State of Maine v. Lewis
Opinion
STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CR-11-347 ~··fI l:zot2..
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STATE OF MAINE
v. SECOND ORDER ON DEFENDANT'S MOTION IN LIMINE
PAULP. LEWIS
On May 3, 2012 the parties appeared before the Court pursuant to an order issued
February 1, 2012. That order provided the State with an opportunity to provide testimony
or evidence that the notice provisions contained in the Secretary of State's Certificate and
Notice of Suspension were created for a purpose other than criminal prosecution. The
State did have a witness from the Department of Motor Vehicles present in the
courtroom, but for reasons not clear to the Court, declined to call her.
The State at this hearing reiterated and/or clarified its claim that the effective date
of suspension is not an element of the offense of operating after suspension. The Court
disagrees with this contention. Mr. Lewis is charged by complaint with violation of29-A
MRSA 2412-A(l-A)(D). The elements of that offense very clearly require the State to
prove beyond a reasonable doubt that the person was operating a motor vehicle; that he
was under suspension; and the person had received notice in accordance with Maine law.
In this case, the State contends that the only elements it must establish are that he was
operating a motor vehicle and that he had notice of his suspension pursuant to Section
2482. The State seems to believe that whether or not he was under suspension is a
collateral matter that can only be challenged at a Secretary of State administrative hearing
and not at a criminal trial. 1
Section 2482 is entitled "Notice of suspension or revocation oflicense." The
Section contains four subparagraphs. The State insists, however, that the only paragraph
at issue in this case is subparagraph 1, and the State contends that it has been satisfied.
That position flies in the face of the plain wording of the Section as a whole. Subsection 2
says what must be contained within the notice, and paragraph B states that the "effective
date of the suspension" must be included in the notice. The State seems to argue that so
long as the effective date is referred to in the notice, that is all that is required. However,
that argument fails to take into account the definition of"effective date" provided in
subparagraph 4. By operation oflaw, the effective date is the date provided in the notice,
but that date cannot "be less than 10 days after the mailing of the notification of
suspension by the Secretary of State."
In State v. Maynard, 2012 ME 33, 34 the Law Court stated as follows: "At the
bench trial on the OAS charge, to prove that Maynard's right to operate motor vehicles
was suspended on September 2, 2010, and that notice of the suspension had been sent to
Maynard .... " (emphasis added). The Court believes that this is a recognition by the Court
(in addition to the plain wording of the statute) that the State must prove beyond a
reasonable doubt that the Defendant's operation occurred after the effective date of the
suspension. In Maynard, the effective date was not a live issue because the operation
occurred 23 days after the mailing.
1 In support of this position the State relies upon three cases, none of which supports the State's claim that it need not prove the effective date of the suspension. None ofthe cases cited (State v. Holmes, 2004 ME 155; State v. Piacitelli v. Quinn, 449 A.2d 1126 (Me. 1982); or State v. Higgins, 300 A.2d 159 (Me. 1975) address the issue of when a suspension goes into effect. They address what procedure should take place when it is someone challenges whether a suspension is justified under Maine law.
During oral argument on May 3, 2012, the State did concede that it cannot convict
someone who operates a motor vehicle after he or she has received notice of the
suspension, but whose operation occurs before the effective date. Nevertheless, the State
insists that because the notice was mailed sometime between August 19, 2008 and
sometime on September 2, 2008, its only obligation at trial is to obtain admission of the
Certificate and notice. The State suggests that these documents would not only constitute
prima facie evidence towards satisfying its burden, but proof beyond a reasonable doubt
that the Defendant was suspended at the time he operated his motor vehicle on September
12, 2008.
The Court finds that the effective date of Mr. Lewis' suspension must be proven
beyond a reasonable doubt. The effective date of his suspension cannot be "less than 10
days after the mailing of the notification of suspension" by the Secretary of State. In this
case, there is a range of possible mailing dates based on a prediction, made August 19,
2008, that the notice would be mailed by September 2, 2008. The proof problems
engendered by this prediction are obvious to the Court. These problems are made more
complicated by the statute's failure to give clear indication as to whether "not. .less than
10 days after the mailing of the notification of suspension" means that a fact-finder is to
start counting the 10 days from the moment the notice is mailed (sometime on the last
day of the range, September 2, 2008); or to count the next calendar day after the last date
in the range (September 3, 2008) as the first day of the ten days.
Given the obvious proof problems, the Court finds that the State would be unable
to carry its burden to prove the effective date of suspension beyond a reasonable doubt
without producing more evidence than the Certificate and notice of suspension. Because
the Court would avoid reaching a constitutional issue before trial when it is apparent that
the State cannot prove its case without calling witnesses to testify when the notice was
mailed within the range predicted, or at least when it was likely mailed given the
practices in place at the time of mailing, the Defendant will be given the right of
2
confrontation as he conceives it. As the Law Court held in Maynard, what is in a
particular certificate (or notice, as here) --even if admitted --may or may not be sufficient
to establish an element of the offense of operating after suspension beyond a reasonable.
The entry will be:
The Court declines to rule on the confrontation issue prior to trial. In order to meet its
burden of proof to establish that the Defendant's suspension was in effect at the time of
operation, the State given the unique facts presented in this case will have to rely upon
more evidence than the Secretary of State certificate and notice of suspension (State's
Exh. 1) as proffered.
DATE SUPERIOR COURT JUSTICE
2 The Court obviously does not know what that evidence might be. However, because the State might be able to prove through witnesses from the Dept. of Motor Vehicles that the notice was mailed soon after the date of the notice (August 19, 2008) there may be no need for the Court to interpret the "10 day" language in the statute. And, as noted above, the confrontation issue might be eliminated if the witnesses are called.
STATE OF MAINE SUPERIOR COURT vs KENNEBEC, ss. PAUL P LEWIS Docket No AUGSC-CR-2011-00347 32 WELLESLEY ESTS PORTLAND ME 04101 DOCKET RECORD
DOB: 04/18/1987 Attorney: ROBERT ANDREWS State's Attorney: TRACY DEVOLL ROBERT ANDREWS ESQ PO BOX 17621 PORTLAND ME 04112 APPOINTED 02/11/2011
Filing Document: CRIMINAL COMPLAINT Major Case Type: MISDEMEANOR (CLASS D,E) Filing Date: 09/26/2008
Charge(s)
1 OPERATE WHILE LICENSE SUSPENDED OR 09/12/2008 WATERVILLE REVOKED, PRIOR Seq 9891 29-A 2412-A(1-A) (D) Class E WOODS I WAT
Docket Events:
05/12/2011 Charge(s): 1 TRANSFER- TRANSFER FOR JURY TRIAL EDI ON 05/12/2011 at 06:00p.m.
TRANSFERRED CASE: SENDING COURT CASEID WATDCCR200801908 FILING DOCUMENT - CRIMINAL COMPLAINT FILED ON 09/26/2008
Charge(s): 1 HEARING - ARRAIGNMENT SCHEDULED FOR 11/18/2008 at 01:00p.m.
NOTICE TO PARTIES/COUNSEL Charge (s) : 1 HEARING - ARRAIGNMENT CONTINUED ON 11/18/2008 CHARLES C LAVERDIERE , JUDGE NO RIDE FROM PORTLAND Charge(s): 1 HEARING - ARRAIGNMENT SCHEDULED FOR 12/16/2008 at 01:00 p.m.
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