Under Maine law, driving with a suspended license is called Operating After Suspension or OAS. Many people think that these crimes are easy to prove and that it’s not worth hiring a lawyer for a suspended license case. I have handled hundreds of OAS cases and there are often defenses. Here’s the story of one case where my client was charged with driving on a suspended license and a bail violation. The prosecutor refused to dismiss and my client refused to plead guilty. If he was convicted, the judge had said he would send him to jail and, since he had a lengthy driving history, the Maine Bureau of Motor Vehicles would have revoked his license for three years as a habitual offender. We had a trial and the jury found my client not guilty.
OAS and Violation of Conditions of Release Charges
The police had an arrest warrant for my client. He was on bail for a felony charge and had failed to appear for his jury selection date. Officers had information that he would arrive home in a tan colored hatchback coming from a painting job. One officer was assigned to watch the parking area and entrance to my client’s apartment building. After a couple of hours, the tan hatchback arrived and a male emerged from the driver’s side wearing painter’s coveralls, a female got out of the passenger’s side and both walked into the building. The officer watching the location radioed dispatch to say that the suspect had arrived home.
Several Portland Police Officers arrived and they entered the building. They found my client’s apartment and knocked on the door. When he did not answer they used a sledgehammer to get in. They found my client, dressed in painter’s coveralls, and his girlfriend sitting at the kitchen table. He was arrested on the warrant and cited for a misdemeanor OAS. Since my client was on bail, he was also charged with violating conditions of release for committing a crime while on bail.
Driving With a Suspended License, Elements of OAS
As with any case, a lawyer on a driving with a suspended license charge must begin by understanding the elements of the crime. To prove the case the prosecution must show that:
- The Defendant
- Operated a Motor Vehicle
- At a time when their license was suspended
- And that they had been notified of the license suspension as required by Maine Law
This case involved a notice sent by mail and Maine OAS law has very specific requirements for where the notice must be sent. You can read this article for more details about Maine Administrative License Suspensions. The box displays the relevant portion of that article.
Maine’s Driver’s License Suspension – Notice Requirements
When notice is mailed, 29-A §2482(1) requires that it be sent to:
- The address most recently provided to the bureau of motor vehicles, or
- If the person never applied for a license, the address on record with the Secretary of State, or
- Must be sent to the address provided in the report of the law enforcement officer if that address differs from the address of record; or
- May be served in hand.
The prosecution has to prove every element beyond all reasonable doubt. If they can’t do that, the verdict must be not guilty. As the trial developed, it became clear that the prosecutor had problems proving three of the four elements.
The Evidence at Trial
1. Was the Defendant the Person who Operated the Vehicle?
The police officer who staked out the location saw a man in painting clothes get out of the driver’s side of a tan car. Officers expected my client to be driving a car matching that description. But what did that cop actually see? At trial he testified that he waited across the street at the back of a parking lot over one hundred feet away from where the hatchback parked. It was late at night and, while a street light illuminated the road, there was no other lighting in the apartment parking area. That officer never saw the driver’s face and could not make any positive identification of the driver.
The other investigating officers testified that they never ran the registration on the tan car and they couldn’t present any evidence about who the registered owner was. There was no evidence that my client owned the car and there were no witnesses or other evidence that the car was loaned to my client on that date. Though the driver and my client were both wearing painter’s clothes, testimony showed that the apartment building had several residential units and a commercial space. The commercial space was leased to a painting contractor who had workers coming and going from the location all day and into the late evening.
2. Was the Defendant Suspended at the Time?
Even if the prosecution did prove my client drove the car, they still needed to prove that he was suspended at the time. The suspension at issue here was over nine years old and it was sent when my client used a different name. I knew that the prosecution would need to somehow prove that the defendant was the same person named in the notice of suspension. They had not provided me with any probate records regarding the name change and so I figured that the only thing they had was his driving history. That showed that at one point my client did use the prior name and had an entry showing that he had changed his name to it’s current form in the recent past. It also showed that the same license number was used under both names.
Luckily, the driving history also included a long list of driving offenses and convictions for criminal and civil infractions. On the morning of trial, I filed a motion to exclude the driving history arguing that it was too prejudicial. I pointed out that what really mattered was the notice of suspension, the driving history was just a list of prior bad acts that would improperly prejudice the jury. The Judge agreed and ordered the driving record excluded; the evidence at trial would just consist of the certified notice of suspension.
3. Was the Notice Mailed as Required?
If the prosecution proved that my client drove and was suspended, they also needed to show that he was notified properly. Of course, the notice that was sent out 9 years prior went to a long defunct address. The state then had to prove that the old address was, at the time of suspension, either the one most recently provided to BMV, the address on record with the secretary of state, or the address used in the police reports for the offense that triggered the suspension. They simply failed to do this. They called no witnesses, presented no documents and had no way to show that the address on the notice complied with the legal requirements.
The Case Goes to the Jury
In my closing I went through the legal requirements for an operating after suspension notice and showed how the notice here didn’t comply with the law. No evidence proved it was sent to a legally proper address and nothing established that the person named in the notice was the same person on trial for the crimes. I pointed out that no one could positively identify my client as the driver and that the prosecutor had failed to present any evidence that that the car was registered to my client. There were no witnesses who could identify my client as someone who had driven the car on previous occasions and no one testified that they had given him permission to use the car.
In rebuttal, the District Attorney urged the jury to rely on a BMV certification cover letter attached to the notice. That letter stated that a person with my client’s name was suspended on the date in question and was notified in compliance with the law. But that letter provides only the bureau’s conclusions, no supporting documents proved the BMV’s assertions. The jury didn’t buy it and they returned a not guilty verdict on the OAS shortly after closing arguments. Based on the Jury’s finding, the judge entered on a not guilty verdict on the bail violation charge.
