About this Blog

Attorney Luke S. Rioux started the Harmless Error blog in 2012 covering developments in criminal law and trying to explain how and why the criminal justice system does what it does. Criminal cases are in the news everyday and it’s easy to read those stories as strange anecdotes. There’s always a lot more to it and this blog tries to look at the law, strategy and public policy behind those headlines.

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About the Author

I’m a criminal defense attorney in Portland, Maine. I handle cases in State and Federal Court ranging from disorderly conduct to murder. I work for Fairfield & Associates an 11 lawyer firm with offices in Lyman and Portland. The firm also handles family law, personal injury and other case types. 

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Previous entries

April 2014

March 2014

February 2014

January 2014

Tuesday April 22, 2014 | 06:25 AM

The fourth amendment to the United States Constitution is the line that stands between the citizens and government intrusion. It’s the reason police can’t randomly come into your home, pull your car over, or arrest you on a hunch. The good news, or the bad news depending on your perspective, is that the fourth amendment line has a way of developing some holes.

In what might be a good or bad sign, the United States Supreme Court agreed to hear Heien v North Carolina. The case asks whether a police officer’s mistake about the law, and his resulting belief that it was violated, can be a sufficient basis to detain someone.

Facts of Heien

In order to stop a vehicle, a police officer only needs reasonable suspicion of some criminal or traffic violation. A North Carolina police officer had that suspicion when he pulled over Nicholas Heien’s car in April of 2009. The car had one of its brake lights out and the officer thought that was a violation. North Carolina law, as it turns out, only requires a car to have a single functioning brake light. Understandably, the officer didn’t know that.

After stopping the car the officer got consent to search it. He found a plastic bag containing cocaine and Heien was charged with drug trafficking. Heien argued that the trial judge should excluded the cocaine since the stop was invalid. His request was denied and he plead guilty to drug trafficking while preserving his right to appeal. The first appeals court reversed the trial judge but the North Carolina supreme court reversed holding that, so long as officer’s mistake of law is reasonable, it can justify a traffic stop.

Ignorance of the law…

Friday April 18, 2014 | 06:05 AM

An article ran in this paper yesterday headlined: Maine approves bill to hold OUI offenders more accountable. The article covered LD 1729, which passed the Maine legislature 4/16/14 and awaits the governor’s signature. Though the initial text of the bill would have made significant changes to Maine’s OUI law, the bill was heavily amended in committee. In it’s final draft, LD 1729 makes only minor changes to our current OUI law.

“Look-back” period

Here's the break down of current minimum penalties for OUI in Maine:

  • 1st offense: Misdemeanor with $500 fine,150 day license suspension
  • 2nd offense: Misdemeanor with $700 fine, 7 days jail, 3 year license suspension
  • 3rd offense: felony with $1,100 fine, 30 days jail, 6 year license suspension
  • 4th offense: felony with $2,100 fine, 6 months jail, 8 year license suspension
To determine whether the present OUI is a second or subsequent offense, the law “looks back” to count prior convictions within the past 10 years. A prior offense from 10 years and 1 day ago will not increase the minimum penalties. LD 1729 tried to address this by extending the look-back period. Despite press reports, the final bill makes only minor changes.  

Misconceptions about the bill

 The Press Herald article said this:

Under current state law, a prosecutor who seeks to charge a drunk driver with a repeat offense is allowed to consider only the last 10 years of the driver’s record. That means a conviction that occurred more than 10 years earlier can not be considered. [LD 1729] would allow a prosecutor to consider a person’s lifetime driving record for determining whether a case counts as a repeat offense.

This language may lead the reader to believe two things that are both wrong:

  1. Prosecutors can’t consider, in any way, prior OUIs older than 10 years
  2. This bill fixes that by allowing a lifetime look-back for all prior OUIs
First, prosecutors can and do consider older priors. They say, “Well, it’s charged as a first, but he has 3 lifetime priors so the offer is 90 days.” And prior convictions only change the minimum sentence, the maximum sentence for first offense OUI is 364 days. Nothing prevents the prosecutor from asking for, and getting, a longer sentence if the facts warrant. Second, the bill does not change the OUI look-back for the vast majority of cases. The only lifetime look-back is for felony OUI convictions. Though the original version of the bill increased the look-back to 15 years, that was amended out in committee and the 10 year look-back remains.

Wednesday April 16, 2014 | 06:10 AM

Recent events have pulled back the curtain on Maine’s illegal sex trade. The Zumba prostitution scandal brought the issue to everyone’s attention, new legislation created the crime of sex trafficking and recent raids show that the State won’t turn a blind eye to these offenses.

The focus has moved away from arresting prostitutes and towards an understanding that some in the sex trade might not be there voluntarily. In the latest development, Governor LePage signed LD 1730 An Act To Assist Victims of Human Trafficking. The law goes into effect immediately and does several interesting things

A brand new defense

The law creates an affirmative defense for those charged with engaging in prostitution. Even if they had sex for money a person can be found not guilty if they can show that they were “compelled” to engage in prostitution. The definition of “compelled” is the same one used for the sex trafficking law and it includes a very broad range of conduct such as:

  • Withholding or threatening to withhold a drugs or alcohol from a drug or alcohol-dependent person.
  • Making material false statements, misstatements or omissions;
  • Perform any other act that would not in itself materially benefit the actor but that is calculated to harm the person being compelled with respect to that person’s health, safety or immigration status.

Expanded eligibility for victim’s compensation

The new law makes victims of sex trafficking eligible for payments from the state’s victim compensation fund. That fund is financed by a surcharge added to every criminal conviction in Maine. The fund can help cover expenses directly related to a crime like counseling or medical treatment. Obviously, this is going to increase the demands on that fund but there’s a way to deal with that.

Huge fees added to some prostitution crimes

Thursday April 10, 2014 | 01:17 PM

In a surprising 48 page opinion issued today. The Maine Supreme Judicial Court reversed an earlier decision that would have allowed Bailey to practice. Bailey was disbared in Florida and Massacusetes but relocated to Maine and passed the bar exam here in 2012. His application for a law license was denied and that kicked off a legal dispute that ends today with this ruling.

In June of 2013, a single justice of the Supreme Court, Justice Alexander, ruled that Bailey possessed “the requisite good character and fitness required … to be admitted to practice law in Maine.” The Board of Bar Examiners appealed to the full Supreme Court and now, four of the six judges have reversed Alexander’s ruling saying: 

Because we conclude that the single justice erred with respect to the Board’s principal assertion—that Bailey failed to prove by clear and convincing evidence that he recognizes the wrongfulness and seriousness of the misconduct that resulted in his disbarment—we vacate the judgment on that basis and do not reach the Board’s other contentions.

Chief Justice Saufley and Justice Clifford disagreed with the majority and filed a dissent. They argued that the majority improperly supplants it’s own judgment as to Bailey’s credibility for that of Justice Alexander, the judge who actually heard him and other witnesses testify:

Thursday April 10, 2014 | 06:05 AM

If you’ve been convicted of misdemeanor crime that involves “the use of physical force” against a family or household member, federal law prevents you from ever processing firearms again. Conventional wisdom has long been that a conviction for any domestic violence assault triggers the ban, but there’s good reason to question that assumption. 

Degree of Force

A wide range of conduct can be charged as misdemeanor assault; a punch to the face and a tap on the shoulder can both get you convicted. So what does “use of physical force” mean, does it all count? In U.S. v. Castleman [my post] the defense argued that “use of physical force” should be understood to require some violent force, not just physical contact with the victim. The case was decided 3/26/14 and the Supreme court rejected this argument. They ruled that intentionally or knowingly causing offensive touching is “use of force” and enough to support the firearms ban. 

Is recklessness "use"?

The Castlman court left open the question of whether recklessly causing physical contact is sufficient. In footnote 8, the justices pointed out that most federal appeals courts have held that “use of force” requires “active employment” not just negligent or reckless conduct. But the first circuit, which includes Maine, takes the minority position that recklessness is enough to trigger the firearms ban. That might change soon.

Maine case at the Supreme Court

Castleman was decided on 3/26/14 and on 3/31/14, the Supreme Court summarily overturned a Maine case United States v. ArmstrongArmstrong was convicted in Bangor Maine of a federal crime for possessing a firearm after being convicted of a Maine domestic violence assault. The domestic assault charge alleged that Armstrong “intentionally, knowingly or recklessly caused bodily injury or offensive physical contact to Rosanna Armstrong.”