For students taking driver’s education, the teacher usually makes the point that “going Habitual Offender” is a bad thing. Habitual Offender (HO) status occurs when you either accumulate three (3) motor vehicle-related convictions within a five (5) year period or ten (10) moving vilations within a five (5) year period. Perhaps the teacher was fond of using a distinct Maine accent while talking about “Habitual Offend-ah” status, inciting a quiet chuckle in the classroom. Going Habitual Offender is no laughing matter. Being caught driving after going habitual offender is known as Operating After Habitual Offender Revocation.
Habitual Offender Status is a near-permanent suspension of your driver’s license, called revocation. The State of Maine offers few opportunities from relief from Habitual Offender revocation. And, opposed to a “garden variety” charge for Operating After Suspension, a charge for Operating After Habitual Offender Revocation is a more serious crime with increasingly draconian mandatory minimum penalties.
If you are already a Habitual Offender, the best advice for you is not to operate a motor vehicle. If you do drive and are caught while your license has been revoked, your first course of action should be to contact a criminal defense attorney to defend your case. The Nielsen Group has proven experience in representing Habitual Offender cases. We are happy to answer your questions and meet with you for a free legal consultation.
If you are facing allegations of Operating After Habitual Offender Revocation, this article will help you figure out the impacts of this charge and hopefully answer some of your questions. We will review what you can expect to and what you can do to help your defense.
- What happens after an Operating After Habitual Offender Revocation Arrest?
- What are the Maine Law and Penalties for a conviction of Operating After Habitual Offender Revocation?
- How can a criminal defense attorney help to fight an allegation of Operating After Habitual Offender Revocation?
- What are the possible outcomes for an Operating After Habitual Offender Revocation charge?
- What is the court process for an Operating After Habitual Offender Revocation offense?
If there are any questions that we do not answer concerning your Operating After Habitual Offender Revocation charge, please feel free to contact us.
An example of Operating After Habitual Offender Revocation
The Maine Law for Operating After Habitual Offender Revocation charges are complicated and quite stringent. There is not a lot of room for finding your way. To help explain what happens after an arrest, here is a fictional example of how easy it is to end up with a charge of Operating After Habitual Offender (HO) Revocation. In our story is a woman named Brandie, a single mom to a preschool-aged daughter who works as a home health aide. Her job requires her to drive her own car to the homes of her elderly clients. Brandie has a big heart. She cares for her daughter and she cares for her elderly clients. However, when it comes to paying attention to her own affairs, she tends to be forgetful.
It all started when she got that speeding ticket that she cannot remember how long ago it happened. Because she never paid the civil fine, her license went under suspension. She continued to drive. She racked up two (2) Operating After Suspension (OAS) criminal charges and one Criminal Speeding charge within the past five (5) years, all the time never adhering to her license suspension requirements, and never taking care of that underlying speeding ticket that started it all.
Each and every time, Brandie took what she thought was the “path of least resistance” by going to the Court, entering a guilty plea, and paying the fine. Because these charges were all low-level misdemeanors, Brandie never thought that her issues were serious enough to talk to an attorney. It was just easier and more convenient for Brandi to go to Court whenever she could squeeze in the time and plead guilty. After she plead guilty and paid the fines, her charges were “out of sight, and out of mind.”
After Brandie’s last Criminal Speeding conviction, the Maine Bureau of Motor Vehicles (BMV) designated her as a Habitual Offender (HO) and revoked her driver’s license. The BMV sent her a notice, but Brandie disregarded it without fully understanding what being designated as Habitual Offender meant.
Operating After Habitual Offender Revocation
It was only when Brandie was pulled over again for an expired inspection sticker that she got the shock of her life. The officer informed her that she was operating a motor vehicle on a revoked license. “Revoked!” Brandie was horrified. “No one ever told me I was revoked.” This was the first time Brandie focused and realized that there was something serious going on with her driver’s license. Brandie pleaded to the officer, “If I had known that I was revoked, I would not have gotten behind the wheel.” Brandie begged “I am not a criminal!” and then pleaded for the officer to let her go.
The officer was not persuaded and instead arrested Brandie. Since she was alone in her car and there was no one available to come take her car, she watched the tow truck tow her car to the impound lot from the back seat of a police cruiser. At the police station Brandie made bail and was issued a summons for Operating After Revocation. Before she left the officer reminded Brandie that she was not to drive and that she had to appear at Court on the date listed on the Summons for Operating After Habitual Offender Revocation. Brandie was beside herself with stress. She needs to drive for her job, and she feels that she has “no one” to help her take care of her daughter. The time had come to contact an attorney.
Law and Penalties for Operating After Habitual Offender Revocation
Maine Statute 29-A M.R.S.A. Sec. 2557-A governs Operating after habitual offender revocation.
The elements of an Operating After Habitual Offender Revocation charge are:
- Operating a motor vehicle on a public way
- Operating a motor vehicle when license revoked
- And that person
- Has received written notice of the revocation from the Secretary of State;
- Has been orally informed of the revocation by a law enforcement officer;
- Has actual knowledge of the revocation; or
- Is a person to whom written notice was sent in accordance with section 2482 or former Title 29, section 2241, subsection 4;
So let’s take a deep look at what these elements mean
Operating a motor vehicle on a public way
Operating a motor vehicle on a public way means you were driving on a road ,whether paved or dirt, that is managed by a state, city or county agency. This term has a broad meaning. The best way to think of it is, if you are on a road that is capable of being traversed by a vehicle, you are on a public way.
Operating a motor vehicle
Operating a motor vehicle means driving or getting ready to drive. Once you are sitting in the driver’s seat and taking actions to start or drive the vehicle, you are considered to be operating the motor vehicle. According to the law, a motor vehicle can be your average car, a commercial motor vehicle, motorcycle, or other motorized vehicle. In some cases, although an ATV is not excluded from the definition of a motor vehicle, it can be considered as one if operated on a public way over a distance. So if you were out driving your ATV on a public road, you can be charge with Operating after Habitual Offender Revocation in Maine.
When License is revoked and that person was sent written notice of the revocation
When it comes to Operating after Habitual Offender Status, the BMV needs to show that you were given notice of the HO designation. Unlike in OAS cases where an individual is presumed to have notice so long as the BMV sends it, in OAR cases, the BMV needs to show you received it. You can also be told of the revocation by a police officer or be made aware during some other transaction with BMV or with the Court where you were informed that you have been designated as Habitual Offender.
The charge of Operating After Habitual Offender Revocation is a strict liability crime, meaning that it does not matter whether or not Brandie knew or intended to drive on a revoked license. She drove on a revoked license, period. Therefore, she is facing criminal charges.
For a first offense Operating After Habitual Offender Revocation in the past 10 years, the crime is a Class D misdemeanor. A first offense Operating After Habitual Offender Revocation carries stringent mandatory minimum penalties:
- $500.00 minimum fine
- 30 days minimum jail time
Mandatory minimum penalties mean that they are the least severe penalties that Brandie could expect with a conviction. The Court may not suspend these mandatory minimums, nor can the Court agree to reduce these penalties any further. The maximum penalties for a Class D misdemeanor include up to $2,000.00 in fines and up to 364 days jail time.
If the penalties for a first offense seem overwhelming, they only get worse with subsequent charges:
Fine$500$2,000Jail Time48 hours because of the presence of minors in the vehicle at the time of the stop.Up to 1 yearDriver’s LicenseCourt ordered suspension for 150 days in addition to a BMV suspension of 1 year plus six months for the minor passengers./td>Court ordered and BMV order suspension for 150 days.
| Number of Offense for Operating After Habitual Offender Revocation |
MANDATORY MINIMUM JAIL
|
MANDATORY MINIMUM FINE
|
|---|---|---|
| Second Offense or prior OUI within the past 10 years- Class C felony | 6 months | $1,000.00 |
| Third Offense or prior OUIs within 10 Years- Class C felony | 9 months | $1,000.00 |
| Fourth Offense or prior OUIs within 10 years- Class C felony | 2 years | $1,000.00 |
Therefore, Brandie’s habit of “just keep driving” despite any suspensions of her driver’s license now becomes a severe liability. Also, under normal circumstances for a Habitual Offender, the BMV may grant a single opportunity for relief from revocation with a petition after three (3) years have passed. If Brandie gets convicted of violating her revocation, then she loses eligibility for her one and only opportunity for relief. In this case, the revocation would be for a minimum of six (6) years.
Can a charge of Operating After Habitual Offender Revocation be Aggravated?
A charge of Operating After Habitual Offender Revocation can be Aggravated with the presence of certain aggravating factors, such as:
- If the driver had been stopped for Operating Under the Influence (OUI) at the time of revocation
- If the driver had been stopped for Driving to Endanger (DTE) at the time of revocation
- If the driver had been Eluding an Officer at the time of revocation
- If the driver had passed a roadblock at the time of revocation
- If the driver had been Criminal Speeding at the time of revocation
With the presence of aggravating factors upon conviction, it increases the mandatory minimum penalties that the defendant would face. This fact makes it all the more important for anyone accused of Operating After Habitual Offender Revocation should seek the advice of a criminal defense attorney.
How a Criminal Defense Attorney Can Help
When Brandie met with her criminal defense attorney and found out the severity of what she was facing, she broke down into tears. But with reassurance and some tissues, Brandie came to understand that she had a fighting chance. Some of the things working in her favor were the facts that she had no criminal record aside from the misdemeanor driving crimes, and she had always been a good citizen. It is often not worth the District Attorney’s time to go after small-time crimes when there are far more serious crimes in their caseload.
- Problems with the Stop – Did the officer have the requisite reasonable articulable suspicion to pull you over? Did the officer have the requisite probable cause to arrest Brandie?
- Preserving Any Video Evidence from the Police Cruiser/ Intoxilyzer room – The single best piece of evidence in an OUI case, whether for the State or the defense, is the video from the police cruiser documenting the stop. Was Notice Properly Provided?- In contrast to a typical OAS situation, where the notice standards are less demanding, the BMV has to make sure that you actually receive the Habitual Offender notice in the mail. Since Brandie swears that she never received it, there should be a record of a return of that notice to the BMV office that sent it.
- Were the prior crimes counted towards Brandie’s Habitual Offender status proper? In order to go Habitual Offender, the three motor vehicle crimes counted must be counted properly. Certain offenses are not eligible to be counted towards Habitual Offender status, and so you want to be sure that the ones that were included could be included under Maine law.
Possible Outcomes for Operating After Habitual Offender (HO) Revocation
Here are some possible outcomes for a charge of Operating After Habitual Offender (HO) Revocation:
- Dismissal– In the best possible outcome, the District Attorney agrees to dismiss the charge outright.
- Plea Agreement– Through negotiation with the District Attorney, a possible outcome could be arriving at a resolution that would ultimately not impact driving privileges. This way, the District Attorney’s Office gets their “pound of flesh” and the defendant avoids the mandatory minimum penalties for a conviction.
- Mandatory Minimums– If the defendant is convicted of the charge for Operating After Habitual Offender Revocation, then the least severe sentence would be the mandatory minimum penalties that were described above. Unfortunately, mandatory minimums cannot be reduced any further.
In the event that Brandie faces mandatory minimum penalties, her license remains on Habitual Offender status. When clients face an extended period of license suspension or revocation, I often sit down with them to have a frank discussion about their lifestyle. Often, a person’s life choices, such as where they live and work, are just not compatible with a revoked driver’s license. This will take some difficult lifestyle choices. Instead of living in a rural area that forces her to drive, Brandie could consider moving to an urban area where she would have access to public transportation, which would allow her to get to and from work, and her daughter to and from school, all the while respecting her revocation and avoiding any further criminal trouble.
Court Process for Operating After HO Revocation
Arraignment and Bail
At Arraignment, Brandie answers to the charge in the form of Not Guilty. If she already has a criminal defense attorney, and her OAR is charged as a misdemeanor then she does not have to attend Arraignment in person. However, if Brandie were facing a second offense, in which the charge would be a felony, she would be required to attend all court dates in person.
Dispositional Conference
A dispositional hearing is a court date that determines whether Brandie’s case will be going to trial. At the Dispositional Conference, the attorneys meet to negotiate a potential resolution without going to a trial. Brandie gets to decide whether she is willing to accept any of them. If not, then the case would progress to pretrial hearing and jury trial.
Pretrial Motion Hearing and Trial
If the criminal defense attorney has any reason to believe that any evidence might have been obtained in violation of Brandie’s constitutional rights, then the defense attorney would file a Motion to Suppress that questionable evidence. If the Suppression Motion is successful, the questionable evidence gets left out of evidence at Trial.
Trial
A trial is a person’s very public day in court. Often, defendants face the question whether to have a jury trial or a trial in front of a judge. The judge decides cases based on the letter of the law. However, the jury often can see thing from a Defendants point of view and put themselves in your shoes and reach “reasonable doubt”.
The outcome of the trial is the defendant is found guilty or not guilty by the fact finder. When you have a strong legal advocate, you have a better chance of resolving the charges before ever reaching a trial.
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