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 What follows is an example of how outdated assumptions made by the law affected a client of mine who had moved from Maine to Florida, resulting in a charge of OAS.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:

1. Has received written notice of a suspension or revocation from the Secretary of State or a court;
2. Has been orally informed of the suspension or revocation by a law enforcement officer or a court;
3. Has actual knowledge of the suspension or revocation;
4. Has been sent written notice in accordance with section 2482 or former Title 29, section 2241, subsection 4; or
5. 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.

Result

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

Facing Felony Domestic Violence Charges

A domestic violence charge in Maine occurs when certain crimes, such as assault, criminal threatening and terrorizing, among other crimes, are committed against a family or household member. In most cases, domestic violence charges in Maine are misdemeanors.   Maine domestic violence can be raised to a felony if certain aggravating factors exist.  One example of an aggravating factor which raises the charge to a felony is having a prior domestic violence related conviction.

Unfortunately, this situation happens more often then we would like when a person is charged with a Domestic Violence charge in Maine and I have handled many cases that were, although they involved misdemeanor conduct, charged as Felonies due to the aggravating factor of a prior domestic violence related conviction.  What follows is none example of how I helped one of my many clients out of Felony Domestic Violence Charges.

When my client came to my office, he was facing:

• one count of felony Domestic Violence Assault
•  one count of felony Domestic Violence Terrorizing
•  one count of misdemeanor Criminal Mischief.

In Maine, the police and District Attorneys take all matters of domestic violence very seriously, and they take felony domestic violence matters extremely seriously.  The reason my client was charged with felony domestic violence is because he had a prior conviction for violating a Protective Order.  A protective order is the result of a successful PFA, it is a civil order designed to reduce the incidence of domestic abuse between family of household members.  See matter for more information.

How Maine Defines Domestic Violence Charges

Maine Statute, 17-A M.R.S.A. §207-A details the Domestic Violence Assault law in Maine.  According to Maine Law,

1. A person is guilty of domestic violence assault if:

1. The person violates section 207 (Assault) and the victim is a family or household member as defined in Title 19-A, section 2004, subsection 4.  Violation of this paragraph is a Class D crime; or
2. The person violates paragraph A and at the time of the offense:

(1)    Has one or more prior convictions for violating paragraph A or for violating section 209-A (Domestic Violence Criminal Threatening), 210-B (Domestic Violence Terrorizing), 210-C (Domestic Violence Stalking) or 211-A (Domestic Violence Reckless Conduct) or one or more prior convictions for engaging in conduct substantially similar to that contained in paragraph A or in section 209-A, 210-C, or 211-A in another jurisdiction;

(2)    Has one or more prior convictions for violating Title 19-A, section 4011, subsection 1 (Violating a Protective Order) or one or more prior convictions for engaging in conduct substantially similar to that contained in Title 19-A, section 4011, subsection 1 in another jurisdiction;

(3)    Has one or more prior convictions for violating Title 15, section 1092, subsection 1, paragraph B (Violating Condition of Release) when the condition of release violated is specified in Title 15, section 1026, subsection 3, paragraph A, subparagraph (5) or (8) when the alleged victim in the case for which the defendant was on bail was a family or household member as defined in Title 19-A, section 4002, subsection 4.

Violation of this paragraph (3) is a Class C crime.  If convicted of a Class C crime, the maximum penalties would include up to $5,000.00 in fines and up to five (5) years jail time, as well as designation as a felon.

Domestic violence terrorizing is defined by the Maine Statute, 17-A M.R.S.A. §210-B.  Domestic violence terrorizing is defined as

1. A person is guilty of domestic violence terrorizing if:

1. The person violates section 210 (Terrorizing) and the victim is a family or household member as defined in Title 19-A, section 2004, subsection 4.  Violation of this paragraph is a Class D crime; or
2. The person violates paragraph A and at the time of the offense:

(1)    Has one or more prior convictions for violating paragraph A or for violating section 209-A (Domestic Violence Criminal Threatening), 210-B (Domestic Violence Terrorizing), 210-C (Domestic Violence Stalking) or 211-A (Domestic Violence Reckless Conduct) or one or more prior convictions for engaging in conduct substantially similar to that contained in paragraph A or in section 209-A, 210-C, or 211-A in another jurisdiction;

(2)    Has one or more prior convictions for violating Title 19-A, section 4011, subsection 1 (Violating a Protective Order) or one or more prior convictions for engaging in conduct substantially similar to that contained in Title 19-A, section 4011, subsection 1 in another jurisdiction;

(3)    Has one or more prior convictions for violating Title 15, section 1092, subsection 1, paragraph B (Violating Condition of Release) when the condition of release violated is specified in Title 15, section 1026, subsection 3, paragraph A, subparagraph (5) or (8) when the alleged victim in the case for which the defendant was on bail was a family or household member as defined in Title 19-A, section 4002, subsection 4.

Violation of this paragraph (3) qualifies as a Class C crime.  If convicted of a Class C crime, the maximum penalties would include up to $5,000.00 in fines and up to five (5) years jail time, as well as designation as a felon.

Facts of the Case

Previously, my client had been having an on-again, off-again relationship with his girlfriend, but they were trying to make it work for the child they had together.  It had all started when an ongoing argument escalated, and the victim called 9-11 claiming that my client had assaulted and terrorized her by yelling and grabbing a cell phone out of her hands.  According to my client, the victim’s version of events was not what had actually happened.  The complaining victim did not have any physical signs of any offensive contact or altercation with her boyfriend.

Weaknesses in the Police Investigation/ State’s Case

In domestic violence assault cases, the State’s evidence is usually in the form of witness statements, especially the victim’s version of events.  Problems can occur, however, when there are questions surrounding the credibility of the State’s complaining victim.

In this case the alleged victim had provided a written statement to the police after they had interviewed her.  Her written statement was inconsistent concerning certain details with what she had told the police.  Details about what prompted the incident, where the incident had occurred, how my client allegedly threatened her, how her property was damaged.  Even more concerning, yet beneficial to the defense was a written statement made by the alleged victim concerning the prior PFA she had placed on my client and how she had fabricated the abuse, just so she could gain custody of their child and be done with him.

Since criminal defendants have a 6^th amendment right to confront their accusers in open court, the State would have had to put the complaining victim on the stand.  Had the victim testified at trial, I had intended to reveal every inconsistency in the victim’s statement and her admission of lying to get a PFA to attack her credibility for the jury to see and hear.

I had proposed to my client that we use a private investigator to interview the victim again.  However, my client felt that the credibility problems with the victim were so significant that the victim would not be truthful even when speaking to the private investigator.

Risks for Defendant/ Weaknesses of Defense Case

In this case, my client had a lot at stake because he was facing felony charges.  My client considered himself to be a law-abiding citizen, and he worked as a professional.  Felony status can be debilitating to a person’s life and work opportunities, and in his case, felony status would have been catastrophic.

What happened at Court

In many instances, especially when facing serious charges, the District Attorney can expect a defendant to roll over and plead guilty so as to avoid a public trial.  In this case, my client did not want to roll over and plead guilty to something he was adamant that he did not do, but he was not willing to risk a public trial.  I can understand the desire not to air one’s dirty laundry for public viewing, but sometimes the best cleanser is a trial.  I advised my client that he should become comfortable with going to trial because the DA was not just going to dismiss this case unless there was a good justifiable reason.  I know that one good reason from the DA’s perspective is that if there is a strong, likelihood of an acquittal, then the State would be more inclined to “dump” the case.

As the case moved through they system, the State’s offers progressed from just pleading guilty as charged, to a drop down from the felonies, to a deferred disposition.  We declined them all and set the case the case for Jury Selection by demanding a trial.  Thankfully my client trusted in my advice and stood his ground.  Taking the case to trial pushes the District Attorney to consider how they will actually prove the case against my client.  In this case, the closer to trial we got, and my emphasis on the lack of credibility of their star witness concerning her written admission of lying to get a PFA, the DA determined that credibility issues were just to much to overcome and agreed to outright dismiss the two felony DV charges and file the remaining misdemeanor criminal mischief charge, which was later dismissed as well.

How the result fit in the big picture

This outcome was excellent for my client.  He still wanted to avoid a trial because he did not want to embarrass his girlfriend.  They were working things out and dedicated to raising their child.  This is understandable.  As a Maine criminal defense attorney, it’s a good idea to keep in mind that our clients go on living their lives after they are done with their criminal matters and our advocacy.  If I had attacked his girlfriend’s credibility and highlighted her dishonesty, that would have been great in achieving an acquittal, but not so great in allowing them to work together in the future to raise their child.  This resolution also met my goal of achieving a dismissal of all charges felony and misdemeanor, as well as preserved my client’s good name.  Both my client and I were very happy about this outcome.