DOMESTIC VIOLENCE FIREARMS BAN- WHAT’S NEW IN MAINE?
Posted by: Edmund R. Folsom, Esq.
Date: July 7, 2016, Updated December 4, 2018.
DISCLAIMER: The following is not legal advice. It is not intended as legal advice and should not be taken as legal advice. I offer it to potentially aid understanding only.
Last year, the Maine Legislature made changes to the statute that prohibits people in various circumstances from possessing firearms, 15 M.R.S. §393. I previously blogged https://edfolsomlaw.com/2015/11/ about the changes that affect firearms possession for those convicted of certain Class D (misdemeanor) domestic violence crimes: domestic violence assault, 17-A M.R.S. §207-A; domestic violence criminal threatening, 17-A M.R.S. §209-A; domestic violence terrorizing, 17-A M.R.S. §210-B; domestic violence stalking 17-A M.R.S. §210-C; and domestic violence reckless conduct, 17-A M.R.S. §211-A. The 2015 Legislative amendments specifically provide that, where one of these particular offenses is involved, a person is deemed to be convicted of it “upon acceptance of a plea of guilty or nolo contendre,” and a ban on possession of firearms begins at that point. 15 M.R.S. §393(1-B)(2015). There is no provision in the 2015 legislation indicating that the Maine ban on firearms possession is to end any time before the expiration of 5 years, even in cases where the defendant is allowed to withdraw his or her plea to the offense and the case is dismissed at the end of a deferred disposition period. In other words, under the 2015 legislation, the ban on firearms possession continues for 5 years after entry of a plea on a deferred disposition, even if the underlying case is dismissed, say, 1 or 2 years after the plea is entered. Beginning with L.D. 1603, which took effect on July 29, 2016, this has been changed.
The controlling statute still provides that a person is deemed to be convicted, under 15 M.R.S. §393(1-B), upon acceptance of a plea of guilty or no contest, and that a 5-year firearms ban begins at that point. Id. However, L.D. 1603 added the following language to §393(1-B): “If, at the conclusion of the deferred disposition period, the court grants the State’s motion to allow a person to withdraw the plea and the State dismissed the pending charging instrument with prejudice, the 5-year period [during which firearms possession is banned] terminates.” This amendment sets 2 preconditions for ending the 5-year firearms ban : (1) the “charging instrument” involved in the deferred disposition– not just a particular charge within the charging instrument, but the entire charging instrument– must be dismissed; and (2) the dismissal of the charging instrument must be with prejudice. The second of these preconditions is the easier one to deal with, because the statute governing plea withdrawal and dismissal at the end of a deferred disposition term specifically provides that, in those circumstances, “the State shall dismiss the pending charging instrument with prejudice.” 17-A M.R.S. §1348-A. The first of the two preconditions was a little trickier, which led the Legislature to make an additional change to the statute, effective July 4, 2018. The statute now states that the ban ends not when the State dismisses “the pending charging instrument with prejudice,” but when the State dismisses “the charge that gave rise to the prohibition with prejudice.” This eliminates the problem described immediately below that was created by the requirement, up until July 4, 2018, that the entire charging instrument had to be dismissed with prejudice at the end of the deferred disposition term for the 5-year ban to terminate early.
Often, a person is charged by multi-count complaint or indictment. Let’s suppose Joe Bloe is charged by complaint with domestic violence criminal threatening, count 1; obstructing the report of a crime, count 2; and disorderly conduct, count 3. Joe enters into a 1-year deferred disposition agreement that calls for a dismissal of counts 1 and 2 for successful completion of the deferred disposition term, with a $200.00 fine on count 3. At the beginning of the deferred disposition term, Joe begins a 5-year period under which he is banned by Maine law from possessing firearms. At the end of the 1-year deferred disposition term, the State moves to allow Joe to withdraw his plea to counts 1 and 2, and those counts are dismissed with prejudice. Does the 5-year ban on possession of firearms expire at this point, now that the domestic violence criminal threatening charge that gave rise to the ban has been dismissed? Not by the plain terms of the statute, it doesn’t. The domestic violence criminal threatening and obstructing the report of a crime charges have been dismissed with prejudice, but the charging instrument, itself, has not been dismissed. In fact, Joe has been convicted and sentenced on count 3 of that charging instrument, so it appears the 5-year ban continues. It seems, from the language of both 17-A M.R.S. §1348-B and 15 M.R.S. §393(1-B), that the Legislature contemplated dismissal of the entire charging instrument at the end of a deferred disposition term; not dismissal of only certain counts within a charging instrument. In this statutory framework, to ensure that the 5-year ban on firearms possession ends when dismissal is entered at the end of a deferred disposition term, if the deferred disposition agreement calls for the person to receive a sentence for an offense other than the one that triggered the firearms ban, counsel will need to ensure that the offense for which the person receives the sentence is charged in a separate charging instrument.
The 2015 amendments to 15 M.R.S. §393 became effective on October 15, 2015. All of what is described above only applies to those who enter into a deferred disposition agreement, involving a guilty plea to one of the specified offenses, on or after October 15, 2015. Those who entered, or those who will enter, into a deferred disposition agreement on and between October 15, 2015 and July 28, 2016 will initially be subject to a ban on possession of firearms that is to last for 5 years, period. Once July 29, 2016 rolls around, those same people will be able to terminate the ban at the end of their deferred disposition terms, but only if they are careful to ensure that the entire charging instrument that was pending during the deferred disposition term is dismissed– not just part of it, but the whole thing.
DISCLAIMER. This post is for informational purposes only. It is expressly not intended as legal advice. Nobody should, in any way, take it as legal advice or act upon it as if it constitutes legal advice.