OPERATING AFTER HABITUAL OFFENDER REVOCATION – “PUBLIC WAY.”

Posted by Edmund R. Folsom, Esq., December 4, 2018.

OPERATING AFTER HABITUAL OFFENDER REVOCATION – “PUBLIC WAY.”

The statutes that define operating after habitual offender revocation (OAR), 17- A M.R.S. §2557-A, and aggravated operating after habitual offender revocation (aggravated OAR), 17-A M.R.S. §2558, prohibit a person whose license has been revoked as an habitual offender from operating a motor vehicle “on a public way, as defined in Title 17-A, section 505, subsection 2.”  Up until October 15, 2015, the term “public way” was defined in 17-A M.R.S. §505(2) in a way that reached operation of a vehicle on privately owned areas accessible to the public, such as store parking lots.  To that point, the section 505(2) definition included any “way upon which the public has a right of access or has access as invitees or licensees.”

By legislation effective October 15, 2015, the §505(2) definition was changed to eliminate any reference to private areas on which the public has a right of access as invitees or licensees, leaving the definition to include only areas “owned and maintained by the State, a county or a municipality…or under the control of park commissioners or a body having like powers.”  Effective that date, the plain language of the OAR and aggravated OAR statutes, and their incorporation of section 505(2), did not prohibit habitual offenders from operating motor vehicles in privately-owned parking lots.  I don’t know why the change was made to §505(2), in 2015.   Section 505 creates the crime of “obstructing public ways,” so maybe the Legislature decided that this offense swept too broadly when it was defined to cover the obstruction of privately-owned areas.  If so, maybe they simply neglecting to consider that the habitual offender and aggravated habitual offender statutes would also be affected by the change.  Regardless why the statute was changed to eliminate reference to privately-owned areas in 2015, this year, by emergency legislation, a new change was made that once again causes the habitual offender and aggravated habitual offender statutes to reach operation on private areas accessible to the public.  Effective July 4, 2018, §505(2) once again includes coverage of “a way upon which the public has access as invitees or licensees.”

I point this out because the most recent edition of my book, “Maine Driver’s License Suspensions, Revocations and Related Offenses (non-OUI) – 2016 Edition,” highlighted the 2015 change to the section 505(2) definition of “public way” and the fact that OAR and aggravated OAR could not be committed in privately owned areas as of October 15, 2015.  Well, I wrote that in October of 2015.  That was then, and this is now.  This year’s statutory change was brought to my attention months ago by Attorney Mark Peltier who was informed of it as he was about to litigate a charge of OAR alleged to have occurred in a business parking lot, post- 10/15/15.  I am just getting around to pointing it out.   Of course, the 2015 statutory language still controls for all conduct that occurred between October 5, 2015 and July 3, 2018, so there may be active cases still in the pipeline that involve the mischarging of conduct that occurred wholly on privately-owned land during that period.  But be on notice that for anything before October 15, 2015 and anything on or after July 4, 2018, business parking lots are in the mix.

 

Disclaimer:  As always, this post does not contain legal advice.  No reader has an attorney/client relationship with me by virtue of having read this post.  This post is for informational purposes only and is specifically not to be relied-upon as legal advice.



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