valid license.

This clarity matters in both criminal exposure and defense narratives: a good-faith belief that time alone restored driving privileges is not enough without concrete evidentiary support comparable to Gauntt.

D. Standards of review: A flagged, unresolved question

The Court acknowledged, but did not resolve, a possible shift in the standard of review for lesser-included instructions (Gauntt’s unsustainable-exercise standard versus Brooks’s suggestion of de novo review). Practitioners should preserve arguments under both standards and monitor how future cases reconcile or clarify the appropriate lens. For now, Judkins signals that under either standard, the record must contain a genuine, rational basis to sever the knowledge elements to warrant a lesser instruction.

Complex Concepts Simplified

  • Hearsay vs. non-hearsay: Hearsay is an out-of-court “statement” (an assertion) offered to prove the truth of what it asserts. If no out-of-court assertion is being relayed—e.g., a custodian testifies that a required filing is not found in the official records—the testimony is not hearsay because it conveys no statement by someone else.
  • Habitual-offender (HO) certification: A status imposed after specified qualifying offenses that revokes driving privileges. It remains in effect until the driver is formally “decertified” and privileges are restored in writing, with a valid license in hand. It is not self-terminating upon the mere passage of time.
  • Decertification: An administrative process that must be initiated by the driver through a written request for a hearing. The Bureau records and retains decertification hearings. A successful decertification plus written restoration and a valid license are all required before driving can lawfully resume.
  • OAS (Operating After Suspension/Revocation): A misdemeanor requiring proof that the defendant’s license had been suspended or revoked and that the defendant drove with knowledge of that suspension or revocation (RSA 263:64).
  • Lesser-included offense instruction: The jury may be instructed on a lesser charge included within the greater charge if two things are true: (1) legally, the lesser is part of the greater; and (2) factually, there is a rational basis for convicting of the lesser while acquitting of the greater. In HO prosecutions, the key question is whether the evidence rationally allows the jury to find knowledge of suspension without knowledge of HO status.
  • Unsustainable exercise of discretion vs. de novo review: Two standards of appellate review. The former is deferential to the trial court’s judgment on evidentiary or instructional rulings; the latter reviews the legal question anew. Judkins indicates the outcome here is the same under either standard.

Conclusion

State v. Judkins delivers two clear, practice-shaping clarifications. First, when a qualified Department of Safety records custodian testifies that a search of the official records reveals no decertification request, that testimony is not hearsay because it transmits no out-of-court assertion. This provides a straightforward route to proving the ongoing validity of habitual-offender status without resorting to hearsay exceptions, so long as the agency’s recordkeeping protocols are established.

Second, the decision reaffirms the Watkins/Gauntt framework for lesser-included OAS instructions in habitual-offender prosecutions. Without independent evidentiary grounds to separate the knowledge elements—either a distinct, non-HO basis for suspension/revocation or credible state-of-mind evidence like that in Gauntt—the jury should not be instructed on OAS. Mere passage of time or generalized uncertainty does not create the required rational basis.

Judkins also flags, without resolving, the appellate standard-of-review question raised by Brooks, signaling an area to watch. But on the merits, the case provides concrete guidance to trial courts and litigants: record custodians can testify to the absence of decertification as non-hearsay, and lesser-included OAS instructions in HO cases require genuine, case-specific evidence that could lead a reasonable jury to differentiate between knowledge of suspension and knowledge of habitual-offender status.

Case Details

Year: 2025
Court: Supreme Court of New Hampshire

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