STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CRIMINAL ACTION DOCKET NO. CR-07-904
STATE OF MAINE, / Plaintiff
v. ORDER & DECISION ..., ~ g I
MICHAEL BURT co
Defendant
BACKGROUND The defendant, Michael Burt (Burt), was indicted on May 11, 2007 for operating a
motor vehicle while under the influence of intoxicants (OUI), or while having a blood
alcohol level of 0.08% or more, in violation of 29-A M.R.S. § 2411 (2007).1 The crime was
charged as a Class C felony because the State has alleged the following two prior
offenses: a conviction for OUI that occurred on November 14, 2001 in York County
Superior Court; and an administrative suspension for refusing a chemical test that
became effective on September 19, 1997.2 Burt has moved to dismiss the felony
1 The defendant was also charged with violation of a license restriction pursuant to 29-A M.R.S. § 1251 (2007). However, he is not contesting that charge here.
2 The relevant portions of section 2411 are:
1-A. OFFENSE. A person commits our if that person:
A. Operates a motor vehicle:
1) While under the influence of intoxicants; or
2) While having a blood-alcohol level of 0.08% or more;
5. PENALTIES ... The following minimum penalties apply and may not be suspended:
C. For a person having 2 previous OUI offenses within a lO-year period, which is a Class C crime: classification and to strike the allegation of the administrative suspension because he
contends that the use of an administrative action to raise the classification of a crime
violates his right to due process and his Sixth Amendment right to a jury trial. For the
reasons discussed below, his motion is DENIED.
DISCUSSION
The charge of QUI may be elevated to a felony classification if a defendant has at
least two prior QUI offenses within the past ten years. 29-A M.R.S. § 2411(C), (D)
(2007). The term "QUI offense" is defined as "an QUI conviction or suspension for failure
to submit to a test." Id. at § 2401(11) (emphasis added). Thus, under the plain language of
the statute, the crime of QUI can be charged as a felony if a defendant has at least two
prior QUI convictions, two prior suspensions for refusal, or one of each. Here, the
indictment alleges both a prior conviction and a prior administrative suspension. While
Burt does not challenge the allegation of the prior conviction, he does assert that the
classification of the current QUI as a felony cannot be based on an administrative
suspensIOn.
The United States Supreme Court has held that the use of a prior uncounseled
misdemeanor conviction to enhance sentencing does not violate the Sixth or Fourteenth
1) A fine of not less than $1,100, except that if the person failed to submit to a test at the request of a law enforcement officer, a fine of not less than $ 1,400;
2) A period of incarceration of not less than 30 days, except that if the person failed to submit to a test at the request of a law enforcement officer, a period of incarceration of not less than 40 days;
3) A court-ordered suspension of a driver's license for a period of 4 years; and
4) In accordance with section 2416, a court-ordered suspension of the person's right to register a motor vehicle.
2 Amendments when the prior conviction did not result in a sentence of imprisonment.
Nichols v. United States, 511 U.S. 738, 748-49 (1994). Put another way, there is only a
constitutional prohibition on the use of uncounseled prior convictions that are punished
by imprisonment. Id. This is because criminal defendants have a constitutional right to
counsel only when convicted of a crime that results in imprisonment. Id. at 746-49
(discussing Scott v. Illinois, 440 U.s. 367 (1979)). Thus, the Constitution is only violated
when a prior unconstitutional conviction is used to enhance a sentence.
Burt mistakenly asserts that the issue in Nichols was "whether a valid conviction,
with proof beyond a reasonable doubt and the right to a jury trial, is sufficiently reliable
to be used to increase a potential term of imprisonment when the defendant did not
have a lawyer to help him test the evidence." Def.'s Mot. Dismiss en 2 Oan. 2, 2008).
Instead, the issue was simply whether an uncounseled prior conviction that was
constitutionally obtained, because no right to counsel had ever attached in the prior
proceeding, could be used to enhance a sentence that would result in imprisonment.
Nichols, 511 U.s. at 746-49. Therefore, the Nichols Court was interpreting only the Sixth
Amendment right to counsel, and not the right to a jury trial or the reliability of a prior
conviction. Although Burt objects to the fact that he was not provided with an attorney
during the prior suspension hearing, there is no Sixth Amendment right to counsel that
attaches in administrative proceedings, and the defendant has not argued that he was
denied any other constitutional rights that he may have been entitled to at the
administrative hearing.
Moreover, the Law Court has similarly held that the use of an uncounseled prior
conviction to enhance a sentence does not violate a defendant's due process rights
under article I, section 6-A of the Maine Constitution. State v. Cook, 1998 ME 40, enen 11
12,706 A.2d 603,606-07. However, even though the use of an uncounseled prior
3 conviction for sentencing enhancement does not automatically create constitutional
concerns, the question presented in this case is not about sentencing, but about the
proper classification of a crime. Thus, the above cases do not explain whether the use of
either a prior conviction or a prior administrative suspension to enhance the
classification of a crime is constitutional under the Sixth Amendment. 3 The Law Court
has held that the use of a prior conviction to change the classification of an offense does
not create due process concerns. State v. Maloney, 2001 ME 140, 11 8-11, 785 A.2d 699,
701-02. The Court discussed both Nichols and Cook, and came to the conclusion that "[a]
change in classification of the subsequent crime from a misdemeanor to a felony does
not, in any way, alter the penalty imposed for the previous conviction." Id. CJI 11, 785
A.2d at 702.
The Court did, however, point out that "[a] prior conviction is itself an essential
element of the felony offense." Id. (citing State v. Corliss, 1998 ME 36, CJ[ 6, 706 A.2d 593,
594-95). Additionally, the Supreme Court has held that to satisfy both the Sixth and
Fourteenth Amendments, "[o}ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey,
530 U.S. 466, 490 (2000). To allow othenvise would violate a defendant's right to due
process of law and his right to a trial by jury. Id. at 476-77. Thus, in this case, the
administrative suspension is a "fact," and thus an essential element of the crime
charged that must be pled and proved beyond a reasonable doubt. The suspension has
3 The Law Court has previously held that the use of prior refusal suspensions to enhance the classification of the crime of OUI does not violate a defendant's right to due process of law. State v.
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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CRIMINAL ACTION DOCKET NO. CR-07-904
STATE OF MAINE, / Plaintiff
v. ORDER & DECISION ..., ~ g I
MICHAEL BURT co
Defendant
BACKGROUND The defendant, Michael Burt (Burt), was indicted on May 11, 2007 for operating a
motor vehicle while under the influence of intoxicants (OUI), or while having a blood
alcohol level of 0.08% or more, in violation of 29-A M.R.S. § 2411 (2007).1 The crime was
charged as a Class C felony because the State has alleged the following two prior
offenses: a conviction for OUI that occurred on November 14, 2001 in York County
Superior Court; and an administrative suspension for refusing a chemical test that
became effective on September 19, 1997.2 Burt has moved to dismiss the felony
1 The defendant was also charged with violation of a license restriction pursuant to 29-A M.R.S. § 1251 (2007). However, he is not contesting that charge here.
2 The relevant portions of section 2411 are:
1-A. OFFENSE. A person commits our if that person:
A. Operates a motor vehicle:
1) While under the influence of intoxicants; or
2) While having a blood-alcohol level of 0.08% or more;
5. PENALTIES ... The following minimum penalties apply and may not be suspended:
C. For a person having 2 previous OUI offenses within a lO-year period, which is a Class C crime: classification and to strike the allegation of the administrative suspension because he
contends that the use of an administrative action to raise the classification of a crime
violates his right to due process and his Sixth Amendment right to a jury trial. For the
reasons discussed below, his motion is DENIED.
DISCUSSION
The charge of QUI may be elevated to a felony classification if a defendant has at
least two prior QUI offenses within the past ten years. 29-A M.R.S. § 2411(C), (D)
(2007). The term "QUI offense" is defined as "an QUI conviction or suspension for failure
to submit to a test." Id. at § 2401(11) (emphasis added). Thus, under the plain language of
the statute, the crime of QUI can be charged as a felony if a defendant has at least two
prior QUI convictions, two prior suspensions for refusal, or one of each. Here, the
indictment alleges both a prior conviction and a prior administrative suspension. While
Burt does not challenge the allegation of the prior conviction, he does assert that the
classification of the current QUI as a felony cannot be based on an administrative
suspensIOn.
The United States Supreme Court has held that the use of a prior uncounseled
misdemeanor conviction to enhance sentencing does not violate the Sixth or Fourteenth
1) A fine of not less than $1,100, except that if the person failed to submit to a test at the request of a law enforcement officer, a fine of not less than $ 1,400;
2) A period of incarceration of not less than 30 days, except that if the person failed to submit to a test at the request of a law enforcement officer, a period of incarceration of not less than 40 days;
3) A court-ordered suspension of a driver's license for a period of 4 years; and
4) In accordance with section 2416, a court-ordered suspension of the person's right to register a motor vehicle.
2 Amendments when the prior conviction did not result in a sentence of imprisonment.
Nichols v. United States, 511 U.S. 738, 748-49 (1994). Put another way, there is only a
constitutional prohibition on the use of uncounseled prior convictions that are punished
by imprisonment. Id. This is because criminal defendants have a constitutional right to
counsel only when convicted of a crime that results in imprisonment. Id. at 746-49
(discussing Scott v. Illinois, 440 U.s. 367 (1979)). Thus, the Constitution is only violated
when a prior unconstitutional conviction is used to enhance a sentence.
Burt mistakenly asserts that the issue in Nichols was "whether a valid conviction,
with proof beyond a reasonable doubt and the right to a jury trial, is sufficiently reliable
to be used to increase a potential term of imprisonment when the defendant did not
have a lawyer to help him test the evidence." Def.'s Mot. Dismiss en 2 Oan. 2, 2008).
Instead, the issue was simply whether an uncounseled prior conviction that was
constitutionally obtained, because no right to counsel had ever attached in the prior
proceeding, could be used to enhance a sentence that would result in imprisonment.
Nichols, 511 U.s. at 746-49. Therefore, the Nichols Court was interpreting only the Sixth
Amendment right to counsel, and not the right to a jury trial or the reliability of a prior
conviction. Although Burt objects to the fact that he was not provided with an attorney
during the prior suspension hearing, there is no Sixth Amendment right to counsel that
attaches in administrative proceedings, and the defendant has not argued that he was
denied any other constitutional rights that he may have been entitled to at the
administrative hearing.
Moreover, the Law Court has similarly held that the use of an uncounseled prior
conviction to enhance a sentence does not violate a defendant's due process rights
under article I, section 6-A of the Maine Constitution. State v. Cook, 1998 ME 40, enen 11
12,706 A.2d 603,606-07. However, even though the use of an uncounseled prior
3 conviction for sentencing enhancement does not automatically create constitutional
concerns, the question presented in this case is not about sentencing, but about the
proper classification of a crime. Thus, the above cases do not explain whether the use of
either a prior conviction or a prior administrative suspension to enhance the
classification of a crime is constitutional under the Sixth Amendment. 3 The Law Court
has held that the use of a prior conviction to change the classification of an offense does
not create due process concerns. State v. Maloney, 2001 ME 140, 11 8-11, 785 A.2d 699,
701-02. The Court discussed both Nichols and Cook, and came to the conclusion that "[a]
change in classification of the subsequent crime from a misdemeanor to a felony does
not, in any way, alter the penalty imposed for the previous conviction." Id. CJI 11, 785
A.2d at 702.
The Court did, however, point out that "[a] prior conviction is itself an essential
element of the felony offense." Id. (citing State v. Corliss, 1998 ME 36, CJ[ 6, 706 A.2d 593,
594-95). Additionally, the Supreme Court has held that to satisfy both the Sixth and
Fourteenth Amendments, "[o}ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey,
530 U.S. 466, 490 (2000). To allow othenvise would violate a defendant's right to due
process of law and his right to a trial by jury. Id. at 476-77. Thus, in this case, the
administrative suspension is a "fact," and thus an essential element of the crime
charged that must be pled and proved beyond a reasonable doubt. The suspension has
3 The Law Court has previously held that the use of prior refusal suspensions to enhance the classification of the crime of OUI does not violate a defendant's right to due process of law. State v. Cote, 1999 ME 123, lj[ 2t 736 A.2d 262, 267. However, the defendant in that case did not raise the issue of any Sixth Amendment violations. Instead, he incorrectly argued that he was entitled to a warning on the implied consent form concerning the potential future consequences of refusing a chemical test. Id. <[<[ 7-9,736 A.2d at 264-65. Therefore, Cote does not answer the issue presented by the defendant in this case.
4 been properly alleged here, and it is too soon to determine whether the prosecution has
met its burden of proof.
Finally, although the defendant has asserted that only a valid conviction may be
used to enhance the classification of a crime from a misdemeanor to a felony, Maine's
criminal statutes are replete with examples of crimes that may be classified as either
misdemeanors or as felonies depending on the facts supporting the charge. For
example, the crime of assault may be charged as a misdemeanor, but can also be
charged as a felony depending on facts such as the age of the victim, the extent of
bodily injury to the victim, or whether a dangerous weapon was used in the crime. See
17-A M.R.S. §§ 207,208, 208-B (2007). Similarly, the classification for the crime of theft
by unauthorized taking or transfer depends on the value of the property taken. Id. at§
353. In this instance, the prior administrative suspension is simply one of the alleged
facts to support the charge of felony OUI, and its use by the prosecution to enhance the
classification of the crime charged does not violate his constitutional rights.
CONCLUSION
The defendant's motion to dismiss the felony charge and to strike the allegation
of the prior administrative suspension is DENIED.
DATED: February 6,2008 J~ Wheeler, Justice
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