8 Appeals that Maine Criminal Defense Attorneys Won in 2012

kirstyhall from flickr

As of this writing, the Maine Supreme Judicial Court has published 138 opinions in 2012 and 43 of them took up Criminal matters. By my count, 11 of those resulted in reversal of some type, but a few were either hollow victories or did not interest me. Here is my year-end wrap up of 8 cases where the defense won, and maybe made some good law. Here they are in the order decided. If there is anything I missed, post it in the comments or on social media pointing back to me or the blog.

1. Self Defense Applies to Reckless Conduct, Judges should Give the Damn Instruction More

State of Maine v. Kenny L. Ouellette 2012 ME 11

• Self defense applies to reckless conduct. Jury should have been instructed.
• Case includes good discussion of Maine's self defense law

Kenny L. Ouellette appealed his conviction for misdemeanor reckless conduct, after a Jury Trial on that charge and a misdemeanor assault. Ouellette used a baseball bat to fend off attackers who confronted him at a stop light after threatening him over the phone. A self defense instruction was given as to the assault charge and the jury acquitted on that count. The judge refused to instruct the jury on self defense as to the reckless conduct charge reasoning that the defense was not available for crimes where the state of mind was recklessness.

In vacating the conviction, the court reasserted that "a defendant may seek a self-defense instruction pursuant to section 108 for any charge that includes an intentional, knowing, or reckless state of mind as one of its elements." ¶20.

2. Maine's Hearsay Rule: Better Than Bruton for Statements Against Interest

State of Maine v. Jesse Guyette 2012 ME 10

• Maine has a very narrow Statements against penal interest hearsay exception. 804(b)(3) does not allow admission of out of court statements, against a defendant, which implicate both the declarant and the accused.

Guyette was convicted of Felony Drug Possession. Allegations were that he provided money to another man, Drost, to buy pills from a third man, Skidgel, and then delivered the pills to Guyette. Drost invoked his 5th amendment right to remain silent and refused to testify. Skidgel did testify and recounted a phone conversation with Drost. He said that he called Drost after learning that the money he was paid was counterfeit. His retelling of the conversation included assertions that (1) Guyette was the source of the money, (2) the money was exchanged for pills. Guyette's objections were overruled.

In vacating the conviction, the law court reasoned that the Maine rule in 804(b)(3) is more expansive than the "minimal requirements of Bruton." Whether the witness is a codefendant or not, the exception excludes out of court statements made by any person that implicate both the declarant and the accused. ¶14. 

3. Certified Driving History Not Enough for Operating After Suspension

State of Maine v. John R. Maynard 2012 ME 33

• Secretary of State certified driving record is not sufficient to prove Operating After Suspension unless accompanied by other proof of notice. 

Maynard was convicted of Operating After Suspension alleging that the suspension was imposed for failing to pay a fine. At trial, the evidence of suspension was the so called "blue seal" document from the secretary of state certifying that the indivudual was suspended on that date for failing to pay fines and including a driver history printout showing that the suspension was entered on the driving record before the date of offense. The evidence did not include a copy of a notice of suspension sent to Maynard.

In vacating the conviction the court held that proof of suspension must include one or more of the following:

1. docket entries noting the date and sending of the notice, 
2. a copy of the notice that was sent, or 
3. a clerk’s notation of the sending of the notice. ¶7

The court rejected the challenge that the documentary evidence violated the defendat's confrontation clause rights reasoning that the evidence was non-testimonial. ¶8

4. The $300 fine is Not Mandatory For Domestic Violence Assault

State of Maine v. Rogers Harrell 2012 ME 82

• Domestic Violence Assault does not have a mandatory minimum fine.

Nothing too dramatic here. The defendant plead guilty, the Prosecution and Defense both agreed that the fine was not mandatory. The Judge disagreed and ordered the fine, reasoning that since the normal assault statute has a mandatory fine, so should domestic violence assault, even though it is not in the language. The law court agreed with the parties and vacated the fine. I discussed this case in an earlier post if you want more information.

5. Carrying a Swiss Army Knife is No Longer (and never was) a Crime in Maine

State of Maine v. Kevin A. Jones 2012 ME 88

• The carrying a concealed weapon statute prohibits the concealed carry of knives designed as weapons, not utility knives.

Thank god this finally came before the court. For years, people have been convicted for carrying pocket knives. Jones was on probation and police searched him finding two folding knives clipped to his pants. The knives were the kind one can purchase at many retail stores. He was convicted after bench trial.

In vacating the conviction, the Court reasoned that, "even though most knives, including the knives at issue here, are capable of causing serious bodily injury, the plain language of the statute establishes that the Legislature did not intend to prohibit the concealment of all knives. Rather, the statute expressly prohibits the concealment of only those knives that are specifically designed to be usually employed in the attack on or defense of a person." ¶8. I discussed the case in more detail in this earlier post.

Bet you feel like an asshole if you ever plead anyone to this. I am pretty sure I didn't (maybe a few times when the guy was really insistant).

6. Police Detention for "Information Seeking Function" Limited

State of Maine v. Daniel Whitney 2012 ME 105

• Random suspicionless stop to verify that a person did not commit a crime is unreasonable without some other justification or a close connection to a serious investigation.

Police observed a car that had crashed and was abandoned. They found no occupant or blood, and had no leads as to what had happened. They began a "roving patrol" to locate any person who might have been involved. The police came upon a stopped car containing a driver and passengers, with no indication of anything illegal or suspicious. The driver was detained to confirm that he was not involved in the crash. The detention lead to discovery or alcohol and Whitney's prosecution for Operating Under the Influence. 

The court found the stop unreasonable and vacated the conviction. They opined that, while the information seeking purpose can justify an individual's detention without reasonable articulable suspicion such detentions need need to be reasonable. The court should consider whether the detention:

1. Was justified by sufficient gravity of public concern in the investigation
2. Is reasonably related to advancing the public interest
3. Does not unduly interfere with individual liberty ¶13

Here, the officer investigated a non fatal crash with no indication of other injury. The traffic stop occurred several miles from and 90 minutes after the crash. The officer exercised unfettered discretion and seized the defendant, without further justification, to see if he had a committed a crime. The stop was illegal.

7. Jury should have been instructed on Lesser Included Offense of Assault in Unlawful Sexual Contact Case

State of Maine v. James P. Gantnier 2012 ME 123

• Assault is a lesser included offense to Unlawful Sexual Contact

Defendant was alleged to have touched the victims genitals through her clothing while she was asleep. At trial, he claimed that he did touch her to wake her up but was not sure where he touched the victim since it was dark.

The opinion explains that lesser included offenses are those crimes:

1. necessarily committed when the greater offense is committed 
2. which cary lesser penalties than the greater offense and
3. are supported by the evidence at trial. ¶9-10

If the defense or Prosecution requests it, the lesser included charge should be submitted to the jury. Assault is necessarily committed when Unlawful sexual contact is. Though both are misdemeanors, the assault penalty is less since it's not among the misdemeanor crimes for which probation can be imposed. Also, there is no sex offender registration for assault. Since the evidence could have supported a verdict for either charge, assault should have been submitted to the jury. Conviction vacated.

8. Maine Misdemeanor Domestic Violence Assault Probation may be Unconstitutional

State of Maine v. Christopher L. Mosher 2012 ME 133

• Maine law allowing two years of probation for Misdemeanor Domestic Violence Defendants who are sentenced to do a Certified Batterers Intervention Program may violate the equal protection clause.

The case was remanded for further development of facts so there is not a lot to say at this point. The issue is that only a limited number of misdemeanors qualify for probation and that probation is only for a maximum of one year. The statute allows misdemeanor probation to extend for up to two years only for Domestic Violence convictions where the defendant is ordered to attend a Certified Batterer's Intervention Program. These programs will only accept men as students and so the law effectively punishes men more harshly than women. The issue was not fully developed at the trial level so the case was remanded for further hearing on:

1. Whether the Programs are available to wormen
2. If they are not, is the gender distinction substantially related to a legitimate government interest.

Of course, this would be pretty easy for the legislature to fix by allowing two years of probation for all domestic violence convictions.

Misconduct Suspension Recommended for ADA Mary Kellett

I posted before about Maine ADA Mary Kellett's Prosecutorial Misconduct Hearing. The allegations stem from a 2009 trial of Vladek Filler. Kellett prosecuted Filler for gross sexual assault and domestic violence assault against his wife. He was acquitted of the sexual assault but convicted of the lesser charge and sentenced to 21 days in jail. Filler maintained that his wife fabricated the allegations to gain advantage in a child custody dispute. In October, the board heard the misconduct petition and on 12/10/12, the pannel announced that it is recommending Suspension. 

These Stupid Stamp Graphics Drive me Crazy! [solved]

I have a thing for stamps. They communicate a lot of information about what was done with a document in just a glance. I really like the "scanned" stamp since I try to scan everything using my Fujitsu ScanSnap. If I see that stamp on the page, I know that the document is scanned and available to everyone in the office. If I don't see it, I know that the document needs to be processed.

Ex-Prosecutor James Cameron, Unironically Flees Child Porn Sentencing

The story is like something out of a movie: porn, trial, conviction  appeal, reversal and escape! It makes for exciting news just in reporting the facts. But the case also says something about what's wrong with the criminal process. 

Drug Dogs, Searches and Probable Cause: Updates and Additional Reading

In a recent post, I wrote about police drug dogs in two pending U.S. Supreme Court Cases. These cases consider how police use the dogs to gain probable cause for searches that would otherwise be illegal. Since I published my post, other sources have weighed in and provided some interesting perspectives. Here are some updates and links to further reading.

Marijuana Legalization may Create a Rare Entrapment Defense to Federal Drug Prosecutions

Image from taberandrew

Marijuana is Legal Now, Sort of

On November 6, 2012, Washington State and Colorado voted to allow recreational use of marijuana. A lot of people are saying that marijuana was "legalized" but this is not really the case. Marijuana is still prohibited under federal law. Federal authorities send people to prison for decades for conspiracy to distribute marijuana just the same as they do for trafficking in other drugs.

So what is the practical effect of such "legalization"? There is no indication that federal authorities intend to change course on Marijuana prohibition, so the most interesting consequence might be the people prosecuted federally in these jurisdictions could have a defense based on the doctrine of "entrapment by estoppel."

No Proof of Purchase Necessary: Drug Trafficking Definitions

From Images_of_Money

There are a lot of new drug trafficking cases in Maine these days. There are always a bunch of arrests in Portland, but there seem to be more in York County where Old Orchard Beach police have been cracking down on drug activity. In most of these cases no one was actually caught selling drugs. In fact, the most common scenario is that police search a person or vehicle, often after using drug dogs to get probable cause, they then find drugs that they believe were intended for trafficking.

If some of these folks had followed my advice on avoiding criminal charges in the first place, they might have never been arrested. Once they are charged, the state has several options in how to prove trafficking.

Furry Little Boot Straps: Drug Dogs in Court

I Smell Probable Cause!

Drug dogs are problem solvers. The problem they solve is that police need probable cause to search things. Probable cause is not a lot, but it does mean that that there must be a fair probability that contraban will be found in a place. Police often have a hunch that a search will uncover drugs, but that is not enough. What they need is that sweet probable cause.

Rare Prosecutorial Misconduct Hearing Begins for ADA Mary Kellett

ADA Mary Kellett Contests the
Bar Overseer's Misconduct Petition

The Maine Board of Overseers Begins a hearing into Possible Bar Violations by ADA Mary Kellett.

ADA Kellett successfully prosecuted Vladek Filler, accused of domestic violence assault and gross sexual assault against his ex wife. There was evidence that the wife went to police only to gain an advantage in a child custody case. At trial, Kellett objected to the defense attorney's line of questioning on the issue and the judge excluded the testimony.

Operating Under the Influence and Blood Alcohol Tests. New Rules Soon?

US Supreme Court will decide if involuntary, warrantless blood tests can be used at trial.  

I have written before about Operating Under the Influence Charges and some of the common issues that we see in those cases. I have also tried to give some suggestions about ways to avoid getting charged with Operating Under the Influence in the first place. Once people do get charged with OUI, they often think that it's an open and shut case and that they should just plead guilty. This is often not correct.

Prostitution Prosecution Proves Problematic, Possibly

"I take the fifth!"

Prostitution in the Press:

Even though actual prostitution charges are about as minor a criminal offense as possible, a lot of people have something to say about the Alexis Wright scandal. BDN blogger Alex Steed has a bit about slut shaming, Gawker has done a nice piece compiling the available Alexis Wright videos.

Image from Gawker.com

The Portland Press Herald had initially taken the moral high ground by refusing to print the names on the list when the identities could not be confirmed. They quickly devolved into some pretty standard pillorying once the middle initials and addresses were released.

Still, nothing I have read really says much about the legal issues at play here. As the story develops, I expect that this will make the case even more interesting.

Prostitution Cases Can be Difficult to Prove:

As far as I can see, the prosecution has some real practical problems that will make it hard to convict many of the Prostitution Patrons. See, they really wanted to make a splash with a lot of charges of some high profile figures and so the ADA charged a bunch of guys with Engaging a Prostitute. In any particular case the State needs to prove that the man paid for sex. But what proof with there be:

• The defendant can't be called as a witness against themselves at trial because the fifth amendement prohibits that. 
• The only other witness to the encounters was (probably) Alexis. She can't be forced to testify about having sex or about making money because she faces charges related to both of those things. 
• The records Ms. Wright kept would be pretty good evidence, but for business records to be admissible at trial, a "custodian of records" needs to authenicate them. Alexis is likely the only custodian and so those probably are not coming in without her testimony.

Of Course there are ways to get around some of these issues. The most obvious is to get defendants to make statements to the police admitting they paid for sex. Those statements, or recordings of them, can just be recited at trial and that's all the proof a jury needs.

Defendants have the Right to Remain Silent. So Don't Talk to the Police!:

This is why it is so important for people charged with crimes to keep their mouths shut. When the cops tell you: "it will be easier for everyone if you just tell us what happened" what they are really saying is: "it will be almost impossible to prove this case unless you confess."

Every case is unique and there is a lot more to it than that. But, in the end, the defendants who keep quiet, might get out of this without a conviction and some will be able to avoid ever getting charged. The ones who "did the right thing" and came clean might be rewarded with a nice write up in the paper and a criminal conviction to boot.

Federal Entrapment: How the FBI Prevents Crimes That Were Never Going to be Committed

This guy is probably going to prison for a long time.

Great News Everyone. The FBI continues manufacturing crimes to solve

CNN reports on the case of Quazi Mohammad Rezwanul Ahsan Nafis, a 21 year old Bangladeshi man arrested after trying to detonate a bomb at the New York Federal Reserve. Though there is not much detail about the plot, it appears to have unfolded as follows:

Burglary by Stalking?: How The Law Defines Crimes

David Burke, Photo from the Portland Press Herald

Things got a bit rough for Berwick Town Counselor David Burke. He was charged with Burglary and Domestic Violence Stalking and Probably Violating a Protection from Abuse Order. It gets one thinking about what those Crimes really are. Can you burglarize someone by stalking them?

Furnishing Alcohol and Providing a Place for Minors to Drink

He also makes sure to hire a good lawyer

Mixing Alcohol and Minors Can Be Trouble

Recent news reports show that prosecutors take furnishing alcohol to minors and providing a place for minors to consume alcohol seriously and judges are willing to impose serious sentences. These offenses seem to come up pretty often so it's worth taking a closer look at the Law.

Marijuana: Medicine for Maine; Still a Federal Crime

I have talked before about Maine's progressive medical marijuana law, about the recently proposed changes to the medical marijuana law and about the impact that drug use can have on federal rights especially the right to posses firearms.

Well, this article in the Bangor Daily News discusses new Maine Housing Authority regulations that will force Medical Marijuana users out of Section 8 housing. The problem is that, even though medical marijuana is legal in Maine, it is illegal under federal law. Since section 8 is a federal housing subsidy, you can't get it if you violate federal drug laws.

It seems extremely likely that we are going to see other issues crop up: medical marijuana users charged with federal firearms violations for hunting, or problems with federal student aid for Marijuana patients. These are strange times. States are progressing in an understanding of Marijuana as a substance that should be regulated, not prohibited. Federal authorities still have a 1920s mentality and the rigidity is creating some difficult tensions. I am sure we will see some challenging cases of defendants caught in the crossfire.

Criminal Statute of Limitation Bars Some, But Not All Old Prosecutions in Maine

Maine's Criminal Statute of Limitations is codified at 17-A MRSA section 8. It provides that, normally, prosecutions for felonies must be commenced within six years and prosecution for misdemeanors must be commenced within three years of the offense.

The statute is limitations clock is stopped under certain circumstances. The statute does not run during any time when the defendant is absent from the state of Maine and this can extend the statute of limitations by a maximum of five years. The time also does not run once a prosecution against the defendant for the same crime based on the same conduct is pending in Maine, even if the defendant is not brought before the court until after the time limit has run.

Most importantly, there are two situations in which the statue limitations is never a bar prosecution. That is in the case of murder or most sexual offenses against a victim who is less than 16 years old. These cases can be brought anytime. Sex cases in particular are often prosecuted many years or even decades after the alleged criminal conduct.

Cases brought years after the date of the alleged violation, are very problematic. Witnesses are lost, die, or forget what happened. Defendant's themselves often forget the exact circumstances surrounding the allegations. This makes a very stressful situation more stressful, but it also creates opportunities for defense. It is extremely important to speak with an experienced attorney immediately upon learning that charges are being investigated.

Choosing a Criminal Defense Attorney: 5 Things to Know when Hiring a Lawyer

Saul Goodman is not a real lawyer but his website is, unfortunately, not that unrealistic.

The highest search results are not always the best lawyers

The search result that comes up first might not be the best lawyer for the job. Any of the links shaded in yellow or on the right column of the google results page are paid advertisements. That is not a bad thing but it just means that the result is there, not because it's the the most relevant to your search, but because someone bought the positioning on the page. As you click the results, what do you find? Is it a lot of "I will FIGHT for YOU" or is it actual information that might help you understand your situation? Lawyers think about what goes into a website and the content there is probably an extension of their personality and worldview.

Attorney Referral Services

When you search for a Criminal Defense Lawyer on Google, many of the top search results will look like law firms, but they are not. Sites like "mycriminalattorney.com" are not real law firms but are referral services based thousands of miles away. You contact them, they will charge you a fee and then contact a local attorney to handle your case. If they charge you $3000, the local attorney might get $1000 of that to handle the case. You just paid $2000 for that service to send an email. A website that does not list a local location and phone number is not a local law firm.

Maine has no Public Defender's Office

Other States have a publicly funded office with attorneys who represent defendants that can't afford a lawyer. Maine does not have a such an office but instead has a court appointed attorney system. That means that certain attorneys have agreed to accept criminal cases which the court assigns to them. The state pays the attorney an hourly rate for handling the cases and the client has little or no obligation to reimburse the state for that fee.

A good Court appointed defense attorney can do excellent work for you

Whether you pay out of pocket or get an attorney appointed, a good lawyer is going to do the best job they can for every case they handle. Many of the best criminal defense lawyers do take some court appointed cases. Currently the hourly rate for appointed counsel is $50 and payment caps limit the maximum number of hours that an appointed attorney can bill on most cases.

You should be aware of some issues inherent in the court appointed system:

1. You don't get to choose your lawyer; the court is supposed to just appoint the next lawyer on the list. While many appointed attorneys do excellent work, some definitely do not.
2. Many court appointed attorneys do not specialize in criminal defense. While some do, others use court appointed work as a way to supplement a practice which focuses on some other area. A person facing criminal charges should be very careful to make sure that their attorney, whether appointed or retained, specializes in criminal defense. 
3. Third, there is a certain economic reality at work when a criminal defense attorney decides how to spend their limited time and the firm's limited resources. A conscientious lawyer would never neglect any case, and the bar overseers ensure that certain minimum standards are met. Still, when it comes down to it, there is the potential that a lawyer will choose to put extra time and effort into the privately retained case and not the court appointed one.

Choosing the Best Criminal Defense Lawyer for you

In the end, the best lawyer will have the experience and expertise you need, but just as important, they are someone that you like and that you can talk to and get along with. That defense lawyer is probably one that the DAs and judges respect and that a Jury can listen to, understand, and agree with. A lot of criminal defense attorneys fall back on aggressive language and pompous bluster. The reality is that the most effective lawyers don't really talk like that. It's a lot easier to yell at someone than it is to have a conversation, but effective advocacy is not about bullying people. The tougher job, and the more important job, does not have anything to do with arrogance, ego or bragging rights. Instead, it involves understanding and interpreting complicated legal issues in a way that benefits your defense, and then knowing how to persuasively communicate that perspective to a judge and jury.

Maine Prostitution Charges: Misdemeanor and Felony

Photo credit: Taberandrew /Creative Commons

Prostitution has been in Maine news a lot lately. There are at least three high profile cases right now: a Zumba instructor who may have offered services that her sign did not advertise, a man alleged to have invested in that prostitution business, and another prostitution ring operator who now faces federal charges for extorting money from a customer who circumvented the business and transacted with the girls directly. The complaint in that case is a pretty great read. It all gets one thinking about what Maine's prostitution laws actually prohibit and, what penalties can be imposed.

Maine's Prostitution Laws:

The Law is codified in Title 17-A, Chapter 35 and the statutes there prohibit "Engaging in Prostitution," Engaging a Prostitute" "Promotion of Prostitution" and "Aggravated Promotion of Prostitution." Only aggravated promotion of prostitution can be charged as a felony; the remaining charges are misdemeanors. While they aren't the most serious crimes, the stigma of being charged may be the most significant sanction for those accused.

Engaging a Prostitute:

People are charged with this if the prosecution believes that they were a prostitute's customer. A person engages a prostitute by "providing or agreeing to provide, either to the person whose prostitution is sought or to a 3rd person, pecuniary benefit in return for a sexual act or sexual contact as those terms are defined in section 251." This is probably the charge that the Zumba clients will face.

Engaging in Prostitution:

If the prosecution believes that a person was working as a prostitute, they can be charged with engaging in prostitution. The law provides that Prostitution "means engaging in, or agreeing to engage in, or offering to engage in a sexual act or sexual contact, as those terms are defined in section 251, in return for a pecuniary benefit to be received by the person engaging in prostitution or a 3rd person."

Sentences for most Prostitution Offenses:

A first offense for either crime is a Class E misdemeanor. That class of crime is normally punishable by up to $1000 in fines and 6 months in jail. Until 2013, the law explicitly provided that only a fine could be imposed and no jail time was allowed for a first offense of engaging in prostitution or engaging a prostitute conviction. In the wake of the Zumba case, the law was changed and now first offense engaging a prostitute can be punished by jail time. First offense engaging in prostitution is still punishable by a maximum $1000 fine and no jail.

If a defendant has a prior conviction for these offenses in Maine or another State within the past 10 years, the crimes becomes class D misdemeanors punishable by $2000 in fines and up to 364 days in jail. Until the 2013 law change, the "look back" period was only 2 years meaning only a prior conviction within the past 2 years would count to increase a new charge. Now, the look back has been increased to line up with other other Maine statutes (like Operating Under the Influence) which punish second offenses more harshly if the defendant has a prior conviction within the past 10 years.

More Serious Charges, Promotion of Prostitution:

The more serious offense is promotion of prostitution and aggravated promotion of prostitution. One promotes prostitution by:

1. Causing or aiding another to commit or engage in prostitution, other than as a patron;
2. Publicly soliciting patrons for prostitution...;
3. Providing persons for purposes of prostitution;
4. Leasing or otherwise permitting a place controlled by the defendant, alone or in association with others, to be regularly used for prostitution;
5. Owning, controlling, managing, supervising or otherwise operating, in association with others, a house of prostitution or a prostitution business;
6. Transporting a person into or within the State with the intent that such other person engage in prostitution; or
7. Accepting or receiving, or agreeing to accept or receive, a pecuniary benefit pursuant to an agreement or understanding with any person, other than with a patron, whereby the person participates or the person is to participate in the proceeds of prostitution.

Violation is a Class D misdemeanor punishable by $2000 in fines and up to 364 days in jail. If the defendant "promotes prostitution by compelling a person to enter into, engage in, or remain in prostitution; or ... Promotes prostitution of a person less than 18 years old" they commit the crime of Aggravated Promotion of Prostitution. This is a class B felony punishable by $20,000 in fines and 10 years in prison.

Maine Drug Possession Charges: Penalties and Defenses

Maine drug laws make it a crime to possess a whole host of chemicals. These include substances normally considered "drugs of abuse" like heroin, and many other medications that one needs a prescription to get. Under Maine law, a man holding crack cocaine and a man holding his wife's prescription might both be charged with the same drug possession crime. To help you better understand Maine drug possession laws, this article covers the following topics:

• Classification of Scheduled Drugs
• Drug Possession Misdemeanors and the Available Sentences
• Drug Possession Felonies and the Possible Sentences
• Marijuana Possession Charges
• Consequences of Conviction beyond the Criminal Penalties
• Possible Defenses to Drug Possession Charges

This post does not cover Maine drug trafficking laws but you can click that link for more. Drug trafficking can be charged as either a state or federal crime.

MAINE DRUG POSSESSION LAW

In Maine, possession of many drugs is a misdemeanor punishable by a minimum fine of $400 and maximum sentence of less than one year in jail. But the class of crime and the penalties imposed change based on the kind of drug, the amount possessed and prior drug convictions.

CLASSIFICATION OF SCHEDULED DRUGS

Under Maine Drug Law, substances are divided into schedules W, X, Y, and Z.

Schedule W includes:

• Stimulants such as cocaine and amphetamines 
• Opiates such as Methadone, Oxycodone and Heroin 
• some hallucinogens including LSD and MDA; and 
• Barbiturates.

Schedule X includes:

• some depressants 
• many hallucinogens including Mescaline, Psilocybin, DMT 
• Hashish; 
• some tranquilizers including Ketamine.

Schedule Y includes:

• Sedative and hypnotic drugs
• Phenobarbital
• Codeine 
• Diazepam.

Schedule Z is a catch-all category which includes all other prescription and non prescription drugs.

MISDEMEANOR DRUG POSSESSION PENALTIES

• Read this article for more details on Maine's criminal sentencing system

Possession of most Schedule W or X drugs is a Class D Misdemeanor punishable by a minimum sentence of a $400 fine a maximum of $2000 in fines and 364 days in jail. Interestingly the sentence for possessing schedule W Drugs can include probation even though probation is not usually available for misdemeanors. Possession of a Schedule Y or Z drug is a Class E misdemeanor with a minimum $400 fine and maximum $1000 fine and 6 months jail.

POSSESSION OF CERTAIN DRUGS IS ALWAYS A FELONY

Possession of opiate drugs such as Heroin, Oxycodone, Hydrocodone, Hydromorphone, and possession of Methamphetamine is always a class C felony charge. There is a $400 minimum fine and a maximum of $5000 in fines and 5 years in prison. Possession of Crack cocaine is a class C felony if the person had previously been convicted of drug possession or trafficking.

POSSESSING LARGER AMOUNTS OF SOME DRUGS IS A FELONY

As discussed above, possession of Schedule W drugs is normally a class D misdemeanor. However, Maine Law makes possession of larger amounts of some schedule W drugs a class B felony, punishable by $20,000 in fines and 10 years in prison. This applies to 14 grams or more of powder cocaine or methamphetamine and to 4 grams or more of crack cocaine.

MARIJUANA POSSESSION CHARGES

Marijuana possession in Maine is normally not a crime but is a civil violation if one possesses less than 2.5 ounces. The mandatory minimum fine is $350 dollars for less than 1.25 ounces and $700 for more than 1.25 ounces. If you have more than 2.5 ounces, possession becomes a crime. It's a class E misdemeanor for more than 2.5 ounces, more than 8 ounces is is class D, more than one pound is class C felony and over 20 pounds is a class B felony punishable by $20,000 in fines and 10 years in prison. Of course, Maine's medical Marijuana law permits qualified people to legally possess marijuana.

OTHER CONSEQUENCES OF DRUG CONVICTIONS

Like any criminal conviction, a conviction for drug possession shows up on a public background check. A conviction may also disqualify applicants for certain federal programs such as federal financial aid for students or federal housing and other subsidies. There is also the potential that those convicted could be classified as and "unlawful user or person addicted to a controlled substance" under 18 U.S.C. § 922(g). Federal law prohibits these and other people from possessing firearms or ammunition.

DEFENSES TO DRUG POSSESSION CHARGES

These cases are not as open and shut as people think. As with any crime, the State must prove all the elements beyond all reasonable doubt. The elements of drug possession are

1. That the person intentionally or knowingly
2. Possesses
3. What they know or believe to be a scheduled drug
4. Which is, in fact, a scheduled drug
5. For some felony charges, that the substance is a minimum amount of the drug.

For a good lawyer, there is a lot or room for defense in there. The issues are very fact specific but often questions arise as to whether the defendant had knowledge that the substance was there, whether they had a close enough connection to the material to be in legal possession of it, and whether the laboratory analysis confirms that it is the drug and that there is a certain amount of it.

Keep in mind that these charges usually start with the police detaining someone and then seizing the drugs. That action implicates important constitutional rights. The State must also prove that the police acted legally in detaining a defendant, searching for the drugs and seizing the substance. If that can't be proven, then the evidence should not be allowed into court.

The stakes are high and a conviction will stay on your record for the rest of your life. Pleading guilty guarantees a conviction and that can't be undone. It might make sense to at least talk to an attorney before deciding how to proceed.

Maine Medical Marijuana Law, Proposed Rules Changes

Maine has a pretty progressive medical marijuana law found at Title 22, Chapter 558-C. That law remains unchanged. But, under rule making authority granted to Maine Department of Health and Human Services, it has published new proposed rules. These rules would make some pretty substantial changes to the way the existing statute is applied.

Federal Charges for a man who used drugs and possessed guns

The Portland Press Herald recently ran this story:

Biddeford man arrested with guns now faces federal charges

Timothy Courtois had the misfortune to get pulled over with a bunch of guns. He then compounded his problems by making statements about his affinity for using marijuana and other drugs. He was orignially charged with some state crimes but things are now much worse since the Federal Unitited States Attorney's office has decided to prosecute.

Bad news for Mr. Courtois but great timing for me since I just published a post discussing the myriad ways that one can become Federally prohibited from possessing firearms. In that post I discussed 18 U.S.C. § 922(g), the federal law that details the categories of prohibited persons. Paragraph (3) prohibits firearm possession for "a person who is an unlawful user of or who is addicted to a controlled substance." This is one of the laws that the defendant is alleged to have violated in the Federal Criminal Complaint.

Defenses to Federal Firearms Charges?

There may be some interesting opportunities for defense here. As noted in the earlier post, the unlawful user category is not as clearly defined as some of the others. The applicable regulations define the term as follows in part:

"Unlawful user of or addicted to any controlled substance. A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician...."

Does Courtois fall into this category? At this point it is unclear. It might well come down to a trial where the jury with decide.

Domestic Violence, Protection from Abuse Orders and Other ways to Loose Your Guns

Some folks probably know that certain convictions can prevent you from possessing firearms. Few realize how many different legal proceedings can trigger the prohibition and completely torpedo your second amendment right to posses guns or ammunition.

Federal Law, 18 USC § 921 defines some of the important terms including "firearm":

The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

Further definition of terms can be found at the Electronic Code of Federal Regulations. This article takes definitions for 18 USC § 921 and from those regulations. 18 U.S.C. § 922(g)(1-9)lists the the categories of prohibited persons discussed below.

People Convicted of Felonies:

Many people know that felons can't posses firearms. Felons are, under 18 U.S.C. § 922(g)(1) people convicted of a crime punishable by imprisonment exceeding one year. It does not matter that the sentence imposed was less than one year so long as the crime could have lead to a sentence of over one year.

People Convicted of Misdemeanor Crimes of Domestic Violence:

Misdemeanors, by definition, have a maximum sentence of less than one year. Still, the federal prohibition kicks in under § 922(g)(9) if you are convicted of a Misdemeanor Crime of Domestic Violence (MCODV) as defined by § 921(32)(A):

1. Has as an element the use or attempted use of physical force, or the threatened use of a deadly weapon; and, 
2. At the time of the offense, the defendant was:

• A current or former spouse, parent, or guardian of the victim;
• A person with whom the victim shared a child in common;
• A person who was cohabiting with or had cohabited with the victim as a spouse, parent, or
• guardian; or,
• A person who was or had been similarly situated to a spouse, parent, or guardian of the victim

In Maine, that means that Domestic Violence Assault, Attempted DV Assault, and some kinds of DV Threatening or Terrorizing charges can trigger the prohibition.

What is a "Conviction"? Does a Deferred Disposition Count?

The federal law defers to the state on this issue, as explained by § 921(20):

"What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."

Generally, one is convicted once the court finds you guilty and that finding is made with a guilty verdict or guilty plea. In Maine, Misdemeanor Domestic Violence Crimes are often resolved with a "Deferred Disposition." This requieres the defendant to plead guilty but allows sentencing to be deferred for some time, usually one year. If the defendant avoids new charges and complies with conditions over that period, the defendant returns to court for a 'sentencing' date but no sentence is imposed and the charge is reduced or dismissed.

Luckily, the deferred disposition statute, 17-A MRSA §1348-A(4), provides that: 

"For purposes of a deferred disposition, a person is deemed to have been convicted when the court imposes the sentence." 

If one is successful on the deferred, usually no sentence will be imposed on the Domestic Violence charge and so no conviction and no gun ban will attach. Also, while the misdemeanor deferred disposition is pending, no sentence has yet been imposed and so no federal prohibition applies.

Defendants in civil Protection From Abuse proceedings:

In Maine, people often call these orders "PFAs" and they are filed by a Plaintiff seeking to restrain a Defendant from doing certain things. The parties must be "family or household members" as defined by Maine Law. 18 U.S.C. § 922(g)(8) prohibits firearm possession by a person subject to a court order that:

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury

This means that anyone who has a Maine 'PFA' against them probably commits a federal crime by possessing a firearm. Some lawyers think that the prohibition is triggered only if you have a contested hearing on the PFA and that the prohibition does not kick in if you agree to a protection order without a finding of "abuse." That is wrong. If you have "actual notice" of a hearing and an "opportunity to participate," that is enough. The fact that you choose to waive that opportunity and agree to an order, will not save your gun rights. This prohibition is not a lifetime ban, you are only baned while "subject to" the order. PFAs generally expire in 2 years unless the court grants an extension.

Defendants Under indictment for a Felony:

Here is something a lot of people, including some lawyers, don't know. Federal law limits the gun rights of people who are not convicted, but simply indicted for a felony. 18 U.S.C. § 922(n) provides:

It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

While this is not a ban on possessing guns, it does mean that you can't buy a gun or receive a gun while you are under indictment.

Other People who May be Federally Prohibited from Possessing Firearms:

There are a bunch more categories under 18 U.S.C. § 922(g) and these include:

• a person who is a fugitive from justice. § 921(15) defines this to mean "any person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding."
• a person who is an unlawful user of or who is addicted to a controlled substance. This is a confusing category. The regulations define this, in part, as: "A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician...."
• a person who has been adjudicated as a mental defective or who has been admitted to a mental institution. The regulations define this as people whose mental health condition rendered them incompitent or not criminally responsable as part of a criminal case. It also includes those who have "been determined by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: (1) Is a danger to himself or to others; or (2) Lacks the mental capacity to contract or manage his own affairs." This includes anyone who has been involuntarily committed by the court. 
• an alien who is unlawfully in the United States or who has been admitted to the United States under a nonimmigrant visa;
• a person who has been discharged from the Armed Forces under dishonorable
• conditions;
• a person who, having been a citizen of the United States, renounces his citizenship;

What Sentences can be Imposed?

18 U.S.C. § 924 covers the penalties that apply for violation. The maximum prison sentence is 10 years for violating 18 U.S.C. § 922(g). For violations involving § 922(n), the "under indictment" prohibitions, the penalty is a maximum prison term of 5 years.

Carrying a Concealed Weapon narrowly limited by Maine Supreme Court

Maine's Carrying a Concealed Wapon law, or at least it's application, has long been a thorn in the side of defense attorneys. The statute makes it illegal to: "Wear under the person’s clothes or conceal about the person’s person a firearm, slungshot [yeah, that is what it says in the law], knuckles, bowie knife, dirk, stiletto or other dangerous or deadly weapon usually employed in the attack on or defense of a person." The law specifically does not prohibit carrying "Knives used to hunt, fish or trap...". 

For years, this has been a great catch all offense giving a pretext for arrest in any case where a person is carrying a leatherman. District attorneys took the view that any item which could be used to injure a person and which could fit in a pocket or on a belt out of view as a "concealed weapon." But this is no longer a correct interpretation of the law. Really, it has never been a correct interpretation of he law but now the SJLC explicitly agrees. In the recent case of State v. Jones, the high court overturned the the conviction of a man found in possession of two ordinary, folding knives. They rejected the DA's stock, 'it would really hurt if you got cut with it' rational and reasoned that:


"Even though most knives, including the knives at issue here, are capable of causing serious bodily injury, the plain language of the statute establishes that the Legislature did not intend to prohibit the concealment of all knives. Rather, the statute expressly prohibits the concealment of only those knives that are specifically designed to be “usually employed in the attack on or defense of a person....whether a knife is a 'dangerous or deadly weapon usually employed in the attack on or defense of a person'...requires a fact-specific inquiry to determine whether the knife is designed for use against human beings or whether its primary function is to attack or defend a person."

Maine Supreme Court overturned the conviction:

"The [trial] court, in its written findings of fact and conclusions of law, noted 'the size, the heft, and the sharp and serrated edges of the [blades]' and that 'these knives would easily do significant damage to human tissue, human organs and major arteries.' Such a description, however, could be given of any knife and renders Jones’s knives indistinguishable from those that the Legislature has expressly exempted from the prohibition against concealment. Thus, there is no factual basis in the record to support a conclusion that Jones’s knives fall within the class of knives that the Legislature has prohibited individuals from concealing."

So good job Law Court! This is really great. They don't like to vacate convictions and that is what they did here. Maybe this is the start of something special.

Domestic Violence Assault in Maine has no Mandatory Minimum Penalty

The Maine Supreme Judicial Court recently decided State of Maine v. Rogers Harrell. The Case settles an issue that has bugged criminal defense attorneys, prosecutors, and defendants for some time. In Maine, conviction for assault carries with in a mandatory minimum fine of $300 and that language is right in the statute. There's no such language is in the Domestic Violence assault statute, but some judges still had felt that the fine should be mandatory and imposed it anyway.

The Harrell case presented an interesting issue where the Prosecution and Defense agreed that the fine was not mandatory and did not ask for it as part of an agreed upon 7 months jail sentence. At the plea and sentencing, the judge told them to go screw themselves and imposed the fine anyway because they believed it to be mandatory.

The defense lawyer filed an appeal and won!

The Maine Supreme Court vacated the $300 fine portion of the sentence. The court concludes: "Construing the domestic-violence-assault statute as the rule of lenity requires us to do, we interpret the statute not to carry a mandatory minimum fine." So, no fine for Harrell.

It's kind of hilarious that a judge would go out of their way to find a find a sentencing provision mandatory. Mandatory minimum sentences are designed to tie the judge's hands and force them to impose sentences that the legislature wants for political reasons rather than sentences carefully tailored to the unique circumstances of each case. Why would a judge insist, against the language of the statute, against the objection of the defense and against the recommendation of the prosecutor on giving this fine?

It is hard to say, I know almost nothing about the details of this case or the offense characteristics. Maybe this judge just wants to take a tough stand on domestic violence. Maybe there was a financial factor in this case that made the fine a particularly apt sanction. Maybe there is a political motivation for judges to appear to be carrying out the legislature's will. 

I am sure that any judge would say, "There is no sinister motive here, I am just trying to interpret the law they give me an apply it fairly." Still, that interpretation is guided by a perspective on how the criminal process should work. While the system pays a lot of lip service to ideas like presumption of innocence, beyond a reasonable doubt and the rule of lenity, these principals sometimes seem more like rhetorical tropes than foundational tenants. 

The issue here is relativly minor, does Harrell get a fine or not, but the sentencing judge's action pulls back the curtin on what I believe is a pervasive judicial philosophy: that the law should almost never be construed to give an advantage to the accused. Apparently, some believe this so strongly that they will read in language or meaning which is absent from the law or the arguments of either party. Does the court do this out of a sense of fairness, or to save itself from doing what it most dearly despises? We see this where judges go out of their way to find an iffy traffic stop was legitimate, or to admit testimony from a prosecution expert who would never be allowed if offered by the defense. There seems to be a concern that, on close calls, the prosecution should not be unfairly prejudiced. The result is that the defendant suffers the consequences of an illegal arrest, or dubious testimony, or an unnecessarily harsh sentence.

So thank you SJLC for getting it right. The court could have snuck around doing anything here, avoided changing the law and done it all in a mem dec. The fine was not illegal per se, a fine of up to $5000 is authorized for this class of crime and they might have just found that the judge can impose any legal fine, mandatory or not. In the end, this only saved the guy 300 bucks (and the chance to get arrested for failing to pay on time). Still, it is something, and that is more than nothing, and nothing is what defendant's get from appeals about 90% of the time.

When Sausages Attack?

An associated press story was repeated in the Portland Press Herald yesterday and the headline reads:

Mass. cyclist attacked by man swinging sausages

That is pretty ridiculous right there and one might just leave that alone since the intrinsic comedic value does not need further development. Still, I am compelled to take issue with this piece of reportage. First, the story kind of buries the lead since the assailant attacked "with sausage links and a wrench before making off with jewelry and the bike." I am gonna guess that the real weapon was the wrench; while less hilarious than sausages, it's probably a more effective tool of compulsion. 


Also, I must question the victim's characterization as a, "cyclist." The article says that the defendant was charged with "receiving stolen property under $250 in connection with the attack" and while it is not clear if that value represents the bike plus the jewelry, it suggests that the victim was not one identified largely by a passion for bicycle riding.

Operating After Suspension and Habitual Offender Revocation Charges in Maine

I love her hair in this picture

The Bad News: Penalties for those convicted of operating after suspension or revocation can be harsh!

Maine has some pretty bad law on driving after suspension or revocation. Fist off, it's easy to get your driver's license suspended in Maine. Not paying a fine, conviction for other driving offenses, accumulating points, or just changing your car insurance coverage can all result in suspension. Even after you fix the problem that got you suspended, your license will not be restored until you pay a "reinstatement fee" of $50 to the Bureau of Motor Vehicles. That's $50 for every suspension, so people with a late fine, lapsed insurance and a speeding ticket or two can be into hundreds of dollars pretty quick. That fee can leave a 15 day suspension in effect for years. To make matters worse, a suspension notice letter should be sent, but State mail does not get forwarded. If you moved, and have not update the address on your license, you won't get the notice and you might not know about any of this until you get pulled over.

The penalties seem pretty minor at first: A first OAS has a mandatory $250 fine, a second offense is $500 and a third is $750. The problem is that, if you plead guilty, the court will send the Bureau of Motor Vehicles notice of the conviction and BMV will suspend your license again for 60 days, maybe more if you have prior suspensions. Once you have three convictions for operating after suspension, or certain other offenses within a 5 year period, you can become classified as a Habitual Offender (HO) and your license will be revoked for three years.

If you drive after revocation, you are subject to mandatory minimum penalties which include incarceration for 30 days to two years depending on your priors. An HO driver who is intoxicated, eludes police, passes a road block or exceeds the speedlimit by 30 mph or more can be charged with "Aggravated operating after habitual offender revocation" and the minimum incarceration ranges from 6 months to 5 years!

The Good News: A lawyer can defend these cases.

There are ways to fight these cases. If a traffic stop led to charges, the prosecution must prove that the traffic stop was legal. Pulling someone over on a hunch that they are suspended, or because the car looked suspicious, probably is not enough. An illegal traffic stop could lead to the exclusion of all evidence discovered as a result of the stop.

The state also must prove that the defendant operated the vehicle, and under many circumstances, operation can be an issue. Often, police will find a parked car and form the opinion that a suspended suspect drive to that location. I have seen a few cases recently where an officer saw someone driving around town. The officer claims to recognize the car or driver and believes that the person is suspended. The officer then arrives at the person's home a day or two later to summons them for OAS. The question in any of these cases becomes whether the State can prove that the suspended person operated the car on the prior day.

Even if the stop was good and operation is clear, the question is was the driver properly suspended? The fact that the license is suspended or revoked is not enough to prove the case. The law requiers that one be properly notified of their habitual offender, or suspension status; it does not require proof that you actually received the notice as long as it is sent to the correct place. Notices often go to the wrong address. BMV may have multiple addresses on file and send the letter to just one, the court may send fine payment suspension notices to whatever address they happen to have in the file without ever checking the BMV address, police report addresses for the driver may differ from the court and BMV address and might be disregarded by both agencies. Other issues arise where prior convictions are alleged. The law only counts certain convictions as priors and those can only count against if the process that lead to conviction conformed with your rights to counsel and to a jury trial.

Figuring these issues out requiers meeting with a lawyer who knows the laws, knows the defenses, can make sense of your driving history report, and can fully investigate all information that might have an impact on the case. Don't think that an OAS of HO charge is always an open and shut case. A large percentage of cases can be defended in some way. Pleading guilty is  great way to guarantee a conviction and another round of suspension or revocation.