Opinion
DOCKET NO. CR-15-1855
08-04-2015
STATE OF MAINE v. GEORGE H. HEDERSON
STATE OF MAINE
CUMBERLAND, ss. UNIFIED CRIMINAL DOCKET
ORDER
George Hederson has been charged with violating a protection from abuse order (Count I) and domestic violence assault (Count II). Hederson moves to dismiss Count I on the grounds that a no-contact bail condition imposed by a New Hampshire court is not a protection order within the meaning of Maine's Domestic Protection from Abuse Act, 19-A M.R.S. §§ 4001-4014, ("the Act") and thus cannot serve as the basis for the criminal charge brought by the State.
The Act is civil rather than criminal in nature. Cooke v. Naylor, 573 A.2d 376, 377 (Me. 1990). Criminal penalties are only implicated where a valid protection order is in place and is violated. Id. at 378. To obtain a protection from abuse order, a plaintiff must prove an abuse allegation at a hearing by a preponderance of the evidence. 19-A M.R.S. § 4006. The court may grant a protection order upon finding the defendant committed the alleged abuse or engaged in the alleged conduct. 19-A M.R.S. § 4007. New Hampshire has a similar protection from abuse statute. See RSA 173-B:1. New Hampshire law also requires the court to hold a hearing where the complainant must prove abuse by a preponderance of the evidence. RSA 173-B:3.
On January 9, 2015, the State of New Hampshire charged the Defendant by criminal complaint with one count of Simple Assault. On January 29, a bail commissioner set bail at $5,000 and the Defendant was ordered to have no contact with the victim. The victim did not obtain a protection from abuse order pursuant to RSA 173-B:1.
In order to be charged with violating a protection from abuse order, the Defendant must have been subject to such an order. Although a protection from abuse order and a condition of release prohibiting contact often have the same purpose and commands, they are distinct and are penalized separately. State v. Falcone, 2000 ME 196, ¶ 7 n.2, 760 A.2d 1046. They are also different procedural requirements to impose them.
The central issue presented by the Defendant's motion to dismiss is whether the bail condition is "[a] temporary, emergency, interim or final protective order, an order of a tribal court of the Passamaquoddy Tribe or the Penobscot Nation or a similar order issued by a court of the United States or of another state, territory, commonwealth or tribe." 19-A M.R.S. § 4011(1)(A). The court concludes that because no protection order has been issued pursuant to RSA 173-B:1 or 19-A M.R.S. § 4007, the Defendant has not violated a protection order within the meaning of the Act and therefore may not be prosecuted pursuant to Section 4011. The Defendant may instead be in violation of a bail condition, for which the State of New Hampshire can initiate its own proceedings. See State v. Nott, 821 A.2d 976, 978 (N.H. 2003).
In light of the foregoing, Count I must be dismissed. The clerk shall make the following entry, by reference, on the docket: The Defendant's motion to dismiss Count I is GRANTED. Dated: August 4, 2015
/s/_________
Hon. Joyce Wheeler
Active Retired Justice, Superior Court