As we often find in life, people move. Not just figuratively, we are a mobile society. People change their locations and move for their education, career, family, or just a change in scenery. People are no longer tied to their home town, and changing residency from State to State is becoming commonplace. However true this may be, sometimes legal policy in a State has to catch up to ever changing realities. What follows is an example of how outdated assumptions made by the law affected a client of mine who had moved from Maine to Florida, resulting in a charge of OAS. In this case, the OAS was charged alleging a prior.
The Maine OAS Statute: 29-A M.R.S.A § 2412-A
Operating while license suspended or revoked
1-A. OFFENSE; PENALTY. A person commits operating while license suspended or revoked if that person:
A. Operates a motor vehicle on a public way or in a parking area when
that person’s license has been suspended or revoked, and that person:
- Has received written notice of a suspension or revocation from the Secretary of State or a court;
- Has been orally informed of the suspension or revocation by a law enforcement officer or a court;
- Has actual knowledge of the suspension or revocation;
- Has been sent written notice in accordance with section 2482 or former Title 29, section 2241, subsection 4; or
- Has failed to answer or to appear in court pursuant to a notice or order specified in section 2605 or 2608;
Because of the alleged prior offense, if convicted, my client could have seen a mandatory minimum fine of $500, and additional suspension of their right to operate a motor vehicle for 60 days from the BMV, as well as the risk being designated as a habitual offender. The maximum sentence could have included six months jail and $1,000.00 in fines.
OAS and Sending Notice to Last Known Address
When your Maine driver’s license goes under suspension, the BMV sends you a notice in the mail to your last known address. In fact, if you change your address, you are obligated to inform the BMV of your new address. Also, the BMV does not forward its mail. This means that if you move and you fail to update your address with the BMV, the BMV will send out a notice of suspension to your last known address only. Maine law considers this to be sufficient notice. The issue in this case was how far the State can push the concept of an obligation to inform the BMV of changes to your address?
Facts of the Case
Client had lived in Maine originally, but then moved to Florida, becoming a resident of that State. While still living in Maine, my client became obligated to maintain proof of insurance with the BMV. My client moved to Florida, and provided the Maine BMV with her new address in Florida. However, before she surrendered her Maine driver’s license, the Maine BMV suspended her driver’s license for failure to maintain insurance. The suspension notice was sent to the address she provided in Florida. However by that time, my client was a Florida resident and had moved to a different address in Florida. The notice from the Maine BMV never reached her. Sometime later, my client returned to Maine to attend a family event, and was stopped by the Maine police for speeding, and charged her with OAS, because Maine showed her right to operate a motor vehicle as being under suspension. A conviction for this charge would have affected her driving privileges in Florida as well. My client was driving because she never received the Notice of Suspension, and so she continued driving everyday like all of us, and she was unaware that her Maine driving privileges were suspended.
Weaknesses in the State’s Case
Here, the issue was whether an out-of-State resident has an obligation to update their out-of-state address with the Maine BMV. The State attempted to argue that this was indeed the case. Practically, this position would not only be a nightmare of red tape, but it would also place a huge burden on people who move away from Maine to another State.
Risks for the Client
Not only was my client facing a suspension of her right to operate a motor vehicle in Maine, as well as a $500.00 fine if convicted, the State of Florida also would have suspended her Florida driver’s license until her driving privileges in Maine were restored. This would have caused a very big problem for my client for her employment. Furthermore, another conviction for a motor vehicle crime would increase the risk of being designated Habitual Offender in Maine, or the Florida equivalent. My client informed me also that she could not make any trips from Florida to Maine to fight this case. If a client does not attend court in person, this can often put difficult restrictions on a criminal defense attorney to be able to fight the case.
Defending the Case
When my client retained me and relayed the facts about this case, the first words out of my mouth were; “How can they expect you to update your address with the Maine BMV when you are no longer a Maine resident? This case should be dismissed.” Much to my dismay, when I appeared at arraignment on behalf of my client to enter a Not Guilty plea, the Assistant District Attorney would not agree to dismiss the case, or even offer anything but a fine in return for a guilty plea and a conviction. Apparently, my client had a bad driving record, and the State wanted a conviction. Since at this point the case was in the District Court, I deduced that the Assistant District Attorney was under orders to secure a conviction.
The next date in the District Court would have been a Bench Trial, where the Court would hear any pending motions, such as my Motion to Dismiss, just prior to a trial in front of a Judge. Because my client was not there, I had to remove the case from the District Court to the Superior Court where I could get a separate hearing to argue my dismissal motion.
Upon hearing the news that the State refused to be reasonable at the District Court and that this case was heading to the Superior Court, my client became understandably concerned about how long it was taking to resolve the case, and she began asking questions about what might happen if she pled guilty. While I could understand where she was coming from, I counseled vigorously against making a hasty guilty plea and urged my client to let me fight it out in the Superior Court. Thankfully, with her emotions calmed, my client agreed with my assessment that this case should be dismissed, and a Motion to Dismiss in the Superior Court was our most direct route, as I could argue it without her having to come to Maine for court.
What happened at Court
The first hearing at the Superior Court was the dispositional conference/docket call, were Defense Counsel and the District Attorney discuss the merits of the case and come to an agreed to resolution if possible. The next Court date after that would have been for my pending Motion to Dismiss. Before the dispositional conference, I had secured my client’s driving records from Maine and Florida, showing when my client became suspended and when she had changed addresses in Florida. It was clear that my client had moved after she became a Florida resident. Therefore, Maine had sent the notice of suspension to my client’s old Florida address. Also, before the dispositional conference, I received another offer from the State that included my client pleading guilty and paying a fine. I declined that offer, and informed the District Attorney of my pending Motion to Dismiss. We discussed the merits of my motion, and reviewed my client’s Maine and Florida driving records. Just as it was clear to me, it became clear to the District Attorney also that the State was going to have a difficult time arguing that a person who is a resident of a different state, in this case Florida, has an obligation to inform the Maine BMV of address changes in Florida. I advocated that the answer to the question, “whether non-Maine residents are obligated to inform the Maine BMV of changes to their out-of-State address”, should be no, and that the District Attorney dismissed the case after our discussion.
Dismissed by the State at Dispositional Conference. Most importantly, the Client never had to travel back to Maine to appear at Court, saving her both time and frustration. My client was very pleased to say the least and provided this recommendation:
“I just want to personally thank Mr. Nielsen for a job well done! Your professionalism and true caring for my case was greatly appreciated. Not only did Chris believe in my case but he convinced me to fight it instead of pleading guilty. Chris got my case dismissed for me without me having to take one step into the courtroom. This office has very reasonable pricing and an educated lawyer to help you make the correct decision with your legal matters. I highly recommend The Nielsen Group if you feel that you are being taken advantage of or unfairly tried. A great big thanks for bringing my charge to Justice and taking care of something that could have affected my professional goals of the next ten years.” – B.E