Driving — The Devil’s Opening to Mess With You.
Posted by Edmund R. Folsom, Esq.
January 3, 2020
No activity has more potential to enmesh the average person in the state’s police and regulatory apparatus than driving an automobile. Oh yes, it’s true. Last month, I gave a presentation at the Maine State Bar Association’s “Bridging the Gap” program, in Freeport, designed for brand new lawyers recently admitted to the Maine Bar. My bit was on collateral consequences of convictions for motor vehicle offenses. In other words, a motor vehicle conviction (or adjudication) has consequences beyond the conviction itself and any fine, license suspension or jail sentence the court imposes. Part of what a lawyer does as an advisor or “counselor” is to anticipate the consequences, help the client avoid as many as possible and deal with the effects of the ones that can’t be avoided. My assignment that day was to discuss those consequences.
On the way to Freeport for the gig, I found myself in an unbroken line of traffic. Any given vehicle in that line could have been picked off by a police officer at some point between Portland and Freeport, for at least one traffic violation. The most obvious was exceeding the speed limit. Virtually nobody was driving 65 mph or under. Exceeding the speed limit by any amount at all is a violation of law that gives an officer constitutionally reasonable grounds for a traffic stop. As an aside, just to be sure you don’t break that law, try driving a mile or two under the limit on I-295 or the Turnpike during a commuter rush and see how that works out for you. Of course, in addition to speeders, there were people hands-on talking, texting or reading texts on cell phones. Who knows how many had a brake light, tail light, plate light, marker light or headlight that didn’t work? All original equipment has to be working, you know. Some had expired inspection stickers or registrations. Then there were the usual suspects following too closely, taking no account of stopping distance. Others darted back and forth between the travel lane and the passing lane without signaling. But luckily for the teeming mass of everyday traffic violators, there was not a police officer in sight.
How Deep Might the Intrusion Go In an Ordinary Traffic Stop?
If an officer had been around, once the officer targeted a vehicle from this fertile stalking ground, the driver would have been required to produce a valid driver’s license, proof of current vehicle registration, and proof of liability insurance. If those documents were in order, the driver would only have to face a uniform traffic ticket for whatever infraction(s) the officer might charge. If the person failed to provide proof of insurance, that would be a traffic infraction. If the vehicle’s registration was expired, that might also be a traffic infraction or it might be a crime, depending how long it was expired. If the person had no license or if the person’s license was suspended, in most cases that would be a crime which could result in the person being arrested. A crime committed in an officer’s presence is grounds for arrest.
Maybe once the officer had the vehicle pulled over, she might have noticed something that made her suspect the driver was committing a crime, like OUI. If the suspicion was reasonable, based on articulable facts, the officer would have had grounds to detain the person for a limited time, to make a limited inquiry and investigate the new suspicion. As part of a traffic stop, an officer has authority to ask a person to get out of the vehicle. If the officer has reasonable suspicion that the person is armed and presently dangerous, the officer is allowed to pat the person’s outer clothing to feel for a weapon. If the officer feels what seems to be a weapon, the officer is allowed to reach into the person’s clothing to remove it. Meanwhile, if contraband or anything that appears to be evidence of a crime is visible to the officer inside the vehicle, from the officer’s vantage point outside the vehicle, this gives the officer probable cause to enter the vehicle, to seize the item that’s in plain view. It will also, often, provide probable cause to believe contraband is located elsewhere in the vehicle. In that case, the officer has grounds to search the vehicle and all containers inside it, without a search warrant, everywhere there is probable cause to believe contraband lies.
If the officer can arrange for a drug-sniffing dog to arrive on scene during the time it takes to check documents, run the person’s license status, check for warrants and write a ticket for an infraction, the officer is allowed to have the dog sniff the outside of the vehicle while she conducts those activities. If the officer arrests the person for a crime there’s no great rush in getting the dog there for a sniff. If a sniffing dog alerts on the vehicle, this will generally provide probable cause for the officer to conduct a warrantless vehicle search for contraband. Again, a search of an automobile based on probable cause extends to the entire vehicle and all containers in it where there’s probable cause to believe contraband lies. Because a dog sniff itself is not a 4th Amendment “search,” and because a dog sniff can provide probable cause for a deep dive into the automobile and everyone in it, police have developed a deep fondness for rushing a nearby dog to the scene whenever they feel like fishing.
If the officer arrests the driver for a crime (OAS, operating without a license, operating with a registration expired more than 150 days, driving to endanger, OUI, unlawful possession of drugs, etc.), that gives the officer carte blanche to search the driver, including the driver’s clothing and everything else on the driver (other than the contents of a cell phone), in “a search incident to arrest.”
How Deep Might You be Pulled Into the Briar Patch by a Motor Vehicle Conviction or Adjudication?
If a person receives a traffic ticket for one or more infractions, unless the person contests the charge through Maine’s District Court Violations Bureau within the time allowed, the person will be defaulted and will owe a waiver fine. If the person does not pay the fine promptly, the Violations Bureau will cause the Secretary of State to suspend the person’s license. If that happens, the person’s license will not be reinstated until the person pays the fine in full to the Violations Bureau and then pays a reinstatement fee to the Secretary of State. Driving while under suspension carries a 60-day license suspension. With a few exceptions, it is also a basis for habitual offender revocation for anyone convicted of three habitual offender eligible offenses committed in a 5-year period. A person whose license ends up being revoked due to habitual offender status may not petition for license reinstatement until 3 years after the date of revocation — that’s 3 years off the road, although some people qualify for a work-restricted license after a year and a half. Sometimes a person actually has insurance but does not have proof of it during the traffic stop. People have been known to pay a fine for failing to show proof of insurance, even though they had insurance, because they don’t understand that the charge will be dismissed if they just show proof to the Violations Bureau. Anyone adjudicated of failing to show proof of insurance is required to file an SR-22 with the Secretary of State for 3 years to keep their license valid. Failure to meet the requirement leads to license suspension. Sometimes when a person switches insurers, the ball gets dropped on the SR-22 getting filing – oops.
Sometimes, a person with a speeding ticket gets suspended for failing to pay the fine, and then gets charged with OAS for driving after the resulting suspension. If the person is convicted of the OAS charge, the court will generally only impose a fine, without any license suspension. The BMV will impose a 60-day license suspension when they receive the notice of conviction from the court. Sometimes, the license of a person with a speeding ticket gets suspended because the Secretary of State assigns points to a person’s record for each adjudication of a “moving violation.” Accumulation of 12 or more points in a given year causes the Secretary of State to suspend a person’s license. If a person is adjudicated of 10 moving violations committed on 10 different occasions within a 5-year period, this leads to a 3-year habitual offender revocation, regardless whether the person ever previously accumulated enough points to suffer a 15-day license suspension.
Driving a car is a kind of invitation to the devil to enter your life – the devil that’s in all those little details of the State’s regulatory and police surveillance scheme. If you’re the kind who stands out in the crowd in the traffic flow, and if you’re not the kind who pays close attention to detail, that little devil just might try to eat you alive. If you choose to go it alone, your chances of being eaten up will probably rise.
As with all my posts, this one does not contain legal advice. It contains information only. It is not to be taken as legal advice. No one who reads this post has an attorney-client relationship with the author by virtue of reading it.