Here’s a story about my recent adventure at the Maine Legislature. It was my second attempt to secure a legislative fix for problems that I have encountered practicing criminal defense law in York County. My first ill-fated attempt was several years ago. The sitting D.A. at that time- who is not the current D.A.- was running for a higher political office. He called every attorney he could think of, including most if not all members of the local criminal defense bar, to personally solicit campaign contributions. I have been told the calls came day and night. I received a call in the middle of the day one day and picked up the phone thinking it must be about a pending case, only to discover that the D.A. had called to ask for the maximum campaign contribution, or if that was too much, at least something to help his efforts.
Although the D.A. certainly did not hint that any favors would flow to those who coughed up the maximum contribution or that any favors would be withheld for failure to make a contribution (and I don’t believe he had any such thing in mind), a number of attorneys I spoke to felt uncomfortably pressured by the requests. This made the practice fairly creepy and gave it a certain appearance of impropriety. But then again, who wanted to go on record and make a stink about it, on the off-chance there might be a price to be paid for that? As I looked into the legality and ethics of the practice, I found that Maine’s political ethics laws raised no legal bar to it. Maine law bars police officers from soliciting money from the public, but it did not bar a sitting D.A. from directly soliciting money from defense attorneys who handle cases against his or her office. I decided to try to change that, by seeking an amendment to the governmental ethics laws. I found a legislator to submit a bill for me, but it was killed in committee. From what I could determine, the whole affair was viewed as an isolated incident that didn’t merit remedial legislation. By the time the bill was submitted, the matter had blown over and the D.A. had by then lost his nomination bid for higher office. And the particular language of the particular proposed bill might not have represented the most artful way to deal with whatever problem might have existed anyway… better to just stay with the status quo.
At this point, I probably should only be sorry to have bothered with the effort in the first place, because I think all I accomplished was to alienate the affections of a particular politician. And besides, politicians need lots of money and should be allowed to hit up anyone who’s got some. All this conflict of interests stuff is overblown anyway. I’ve now evolved and even think Rod Blagojevich got a raw deal. After all, a man’s gotta do what a man’s gotta do. Still, though, I didn’t learn enough not to take on my more recent failed legislative adventure.
It all began about a year ago, when I ran into a problem with the way the York County Jail construes the statute controlling day-for-day credit for time a person is detained in jail, unable to make bail, before sentence is imposed. The statute says credit is to be given toward the person’s total sentence for the time the person was “detained for the conduct for which the sentence is imposed.” The York County Jail applies that standard in a way I have never encountered anywhere else in 28+ years of practicing criminal law. For example, I was involved in a case in which the defendant’s girlfriend reported to police that the defendant had assaulted her the previous day and had prevented her from calling the police. The girlfriend told police that the defendant was, at the time of her report, at her residence, and that he had a handgun. The defendant had previously been convicted of a felony. Police went to the residence and found the defendant in possession of a handgun. They took him to the York County Jail and booked him in on the charge of possession of a firearm by a felon. He was not able to make bail, so he remained in jail from then on. Weeks after his arrest, the D.A lodged a charging instrument containing charges of possession of firearm by a felon, assault, and obstructing the report of a crime. Four months after his arrest, he reached a plea agreement, under which he pled guilty to all three of these charges and received a split sentence involving 9 months to be served concurrently on each count.
Everywhere else in the State, when a person receives a sentence in those circumstances, credit is given toward the total sentence for the 4 months the person was in jail awaiting sentence. This leaves a balance of 5 months to be served on all counts, and the person is released from incarceration on all three sentences on the same day. That is what the D.A., the defense attorney, and the judge expected to occur in this case as well. Instead, the jail informed the defendant that he had 9 months left to serve on the assault and obstructing the report of a crime charges. The jail reasoned that the defendant was entitled to day-for-day credit for the time he was detained on the “conduct for which the sentence [was] imposed.” As to the 9-month sentence for possession of a firearm by a felon, the defendant had been detained for 4 months, so he had 5 months left to serve. As to the assault and obstructing the report of a crime sentences, the defendant had not been detained for that conduct, so after he finished the 9-month sentence for the possession of a firearm charge, he would remain in jail for an additional 4 months until his concurrent 9-month sentences were finished. Because the defense attorney on the case was an attorney I worked with at the time, I was asked to work on the problem. I called Diane Sleek, the Assistant Attorney General who advises the jails on the application of this statute. I had never seen the language of the statute construed in this extremely narrow way, ever, in over a quarter century of criminal law practice. But Diane Sleek told me that she understood the York County Jail’s interpretation to be correct. She said she would consult with Charlie Leadbetter, a now-retired Assistant Attorney General who has long been regarded as Maine’s guru on such issues. A day or so later, A.A.G. Sleek told me she had consulted Charlie Leadbetter and he agreed with her interpretation.
To remedy the problem as quickly as possible and to carry out the intentions of defense counsel and the D.A., the defense attorney filed a motion to correct the sentence, based on an asserted “mistake of fact” at the time of sentence. The motion asserted that it had mistakenly been understood that the Defendant had pretrial detention time on the misdemeanors charges equal to his detention time on the felony count. The D.A. did not object to the motion, and the judge changed the misdemeanor sentences to 5 months, concurrent with the 9-month felony sentence, so the defendant would not be held in jail on the misdemeanors after his release date for the felony.
Around this time, another York County attorney reported that he had a client who was sentenced to serve several days, with credit for “time served,” on a reduced charge. All parties anticipated that the defendant would be released immediately, but the jail continued to hold the defendant in jail over the weekend, under the theory that the defendant had been detained only for the conduct involved in the original charge, not the conduct alleged in the reduced charge. This same attorney reported another case in which the jail refused to credit the 60 days the defendant had been held on Class A robbery and Class E theft charges toward a sentence of 60 days, with credit for “time served,” on a reduction to conspiracy to commit theft, Class E; and another case in which the jail refused to credit the 9 days the defendant had been detained on a domestic violence assault arrest toward a sentence of 9 days, credit for “time served,” on a reduced charge of disorderly conduct. In both of these cases, the jail again maintained that the defendant had not been detained on the conduct for which the sentence was imposed. In each case, the attorney was forced to return to court and seek a correction of the sentence for an asserted mistake of fact, and in each case the remedy was for the court to impose a sentence of unconditional discharge so the defendant could be immediately released, but only after the defendant continued to be held until the sentence could be changed.
Yet another attorney reported that he had a case in which his client was arrested for domestic violence assault, assault and violation of condition of release. When the defendant was taken to court, her complaint charged only domestic violence assault. After she was held for 2 weeks, she made bail. Later, an indictment was brought against her for all three of the charges for which she had initially been arrested. When the time for trial arrived, the attorney thought the client had a fairly solid defense to the domestic violence assault charge (the only conduct for which the jail would consider her to have been detained for 2 weeks) and somewhat of a defense on the assault charge, but no defense on the violation of condition of release charge. If the defendant went to trial and was convicted of the assault or violation of condition of release charges, she would have to serve whatever jail sentence the court might give her, without any detention credit. Or, she could take the offer the D.A. made, which would have required a plea to the defensible domestic violence assault but would not have resulted in her serving additional jail time. I don’t know how the attorney resolved this problem.
Now let me attempt to frame the problem in the context of Zumba and prostitution, because that seems to get people’s attention. Imagine a few twists in the facts of the prosecution against Mark Strong, for invasion of privacy and prostitution-related offenses. Imagine that Mark Strong was initially arrested and booked into the York County Jail for invasion of privacy, only. Then imagine that Mark Strong sat in jail for 60 days before he made bail. After this, suppose an indictment issued against him, charging invasion of privacy and prostitution. Suppose further, that he was convicted of all charges against him and that the judge sentenced him to serve 60 days in jail, concurrent on all counts. On appeal, suppose the Law Court struck down all the invasion of privacy convictions (the pretrial dismissal of which really was upheld by the Law Court in Mark Strong’s actual case). If, on remand, the trial court left the 60-day sentence in place on the remaining prostitution convictions, Strong would have to serve all of it. He would receive no credit for the time he was detained on the invasion of privacy counts because the sentence was imposed on prostitution counts and that is not the conduct for which he was detained. Stay with me for another twist. Suppose instead that the Law Court upheld the convictions for invasion of privacy as well as for prostitution. The York County Jail would say he must still serve 60 days on the prostitution counts anyway. He would get credit for his 60 days of detention time, but only on the invasion of privacy counts, the conduct for which he was detained, not the prostitution counts, involving conduct for which he was not detained. In fact, if Mark Strong was initially arrested for invasion of privacy committed on a certain date or dates, and was later indicted for invasion of privacy committed on additional dates, the York County Jail’s interpretation would only allow him to receive detention credit on the invasion of privacy counts that reflect the date or dates implicated at the time of his arrest. This, to me, is ridiculous. So I sought legislation to make it clear that the term, “conduct for which the sentence is imposed” means all of the conduct that underlies all of the charges brought in the single case against the defendant. The idea was to make sure that, regardless what county a person is sentenced in, the person will receive credit toward the total sentence for time detained pretrial, regardless what particular aspects of that conduct were “charged” by police or the D.A. at the time of arrest or initial appearance in court.
Having learned something from my last failed adventure in the legislative realm, this time I sought and received official backing for my proposal from the Maine Association of Criminal Defense Lawyers (MACDL). MACDL’s chief legislative liaison found a legislator to draft and introduce a bill in my behalf. When the time came, MACDL submitted written testimony in favor of the bill. On March 8, 2013, I trekked to Augusta and testified at the public hearing. The Maine Civil Liberties Union also spoke in favor of the bill that day. Nobody spoke in opposition. The committee members only had one question; whether the bill would have any effect on post-sentence good time calculations- it would not. One week later, on March 15, 2013, I again trekked to Augusta to attend the work session for the bill. This time, mid-coast District Attorney Geoffrey Rushlau was there. He told me he was against the bill and that the Criminal Law Advisory Commission (CLAC) also opposed it. Really…? CLAC is a commission established by the Legislature to review criminal laws and rules, to suggest changes and to advise the Legislature on changes proposed by others. Although I was curious to know why they opposed the bill, I knew at that point I could have saved myself the trip to Augusta.
When the work session for the bill began, the committee’s legal analyst began by summarizing the proceedings to that point. He said Ed Folsom, an attorney whose “title,” if he had one, was unclear, had brought the bill forward, and that the MCLU had spoken in favor (no mention of endorsement by MACDL, unless I somehow missed it). On the other hand, the bill was opposed by CLAC, because the existing statute reflects appropriate State policy on the awarding of pretrial detention credits and the proposed changes might carry unspecified unintended consequences. Also, CLAC had opined in its written commentary to the committee that whatever problem existed was a “practice skills” problem among the attorneys and, perhaps, the judges involved.
During work sessions, the committee does not open the proceedings to public comment, but the committee members do sometimes solicit comments from those in attendance. The committee entertained comments from both myself and D.A. Rushlau. D.A. Rushlau agreed with CLAC. If the bill were passed, there is a risk that a parade of horribles would follow, due to unspecified unintended consequences, the nature of which he could not begin to anticipate. In his opinion, the particular jail at issue was guilty of outrageous behavior for which they should be sued. Rushlau related that he had spoken to the committee’s legal analyst and had learned of an instance in which the jail failed to give a defendant credit for time detained on aggravated assault toward his sentence on a reduced charge of assault. This was the first I had heard of that particular case, but apparently the committee’s analyst and D.A. Rushlau were privy to information I did not have. While incidents such as that were outrageous, Ruslau said it was entirely appropriate for a jail not to award credit toward a sentence, for instance, in a situation where a person is sentenced on a charge that was added to a complaint after the person was held in jail for 10 days on another charge from the same incident. This is as it should be and the statute shouldn’t be amended to change it.
In the end there was only one committee vote for “ought to pass.” All other committee members present voted “ought not to pass,” and there the bill died. One committee member who voted “ought not to pass” offered that if a change was made to give people more detention credit, judges would just increase the sentence to take that into account anyway. To that I say: Well alright then; that settles it for me too.
I get it now. At first, I thought there was a problem here that could appropriately be remedied by a simple amendment to the statute that would remove ambiguity and clearly, directly express the Legislature’s intent. Once again, I should have known better, so I have now adopted the official line: If there’s a problem, it’s a “practice skills” problem. Move along, because there’s nothing to see here. The next time I think I see a problem that I think might call for a legislative remedy, I’m not saying anything. As the legal analyst for the Criminal Justice and Public Safety Committee pointed out, I don’t even have a title for crying out loud! I understand. Politics is politics.
Tue, March 19 2013 » Maine Law » 4 Comments
Since I originally posted this piece, the rules regarding certified batterer’s intervention programs have been revised to allow women as well as men to participate in the programs. It was a long time coming.
Equal protection violation update: As I have previously posted, Maine has a statutory/regulatory scheme that allows men to be punished more harshly than women for conviction of a domestic violence offense. The statutes allow a person convicted of a misdemeanor domestic violence offense to be sentenced to 2 years of probation if the person is also ordered to complete a certified batterer’s intervention program as a condition of probation. Otherwise, the maximum period of probation is 1 year. By regulation, any batterer’s intervention program that accepts females expressly cannot be certified. The upshot of this arrangement is that men are exposed to 2 years of probation, with certified batterer’s intervention. Women, on the other hand, can only be sentenced to 1 year of probation and cannot be made to attend a certified batterer’s intervention program because such programs do not exist for women. Maine attorney Scott Hess had a male client who was sentenced to 2 years of probation and was ordered to complete a certified batterer’s intervention program. Attorney Hess objected that the sentence violated the equal protection clause of the U.S. Constitution. In December, Maine’s Supreme Judicial Court, the Law Court, held, in State v. Mosher, 2012, ME 133, that the statutory and regulatory scheme certainly appears to allow for the existence only of certified batterer’s intervention programs for men, but the Law Court remanded the case to the trial court for a determination whether this is in fact the case, and if so whether the scheme is appropriately related to legitimate governmental interests so as to pass equal protection muster.
On remand, the trial court held a hearing on the equal protection issues. In a decision issued March 15, 2012, the trial court found that Maine’s certified batterer’s intervention program scheme does in fact violate the equal protection clause. The court found that the only batterer’s intervention programs certified in Maine are in fact for men only, and that Maine regulations specifically prohibit the participation of women in a certified batterer’s intervention program. This results in men being exposed to harsher punishment than women for the commission of the same offense. Even if men are only sentenced to serve one year of probation, imposition of a probation condition that they must complete a certified batterer’s intervention program itself constitutes harsher punishment, given the costs, the program’s requirements, and the exposure to incarceration for non-compliance, that the condition carries. Plus, there are legitimate questions as to whether certified batterer’s intervention programs are even effective at reducing domestic violence. Well Hooray!!! As I have said in previous posts, Maine’s certified batterer’s intervention arrangement is a product of the criminal justice system having been hijacked by the “battered women’s movement.” If you don’t believe me, go to: http://www.maine.gov/sos/cec/rules/03/chaps03.htm and read the regulations themselves.
Thanks to the very capable work of Attorney Scott Hess, we have begun to wander out of this wilderness.
Sun, March 17 2013 » Maine Law » No Comments
It is important to provide change of address information to Maine’s Secretary of State, Bureau of Motor Vehicles. Licensed Maine drivers who change address are obligated to inform the Secretary of State, within 30 days. A licensed driver may notify the Secretary of State by telephone, at 207-624-9000, extension 52114; may convey the information in writing; or may stop by a BMV branch office and provide the information. It is important to inform the Secretary of State of any address change immediately. The Secretary of State’s Office notifies drivers of actions related to their licenses by sending them notices, mailed to the address they most recently provided to the Secretary of State under their obligation to keep that Office informed of their whereabouts. The U.S. Postal Service does not forward these notices, so leaving a forwarding address with the Post Office will not result in delivery to the new address of a notice mailed by the Secretary of State. Instead, any notice that can’t be delivered to the intended recipient will be returned to the Secretary of State. Unfortunately for intended recipients, the Secretary of State’s obligation to provide notice of administrative actions is fulfilled as soon as that Office mails the notice to the person’s last address of record—it is not necessary for the intended recipient to actually receive it.
The Secretary of State notifies drivers of such matters as the requirement to renew a license that is about to expire; the fact that a suspension is about to take effect based on an accumulation of demerit points; the fact that the person is required to file proof of insurance to avoid a license suspension; the fact that a reinstatement fee must be paid before a person’s license may be reinstated from a court-ordered suspension; and the fact that a person has been declared an habitual offender and a license revocation is about to take effect. It is critical that drivers keep the Secretary of State informed of address changes so they can be sure to receive the information they need to avoid getting into trouble with the criminal law. When a person fails to keep the Secretary of State informed of her address change, the State views it as her problem, not theirs. This often leads to the person needing a lawyer to help clean up a complicated and costly mess. We lawyers appreciate the business, of course, but it’s better for you to avoid these problems in the first place.
Mon, March 11 2013 » Criminal Law, Maine Law » No Comments
OUI can be committed by a person who has consumed zero alcohol. Anyone who drives under the influence of intoxicants commits OUI, and intoxicants are defined to include both alcohol and drugs. A person is deemed to be under the influence of intoxicants if the person’s mental or physical abilities are impaired to the slightest degree by alcohol, drugs or a combination of alcohol and drugs. When a police officer investigates a person for OUI, the officer will nearly always ask whether the person has taken any medications and, if so, what medications. People sometimes think that if the officer believes any perceived impairment is caused by prescribed medications instead of what they’ve had to drink everything will be fine. In other words, people sometimes have the impression that it will benefit them to tell the officer about their prescription medications. Actually, they should invoke their right not to answer any questions about prescription medications, because the information is damning, not exculpatory.
If an officer suspects that a driver is under the influence of drugs, prescription or otherwise, the officer will likely have the person examined by a so-called drug recognition expert (DRE). DRE’s are police officers who are trained to determine what category of drug or drugs might be causing impairment. Remarkably, the DRE’s opinion is nearly always that the person is under the influence of a drug within the category of drugs the person admitted taking. Once a DRE determines that a person is impaired by drugs, a blood or urine sample is collected and the sample is sent to the State lab. The State lab tests for drugs within the category or categories of drugs suspected by the DRE. Call me skeptical, but I suspect that the analytical abilities of the typical DRE are drastically undercut when the suspect doesn’t provide the DRE with the answer to the question in advance.
People should understand that if an officer believes he or she sees signs of impairment, and the officer can establish that the person has taken a prescription drug, and the lab confirms that the drug is present in that person’s blood or urine, it doesn’t matter that the person did not feel impaired or believe he was impaired by his prescription medication. OUI does not have a mental element. In other words there is no requirement that the person must know he or she was impaired. If impairment is established by the officer’s testimony and a chemical test shows the presence of the drug that the officer suspected was the source of impairment, grounds are established for a BMV license suspension for operating under the influence of drugs. And if the evidence satisfies a judge or jury in a criminal trial that the person was under the influence of his or her prescription medications and drove, whether the person was aware of the impairment or not, the crime of OUI is established too. So, don’t answer any questions about prescription medications. DRE’s purport to be trained experts, and a highly trained expert shouldn’t need a cheat-sheet to get the answer right anyway. Above all, don’t think you’re home free in an OUI investigation just because you’ve had nothing to drink and have only been taking your prescription medications as prescribed. To completely blend metaphors, loose lips sink ships, and you might find yourself being bitten by a dog that was wagged by its tail.
Fri, February 22 2013 » Maine Law » No Comments
This piece summarizes Maine violations involving minors possessing or consuming alcohol. The recent trial of a Falmouth couple on charges of allowing minors to consume alcohol at a party at their residence demonstrates how much trouble a person can get into for this conduct. Many parents are convinced that it is better to host a party at their own residence, where their high school or college-age children can drink with their friends, than to have the kids out drinking somewhere else in potentially dangerous circumstances. Unfortunately for parents determined to pursue this course, it is illegal and they should be aware that many prosecutors will seek jail time upon conviction. What follows is a rundown on the laws that pertain to minors drinking or possessing alcohol and those who supply minors with alcohol or allow them to drink on their premises.
PENALTIES FOR MINORS POSSESSING, CONSUMING OR TRANSPORTING ALCOHOL.
It is a juvenile crime for a person under age 18 to possess or consume alcohol, or to transport it in a motor vehicle under that person’s control. For a person who is at least 18 years of age but not yet 21, possessing or consuming alcohol is a civil infraction, punishable by a fine only. A first offense fine ranges between $200.00 and $400.00; a second offense ranges between $300.00 and $600.00; and a third offense carries a $600.00 fine. It is also a civil infraction for a person who is at least 18 but not yet 21 to transport alcohol in a motor vehicle under that person’s control. Illegal transportation of alcohol by a minor carries a fine and a court-ordered license suspension. A first offense fine can be up to $500.00, a second offense fine is between $200.00 and $500.00 and a third offense fine is between $400.00 and $500.00. All minors who are adjudicated of either the juvenile crime or the civil infraction of illegal transportation of alcohol by a minor will have their licenses suspended by the court for the following periods: for a first offense, 30 days; for a second offense, 90 days; and for a third or subsequent offense, 1 year. There are exceptions that allow minors to transport alcohol in a motor vehicle if the transportation occurs: (1) in the scope of employment, (2) at the request of a parent, guardian or custodian, or (3) when the alcohol is in the vehicle’s trunk or in a locked glove compartment and the minor is not aware it is there.
PENALTIES FOR THOSE WHO PROVIDE ALCOHOL TO A MINOR OR ALLOW A MINOR TO CONSUME ALCOHOL IN A PLACE UNDER THEIR CONTROL.
A person who procures alcohol for a minor, or furnishes, gives, sells or delivers alcohol to a minor commits a Class D crime, punishable by up to 364 days in jail and a maximum fine of $2,000.00 (with one exception discussed below). For a first offense, if the minor is less than 18 years old, the crime carries a mandatory minimum $500.00 fine. A second offense within 6 years of the first conviction carries a mandatory minimum $1,000.00 fine, and a third offense within 6 years carries a mandatory minimum $1,500.00 fine. The conduct becomes a Class C crime if the minor consumes the alcohol and the consumption in fact causes serious bodily injury or death to the minor or another person. Causation is established if the death or serious bodily injury would not have occurred but for the minor having consumed the alcohol. Class C crimes are punishable by up to 5 years in prison, up to a $5,000.00 fine, and up to 2 years of probation.
It is also a Class D crime to allow a minor who is under a person’s control to possess or consume alcohol, or to allow any minor to possess or consume alcohol in a place under the person’s control (with one exception discussed below). A first offense is punishable by a mandatory minimum fine of $1,000.00 if the minor is under age 18. A second or subsequent offense of allowing consumption, within 6 years of a first offense, is punishable by a minimum $2,000.00 fine (which is also the maximum fine for this class of crime). This is the offense that gets people into trouble when they fail to stop a minor from possessing or consuming alcohol in their home or other place under their control. The offense is frequently committed when people under age 21 consume alcohol in their own home, apartment or dormitory room with their underage peers. A 20-year-old college student who possesses or consumes alcohol commits a civil infraction, but as soon as that same student gives a beer to a fellow 20-year-old student, or allows the fellow student to drink in his or her dorm room, that’s a criminal offense. The offense is also frequently committed by parents who allow friends of their underage children to consume alcohol in their home, under the theory that this is safer than it would be if the kids were out drinking somewhere else. Note that it is not necessary for the person who owns or controls the premises to openly endorse the possession or consumption of alcohol by minors on those premises. All that is required is for the person in control of the premises to be aware of the possession or consumption and to allow it to occur. This offense also becomes a Class C crime if the minor’s consumption of alcohol in fact causes serious bodily injury or death to the minor or another person, which could occur if, for instance, the minor were to drink to a state of alcohol poisoning or crash a car.
EXCEPTION FOR IN-HOME CONSUMPTION IN PRESENCE OF PARENT.
There is an exception that makes it legal to serve liquor to a minor in a home, in the presence of the minor’s parent, guardian or custodian. If a parent serves alcohol to her own underage child in the family home, that is not illegal, but it is illegal to serve alcohol to the child’s underage friends, unless the parents, guardians or custodians of those friends are present.
This post does not constitute legal advice and should not be relied upon as such. The author does not have an attorney-client relationship with anyone who reads this piece based on the person having read this piece. This post is presented for general, informational purposes only.
Tue, February 12 2013 » Maine Law » No Comments
Update bulletin. The other day, I posted a story on the litigation surrounding Maine’s statutory/regulatory scheme for certified batterers’ intervention programs. The governing regulations allow certification only of programs for men convicted of certain violent crimes against intimate female partners. Oddly, they also contain the directive that Maine’s State certified batterers’ intervention programs must take certain measures to ensure that they “hold themselves accountable to the battered women’s movement.” The effect of these regulations is that a woman convicted of a domestic violence offense can only be sentenced to a maximum of one year of probation while a man can be sentenced to two years. In today’s Portland Press Herald, it was reported that the Maine Legislature is dealing with the gender bias issue by crafting legislation to establish gender-neutral rules for certifying batterers’ intervention programs. I hope the rules are written to insulate them from the long-dominant influence of gender politics. In today’s Portland Press Herald article, a quote appeared from Sherry Edwards, assistant director of Caring Unlimited, which for approximately the last year has held an uncertified batterers’ intervention program for women. To quote the Press Herald, Edwards explained: “Men and women are violent for different reasons, so they need separate treatment programs that ultimately have the same goals: reducing future risk to victims, and teaching participants healthier relationship skills.” Who can argue with the stated goals? But what’s with the part about men and women being violent for different reasons? Are all men violent for the same reason and all women violent for a different one? Apparently Edwards thinks so. Imagine if she proclaimed that Hispanics and Anglos are violent for different reasons and so need separate batterers’ intervention programs. Who could take that seriously? Hers is the agenda-think that got us man-specific batterers’ intervention programs to begin with. Maybe at this point we should consider that people are violent for different reasons, and then build a batterers’ intervention scheme around that. The male-only rules were first enacted on April 29, 1998—nearly 15 years ago. Evidently, within the last year or so, a few uncertified programs have sprung up for women. One can only speculate as to the timing. That aside, how about stripping out the gender politics and getting down to what’s really going on with people—individuals– convicted of committing violent crimes against intimate partners and household family members? Surely, I speak heresy.
Fri, February 8 2013 » Maine Law » No Comments
Over the past several months, the State has been replacing its old breath alcohol testing machines, the Intoxilizer 5000EN, with a newer model, the Intoxilizer 8000. Both the Intoxilizer 8000 and 5000EN operate on the principle of infrared spectroscopy, measuring the amount of infrared light absorbed in the sample chamber as it passes through a sample of deep lung air supplied by the test subject. Infrared light is absorbed at measured wavelengths by the carbon-hydrogen bond in alcohol molecules. The Intoxilizer’s computer calculates a breath alcohol level based on the detected decrease in infrared light as it travels from the light source at one end of the sample chamber to the detectors at the other end. At this level of generality, the operation of the Intoxilizer 5000EN and the operation of the Intoxilizer 8000 are essentially similar.
Both the Intoxilizer 5000EN and the Intoxlizer 8000 are designed to flag problems with the machine itself and with the breath testing process by producing certain error messages. Several changes have been made in those error messages, and/or in the descriptions of those error messages in the Intoxilizer Operation and Certification Student Manual, between the manual for the Intoxilizer 5000EN and the manual for the Intoxilizer 8000.
1. Insufficient Sample, has become Deficient Sample. The Intoxilizer 5000EN reports a person’s failure to provide an adequate breath sample within 3 minutes by printing a * next to the subject test and the words “Insufficient Sample” on the printout. The Intoxilizer 8000 instead prints DEF* next to the subject test and the message “*Deficient Sample” on the bottom of the printout. This change was probably made to reduce the confusion common among Intoxilizer operators between the Intoxilizer 5000 EN’s “Invalid Sample XXX” error message (discussed immediately below) and its “Insufficient Sample” error message.
2. Invalid Sample XXX. When the Intoxilizer 5000EN was first placed in service in Maine, it was accompanied by an operator’s manual produced by the manufacturer, CMI, Inc. In that manual, CMI explained that the Invalid Sample XXX error message meant the machine had detected residual mouth alcohol in the subject’s breath. The manual went on to explain that, because residual mouth alcohol is eliminated within 15 minutes by normal body processes, the Intoxilizer operator must abort the testing process and start another test after observing the test subject for a new 15-minute period.
In 2000, CMI issued a revised operator’s manual. In that manual, the manufacturer changed its instructions for operators encountering an Invalid Sample XXX message. In the revised manual, the operator was informed that the function was originally designed to detect mouth alcohol, but that there could be other causes. CMI’s revised manual explained that any breath sample that met the profile for an invalid sample would cause the error message to occur and that the message could be caused by puffing into the breath tube or moving the mouthpiece during a test. The manual instructed that an operator who suspected mouth alcohol was to observe the test subject for another 15 minutes before beginning a new test.
After the year 2000 revision to the CMI operator’s manual, the Maine Criminal Justice Academy picked up on CMI’s revision and expanded it. The Criminal Justice Academy, in its Intoxilizer 5000-EN Operation and Certification Manual, began instructing Intoxilizer operators that, although the test was originally designed to detect residual mouth alcohol, the Invalid Sample XXX message can occur any time a breath sample meets the profile for an invalid sample. Without explaining what the profile for an invalid sample is, the manual stated in bold and underlined text that the error message might not result from residual mouth alcohol but might be caused by puffing into the Intxolizer, sucking back, or moving the mouthpiece during a test. Again, sucking back on the breath tube was not acknowledged as a potential cause of the Invalid Sample XXX message in either the revised or unrevised operator’s manual produced by CMI. The Criminal Justice Academy’s manual did not cite any authority for its claim. The Academy’s manual did, however, instruct operators that if they suspect residual mouth alcohol they must terminate the test and observe a new 15-minute observation period before conducting a new test. The manual also instructed that if puffing, sucking back or moving the mouthpiece was suspected the officer should articulate those observations in the police report and either: (1) warn the suspect that continuing the conduct will result in a refusal determination, before attempting to proceed with the test; (2) provide that same warning before starting a new observation period and administering a new test; or (3) end the test and mark the subject as a refusal due to non-cooperation.
For Maine’s version of the Intoxilizer 8000, CMI did not produce an operator’s manual. The only existing operator’s manual for Maine’s Intoxilizer 8000 is the one produced by the Criminal Justice Academy. The Academy’s manual for the Intoxilzer 8000 maintains that the Invalid Sample XXX error message may be caused by sucking back as well as by puffing or moving the mouthpiece. Unlike the Intoxilizer 5000EN operator’s manual, the 8000 manual does not mention that the test was originally designed for detection of residual mouth alcohol. Instead, it states that the Intoxililzer is designed to flag breath samples that “meet [the] criteria” of sucking back, puffing or moving the mouthpiece. Because CMI did not produce a manual for Maine’s version of the 8000, there is no longer a readily available authoritative source to rebut the Criminal Justice Academy’s manual as to what the Invalid Sample XXX message was designed to flag or what, other than residual mouth alcohol, might cause it to occur. Officers are still instructed that when residual mouth alcohol is suspected they are to terminate the test and begin a new observation period. They are also still given three options for what they should do if they suspect that the error message is caused by sucking back, puffing or moving the mouthpiece: (1) warn the test subject that continued non-cooperating will result in a test refusal determination before attempting to continue with the test; (2) provide these same warnings to the test subject before beginning a new observation period and then starting a new test; or (3) end the test and mark the test subject as a refusal for non-cooperation.
3. INHIBITED RFI has become RFI DETECT: The error message still indicates that radio frequency interference has been detected, causing the test to abort.
4. INTERFERENT or INTERF DETECTED, SUBTRACTED has become INTERFERENT DETECTED. This is an indication that the Intoxilizer 8000 has detected an interfering substance that absorbs infrared light at the same measured wavelength as alcohol. Unlike with the Intoxilizer 5000EN, no claim is made that the 8000 is able to accurately subtract acetone from a test result. The operator is instructed to give the test subject another type of test if this error message occurs.
5. CAL CHECK OUT OF TOLERANCE. This error message is new. It indicates that one of the internal standards has been measured outside the allowable range of + 0.005 of its target value. The 8000 prints the message INVALID TEST, CAL CHECK OUT OF TOLERANCE. Operators are allowed to proceed with another test but are instructed to contact the State Lab for service if this error occurs repeatedly.
6. Other error messages remain the same from the Intoxilizer 5000EN to the 8000.
The Intoxilizer 8000 Operation and Certification Student Manual may be viewed here:
http://www.maine.gov/dps/bhs/impaired-driving/law-enf-resources/intoxilyzer/manuals.html
Wed, February 6 2013 » OUI/DUI » No Comments
In a recent case before Maine’s State Supreme Court (The Law Court), State v. Mosher, 2012 ME 133, Christopher Mosher challenged the 2-year probation term imposed as part of his sentence for a conviction of domestic violence assault. Mosher claimed that the probation term violated the equal protection clause of the Maine and U.S. Constitutions. In Maine, the maximum probation term for a Class D or E crime is ordinarily 1 year. There is an exception, however, that allows a 2-year term of probation to be imposed for those convicted of certain crimes involving domestic violence, if the court orders the defendant to complete a “certified batterers’ intervention program.” Why, you might ask, does that implicate the equal protection clauses of the Maine and U.S. Constitutions? Because the term “certified batterers’ intervention program” is defined to mean only those programs that have been certified by the Department of Corrections, and because the Department of Corrections has only certified batterers’ intervention programs designed exclusively for men. In other words, because the Department of Corrections has not certified any batterers’ intervention programs that admit females, a judge cannot sentence a female to a certified batterers’ intervention program, so while a court can impose a domestic violence sentence on a man that involves 2 years of probation, the longest probation period allowed for a convicted woman is 1 year. The fact that men can be sentenced more harshly than women for the same conduct raises an equal protection issue.
In December of 2012, the Law Court issued a ruling on Mosher’s challenge. In its opinion, the Court acknowledged its own precedent stating that equal protection concerns prohibit punishing a man more harshly than a woman for the same crime. The Court then sent Mosher’s case back to the sentencing court for a factual determination whether what appears, from the statutory/regulatory scheme, to be true is in fact true—that there are no certified batterers’ intervention programs that a court can order a woman to complete as part of a 2-year probationary sentence. The Law Court also instructed the sentencing court that, if the court finds that gender based distinctions exist in implementation of certified batterers’ intervention programs, the court should determine whether those gender based distinctions are substantially related to a legitimate governmental interest (the test for whether they pass equal protection muster). As reported in a story in the Portland Press Herald, on February 2, 2013, the sentencing court held a hearing, on February 1, 2013, to allow itself to make factual findings. It was established at that hearing that, in fact, no batterers’ intervention programs have been certified for female participation.
Why doesn’t the Department of Corrections simply certify batterers’ intervention programs for women based on the identical curriculum used in the programs it certifies for men, you might wonder? This brings us to the most interesting part of the story, to the intersection of law and politics, where gender politics have dictated the state of Maine law. To illustrate, let’s take a look at the regulations that the Department of Corrections has promulgated for certification of batterers’ intervention programs. First, the term “batterers’ intervention program” is defined as “an educational program for men…designed specifically to intervene with court referred adult men who are abusive to their intimate women partners [emphasis added].” Defining the term this way, and building the criteria for program certification around that definition, makes it rather difficult to adapt these programs to women, don’t you think? The truth is these programs, and the entire concept of domestic violence offenses, were created to apply only to men as perpetrators and women as victims, and never vice versa. Back in the early 1990’s I was an assistant district attorney watching at ground level as the political force that underpins these laws grew, propelled by members of the “battered women’s movement.” I once attended an annual statewide prosecutor’s conference at Sugarloaf Ski Resort, where we were treated to a lecture by a member of the movement on the evils of patriarchy and its promotion of the fundamental inequity in the power relationship between men (oppressors) and women (victims). Examples of the insidious reach of patriarchal assumptions included the way women in our fundamentally flawed society are “given away” by their fathers, like chattel, at their wedding. The message was that reducing domestic violence requires a fundamental re-education of men, to free us from our socialization as oppressors. At an in-house program on domestic violence within that same time frame, all of the assistant D.A.’s I worked with were made to endure a presenter, from the battered women’s movement, who lectured us that a batterer is not only a man who perpetrates physical violence against a woman but is also a man who speaks to a woman in ways she perceives as belittling or uncomfortable. Expressing disagreement can actually constitute battering if it makes the woman with whom the man disagrees feel intimidated. What does any of this have to do with the laws regarding batterers’ intervention programs? It was these same representatives of the battered women’s movement who wrote the rules on batterers’ intervention programs. It’s by design that these programs do not apply to women. In the minds of those who wrote the rules, it’s oxymoronic to conceive of a batterers’ intervention program for women.
Maybe you think I’m completely off base, so let’s look again at the Department of Corrections’ regulations for certifying batterers’ intervention programs. As seen above, they begin by defining the programs specifically in terms of men who are abusive to intimate women partners. Then, the regulations create the requirement that certified batterers’ intervention programs “shall acknowledge the leadership of survivors, who are experts on domestic abuse, and the battered women’s movement, in ending violence against women through:
- …publicly acknowledging the contributions of the battered women’s
movement and that the [Batterers' Intervention] Programs exist
in support of the goals of the [Family Violence]Projects…
- …consultation with the local [Family Violence]Project when seeking
funds in a way that competes with funding for [Family Violence]
Projects... and…
- …hold[ing] themselves accountable to to the battered women’s
movement, acknowledging that a working relationship may go beyond these
standards [emphasis added].”
That doesn’t leave much room for doubt as to who called the shots when the rules were drafted. In case there’s any room left for mistaking whether women can be made to participate in a certified batterers’ intervention program, the regulations also specify that batterers’ intervention training will be based on nationally recognized batterers’ intervention programs and “will be… comprised of the same sex (men).” The regulations further specify that it’s inappropriate for any batterers’ intervention program to involve “individual counseling; …anger management;… family therapy; or…medication management.” Instead, acceptable programs must teach that “stress, a life crisis, and chemical dependency are not causes of domestic abuse;…[and] domestic abuse is one choice a batterer makes to gain and then maintain an imbalance of power and control in his relationship with his intimate partner [emphasis added].”
I am so pleased to see that attorney Scott Hess has effectively invoked constitutional protections in an area of law that has so long been dominated by leftist feminist dogma. And I very much hope the courts don’t ultimately uphold this scheme on a finding that the disparate treatment passes equal protection muster because it’s substantially related to a legitimate governmental interest. In my view, that would represent a formal recognition and adoption by the State of the radical feminist “men are the root of all evil,” one-size-fits-all theory of violence between the sexes. And, by the way, the Maine statutes themselves do not purport to take this narrow, agenda-driven focus. By statute, a person may be sentenced to 2 years of probation if ordered to complete a certified batterers’ intervention program upon conviction of a range of offenses, if it is proven that a particular offense was committed against a ”family or household member.” The term “family or household member” is defined in gender-neutral terms and includes parents and children, adult siblings and same-sex domestic partners of either sex.
Before I leave this topic, I’d like to relate one more anecdote from my assistant D.A. days dealing with members of the battered women’s movement at ground level. One member of the movement was responsible for providing a female assistant D.A. in the office with a cartoon that hung on the lunchroom wall for quite a while. The cartoon showed a plant pot with a pair of boots sticking out of it, upside down, over the caption: “Grow dope. Plant a man.” O.K., it was kind of funny, and all the women I worked with at that time were very nice people, none of whom actually considered putting a man in the ground (that I know of), but would anyone in that lunchroom have thought it was funny if the caption had substituted the word “woman” for “man”? See, that’s the thing… it’s always a one-way street.
Thanks again, Scott Hess, and may the Maine and the U.S. Constitutions this time prevail over an abusive exercise of raw political power and control.
The Regulations for Batterer Intervention Program Certification are located here: http://www.maine.gov/sos/cec/rules/03/chaps03.htm Look near the bottom of the page, for “ch. 15″ to find the link to the PDF file.
Sat, February 2 2013 » Criminal Law, Maine Law » 2 Comments
My recent book, Maine Driver’s License Suspensions, Revocations and Related Offenses (non-OUI), is now available, from the following sources:
– From The USM Bookstore, Portland Campus.
– From the publisher, Brysontaylorpublishing.com (hard copy or PDF): www.brysontaylorpublishing.com .
– From me, by requests sent to Edmund Folsom, P.O. Box 2100, Biddeford, ME 04005-2100, with a check payable to the same for $34.00 (including packaging and mailing costs).
– From www.Amazon.com.
The book is intended as a reference book for attorneys who practice in this area of law.
Over the years, I’ve noticed a lot of confusion about the interplay between actions of the courts and the BMV and about exactly how that interplay affects a person’s license status in particular circumstances. So, I’ve crawled through the weeds and laid it out in this book, hopefully in a way that allows the reader to quickly locate the sections of the book that deal with his or her particular circumstances at that particular time. Basically, the book surveys the various reasons for a person’s license to become suspended or revoked; the various available avenues to try to avoid a suspension or revocation; the forms of relief available to those who are suspended or revoked; the elements of proof for OAS and OAR offenses; factors that lead (and don’t lead) to mandatory enhanced punishment; and statutory, due process and confrontation clause issues pertaining to proof of operating without a license, operating beyond restriction, OAS and OAR offenses. The book doesn’t cover OUI-related suspensions and revocations because I already covered those topics in my previous book.
If you got any use from my OUI book, I think you’ll find this one useful as well. You’ll no doubt go to a number of CLE’s where you’ll spend $30.00 for ½ hour of credit, and when you’re done with that ½ hour you might retain one useful point of law (you know it’s true). Granted, you won’t get CLE credit for using this book, but you’ll have a lot more practical, useful information at your fingertips than you’ll get from any hour of CLE credit you’ll earn this year.
Tue, January 22 2013 » Maine Law » No Comments
The following offers an example of how easy it is to commit criminal conduct without knowing it. It should also serve as a warning and allow people to avoid committing one crime in particular—the crime of unlawfully possessing one’s own prescription drug. Anyone who has a prescription for a scheduled drug should know that Maine law on unlawful possession defines the crime as “intentionally or knowingly possess[ing] what [one] knows or believes to be a scheduled drug, which is in fact a scheduled drug.” 17-A M.R.S. section 1107-A (1). Prescription drugs are “scheduled drugs,” so any person who receives a filled prescription meets the above definition. The only reason that every person who picks up his or her own prescription medication isn’t immediately guilty of unlawful possession is that the law contains an exception for possession under certain authorized circumstances. 17-A M.R.S. section 1107-A (1) and (2). That’s right, possession of your own prescription drugs is illegal unless you are careful to possess them only in certain authorized circumstances. What are those authorized circumstances?
A person is not authorized to possess his or her own prescription drug unless the drug is “in the container in which it was delivered by the person selling or dispensing the drug.” 17-A M.R.S. section 1107-A (2), 22 M.R.S. section 2383-B (1). There is only one circumstance in which a person is authorized to possess his or her own prescription drug outside its original container, and that is “when [the drug is] in use.” Id. As soon as a prescription drug is removed from its original pill bottle, the person who possesses it commits a crime unless the drug is, at that point, “in use.” Obviously, if a person takes a pill directly from the bottle and swallows it, the drug is “in use” during that process. But what if the person is supposed to take a pill every 4 hours and doesn’t want to carry the pill bottle around? What if the person puts a couple of pills in his or her pocket before heading off to work? The pertinent statute says a drug may be considered “in use” when it has been placed in “reasonable repackaging for more convenient legitimate medical use.” Id. But placing a pill in a pocket does not involve repackaging, so the person would arguably commit unlawful possession while the drug is in his or her pocket. There is an affirmative defense available to some who are prosecuted for possessing their own prescription drug in unauthorized circumstances, but to successfully use the defense the person must prove by a preponderance of the evidence that he or she “possessed a valid prescription for the drug… and…at all times…intended the drug to be used only for legitimate medical use in conformity with the instructions provided by the prescriber and dispenser.” 17-A M.R.S. section 1107-A (4).
Don’t scoff at the possibility that a person could be charged for carrying his or her own prescription medications loose in a pocket. There is at least one prosecutorial district in Maine where at least one assistant district attorney will not hesitate to bring a charge against a person for that conduct. In September of 2012, a story appeared in the Bangor Daily News about a man who was prosecuted for possessing a single oxycodone pill, in his home, outside the pill’s original container. Although the defendant had a prescription for the medication, the expiration date had passed. The Superior Court Justice hearing the case questioned whether a person could be guilty of possessing a drug that was prescribed to him. The Bangor Daily News quoted the assistant district attorney handling the case as claiming he’d prosecuted “hundreds” of similar cases. This assistant district attorney operates on the theory that if your prescription was expired on the date of the alleged conduct, you no longer “possessed a valid prescription” at that time and therefore cannot avail yourself of the affirmative defense. It is not clear whether: (a) the passage of the expiration date printed on a prescription pill bottle renders the prescription no longer “valid” within the meaning of the controlling statute; or (b) whether the person “possessed a valid prescription” for the drug, for affirmative defense purposes, as long the drug at issue was legitimately prescribed for that person in the first place. What is clear is, at least in this one prosecutorial district, you could find yourself on the other side of the “v.” from “State of Maine” if you aren’t careful.
To summarize:
– To legally possess one’s own prescription drug, a person must possess the drug only in its original container, except “when [the drug is] in use.”
– In this regard, the term “when in use” includes “reasonable repackaging for more convenient legitimate medical use,” so a person can only legally possess his or her own prescription drug if it is either: (1) in the original container; (2) in some form of repackaging for more convenient medical use; or (3) “when in use,” within the common sense meaning of that phrase, any time the drug is possessed outside such packaging/repackaging.
– Any time a prescription drug is possessed outside this narrow set of authorized circumstances, the drug is unlawfully possessed. However, an affirmative defense is available to those who can show that they: (1) “possessed a valid prescription” for the drug at issue; and (2) at all times intended that the drug “be used only for legitimate medical use in conformity with the instructions provided by the prescriber and dispenser.”
– At least one prosecutor in Maine claims to have prosecuted “hundreds” of people for possessing a drug that was prescribed to them.
Maine law on possession of one’s own prescription drug was at one point even more stringent. There was a time when possession of a prescription drug was only authorized if the drug was in the original container, without any exception for reasonable repackaging for more convenient medical use. Back then, I marveled that a legislative body would pass a criminal law that a significant number of its members were no doubt unwittingly violating at the moment the law was passed. After all, don’t you suppose more than a few of the legislators kept their prescription medications in those plastic medication day-planners at the time?
The lesson is that prescription pills should never be carried around loose, or stored anywhere outside their original pill bottle or some sort of repackaging that could be considered reasonable for more convenient legitimate medical use. And, by the way, unlawful possession of a number of commonly prescribed painkilling drugs is a Class C felony. If you have ever committed this crime, you have the right to remain silent so keep it to yourself and be more careful from this point on.
The above post is for informational purposes only and does not constitute legal advice. The reader has no attorney/client relationship with the author because he or she has read this posting.
Mon, January 21 2013 » Maine Law » No Comments
