Opinion
CR-11-347
05-07-2012
STATE OF MAINE v. PAUL P. LEWIS
SECOND ORDER ON DEFENDANT'S MOTION IN LIMINE
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 of 29-A MRSA 2412-A(1-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.
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 of the 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.
Section 2482 is entitled "Notice of suspension or revocation of license." 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 of law, 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.
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 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 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.
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.