Beruflich Dokumente
Kultur Dokumente
_____________
IN THE
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR REVIEW ................................................................. ii
1.
2.
3.
4.
5.
6.
2.
CONCLUSION............................................................................................................. 62
................................................................................................................. 14
APPENDIX H............................................................................................................... 16
Imperative Judicial Notice Violation Of Maine Code Of Judicial
Conduct........................................................................................................... 16
APPENDIX I ................................................................................................................ 19
Reply Brief for Appellant ...................................................................................... 19
APPENDIX J................................................................................................................ 25
Defendant's Rescission Of Agreement Under Deferred Disposition ................... 25
APPENDIX K ............................................................................................................... 27
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
vi
................................................................................................................. 42
APPENDIX N............................................................................................................... 44
Dismissal ............................................................................................................... 44
APPENDIX O ............................................................................................................... 45
Agreement Of Defendant And Order Deferring Disposition ............................... 45
APPENDIX P ............................................................................................................... 47
Motion To Dismiss Count 2 Under Federal Rules Of Evidence 410(a)(2) .......... 47
APPENDIX Q ............................................................................................................... 49
Plea Offer............................................................................................................... 49
APPENDIX R ............................................................................................................... 51
3RD Motion To Dismiss With Prejudice For Discovery And Due Process
Violations ........................................................................................................ 51
APPENDIX S ............................................................................................................... 58
Order on Rule 80C Appeal .................................................................................... 58
APPENDIX T ............................................................................................................... 64
Petitioner's Reply Brief Rule 80C......................................................................... 64
APPENDIX U............................................................................................................... 76
Respondent's Brief ................................................................................................ 76
APPENDIX V ............................................................................................................... 80
Rule 80C Petition Brief for Appellant .................................................................. 80
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
vii
............................................................................................................... 138
TABLE OF AUTHORITIES
All legal authorities cited in support of Petitioners arguments exist within
the supplemental documents included in the Appendix for space-saving purposes
and to adhere to the 40 page limitation for the body of the petition.
OPINIONS BELOW
The opinions of the Maine Supreme Judicial Court and Kennebec County
Superior Court are reproduced in Appendix A through Appendix AAA.
STATEMENT OF JURISDICTION
On December 16, 2014 the Kennebec County Superior Court entered a final Order
in this case; therefore, the jurisdiction of this Court is properly invoked under 28 U.S.
Code 1257(a).
cannot offer leniency with regard to page length, Petitioner requests leave for extra
time to reduce its size and re-file a 40-page petition.
Maine law regarding the privilege of having a drivers license to use a
private automobile on public roads and the legal consequences for failing to do so
require a closer inspection under principles of the plain meaning rule. 29-A M.R.S.
1251(1-A) says,
Residents required to obtain license. Within 30 days of becoming a
resident of this State, a person shall apply to obtain a license in accordance
with section 1301. Except as provided in section 510, subsection 1, a person
who fails to comply with the requirement of this subsection and operates a
motor vehicle on a public way or parking area commits:
A. A traffic infraction if the person has been a resident for less than 90
days; or
B. A Class E crime if the person has been a resident for at least 90 days.
According to 1251(1-A), applying for a drivers license is compulsory for all
Maine residents over the age of 16, which is not a privilege at all. In fact it is a legal
mandate which converts the privilege of having a drivers license into a mandatory
adhesion contract over which the public traveler in a weaker position has little
choice over the license terms.
In addition to being required by state law to apply for a drivers license, the
weaker member of the public is also required under Motor Vehicle Rules, Ch. 3 to
disclose all private medical information that may affect any safe operation which
can be and is then used as a weapon against the individual to restrain and seclude
that person from independently traveling in public, from autonomously performing
vital activities of daily living and self-reliantly pursuing an occupation in violation
of 42 U.S. Code 10801 and 10841.
In 2005 Petitioner unwillingly obeyed Motor Vehicle Rules, Ch. 3 which
Petitioner asserts to be a violation of her 1st Amendment right not to speak about
her medical issues, a violation of her right to privacy of her medical information and
a violation of her right to not be targeted or discriminated against due to a
documented medical disability. Libertas omnibus rebus favorabilior est. Liberty is
more favored than all things. Libertas est naturalis facultas ejus quod cuique facere
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
19
libet, nisi quod de jure aut vi prohibetur. Liberty is the natural power of doing
whatever one pleases, except what is prevented by law or force.
On January 5, 2010 Respondent invoked 29-A M.R.S 2458(2)(D) claiming
Petitioner was incompetent to drive a motor vehicle (App. UU) solely because
Petitioner never received nor completed a medical evaluation request in November
2009 (App. VV) and which Respondent knew was not properly served upon
Petitioner personally or through public notices as evidenced in Petitioners driving
record. (App. WW) A l'impossible nul n'est tenu. No one is bound to do what is
impossible. Impossibilium nulla obligatio est. There is no obligation to perform
impossible things.
Failure to receive a piece of paper certainly cannot equate medical
incompetence.
What if Petitioner properly filed a change of address form but a Motor
Vehicle employee didnt change the computer address before the notice was sent?
Would Petitioner still be deemed incompetent to drive a motor vehicle and
deprived of the drivers license?
The medical suspension for incompetence commenced without any facts in
the driving record (App. WW), no official opinions of a medical professional, no
police officer report or complaint by any party expressing reasonable concerns of
risk of unsafe operation or imminent hazard to the safety and welfare of the public.
Neminem laedit qui jure suo utitur. A person who exercises his own rights injures
no one.
Contrarily, 5 days before commencing the medical suspension, Respondent
gave Petitioner a violation free credit on December 31, 2009 for having no traffic
offenses or accidents during 2009 which, when combined with the credits earned in
2008 (and again in 2010 posted on March 8, 2011 upon deletion of the medical
suspension) (App. WW), defeats Respondents claims that Petitioner was in any way
incompetent to drive a motor vehicle. Probandi necessitas incumbit illi qui agit.
The necessity of proving rests on the one who sues.
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
20
Maine Supreme Judicial Court said, The record does not reflect any civil or
criminal charge related to that [medical] suspension, or that she was otherwise
affected by the suspension. (App. B) This retort by the court is abundantly
contradicted in the record showing Petitioner was convicted of a strict liability Class
E crime after entering a coerced plea of nolo contendere on July 5, 2011 for a
violation date of February 10, 2011 for Operating After Suspension under 29-A
M.R.S. 2412-A(1-A) directly resulting from two unconstitutional traffic stops on
February 10, 2011 and March 7, 2011 which revealed the existence of the medical
suspension of January 5, 2010 and which served as Petitioners first knowledge of
the medical suspension. Ignorantia praesumitur ubi scientia non probatur.
Ignorance is presumed where knowledge is not proved.
The record shows Secretary of State failed to invoke proper authority under
29-A M.R.S. 1258(5) to indefinitely suspend a drivers license for failure to comply
with a medical evaluation request. Expressio unius est exclusio alterius. The
expression of one thing is the exclusion of another.
This petition respectfully requests the Supreme Court to thoroughly review a
labyrinth of companion cases involving administrative, civil and criminal law all of
which interfered with Petitioners rights to speak, to be heard, to have privacy of
her medical information, to be free from discrimination based on her disability, to
enjoy equal protection of the law, to enjoy her freedom of movement and right to
travel, to not be deprived of due process, to have prompt, lawful and fair hearings,
to discover and present evidence of her innocence, to confront all accusers, to have
effective assistance of counsel, to be free from cruel and unusual punishment and
not be subjected to any kind of involuntary servitude by use of the law or the legal
process. Actus curiae neminem gravabit. An act of the court will prejudice no one.
Actus legis nemini est damnosus. An act of the law prejudices no one. Actus legis
nemini fadt injuriam. An act of the law does no one wrong.
Respondent, the court and Petitioners legal counsel exploited Petitioners
legal ignorance and violated appellate rules by coercing Petitioner to agree to a oneGina Turcotte v. State of Maine, Petition for Writ of Certiorari
22
year deferred disposition on December 18, 2013 under 17-A M.R.S. 1348 et seq.
(App. O) despite all parties knowing Petitioner filed a proper appeal on December 5,
2013 challenging the courts denial of her 3rd Motion to Dismiss. (App. R) Acta
exteriora indicant interiora secreta. Outward acts indicate the thoughts hidden
within.
After Kennebec County Superior Court unfailingly refused to grant any of
Petitioners five (5) motions to dismiss filed between August 27, 2012 and January
29, 2014 (App. K, P, R, AA, KK), notwithstanding any of Petitioners appeals to the
Law Court, her Motion to Reconsider and her rescission of the deferred disposition
agreement for fraud (App. J), the final judgment upon which this petition is based is
the December 16, 2014 final dismissal of Count 2 (App. A) after Petitioner
successfully completed an unconstitutional and deceitfully coerced one-year
deferred disposition contract which egregiously violated Petitioners rights, rules of
court and appellate procedures. Acta exteriora indicant interiora secreta. Outward
acts indicate the thoughts hidden within.
Petitioner was forced to labor under involuntary servitude to the court by the
use or threat of coercion through law or the legal process from February 10, 2011
until December 16, 2014 forcing Petitioner to defend against frivolous criminal
charges directly resulting from Secretary of States unconstitutional license
suspension which was commenced without legal justification, notice, hearing or due
process of law. Judex damnatur cum nocens absolvitur. The judge is condemned
when the guilty party is acquitted.
Medical Suspension
More than 1,900 days ago on November 2, 2009, Petitioner was unwillingly
transient due to the epidemic of substandard residential housing when State of
Maine Secretary of State Bureau of Motor Vehicles Medical Review Section sent a
Request for Medical Evaluation under 29-A MRSA 1258(3) to determine the
competency of a person to operate a motor vehicle to Petitioners last reported
Petitioner traveled safely in her private automobile until March 7, 2011 not
knowing the drivers license had been suspended for medical reasons.
AUGDC-CR-2011-513
On February 10, 2011 Petitioner was stopped by a police officer for a de
minimus traffic violation without probable cause of criminal conduct at which time
Petitioner was released from the scene with a traffic ticket for failure to obey a
traffic control device. (App. WW) The officer never indicated any problems with the
drivers license or registration paperwork.
AUGDC-CR-2011-512
On March 7, 2011 Petitioner was stopped in the same place around the same
time by the same police officer again with no probable cause of criminal conduct.
The officer expressly said he stopped Petitioner this time because after the
February 10th traffic stop1 he discovered the Medical Review Section had suspended
the license for medical reasons on January 5, 2010. The officer used Petitioners
medical information to initiate a traffic stop on March 7 which violated Petitioners
rights under the Constitution, the Americans with Disabilities Act and the PAIMI
Act.
The officer admitted having no other information nor did he provide required
actual notice as required by 5 M.R.S. 9052(4), 29-A M.R.S. 112 and 29-A M.R.S.
2482(2) before issuing Petitioner two strict liability criminal summonses for
operating after suspension under 29-A MRSA 2412-A(1-A), one for February 10
(AUGDC-CR-2011-513) and the other for March 7, 2011 (AUGDC-CR-2011-512).
(App. SS)
29-A M.R.S. 2412-A does not expressly criminalize operating after medical
suspension nor failing to complete medical evaluation, but it does restrict failure
The officer said bureau of motor vehicles database was offline at the time of the February
10 stop and when he gained access at a later time the officer discover Petitioners license was
suspended.
district court on July 5, 2011 on two Class E strict liability criminal charges of
operating after suspension under 29-A MRSA 2412-A(1-A).
On July 5, 2011 Petitioner moved for a dismissal of all charges after giving
the district court judge a certified copy of the driving record printed on that day to
show no suspensions existed on February 10 and March 7, 2011. (App. WW) The
court mistakenly interpreted a June 28, 2011 license suspension for failure to pay
the fine resulting from the de minimus infraction from February 10, 2011 as the
necessary prior offense to support the criminal charges from February 10 and
March 7, 2011. Favorabiliores rei potius quam actores habentur. Defendants are
rather to be favored than plaintiffs. Ignorantia judicis est calamitas innocentis.
The ignorance of the judge is the misfortune of the innocent. Ignorare legis est lata
culpa. To be ignorant of the law is gross neglect of it. Impius et crudelis judicandus
est qui libertat; non favet. A person is to be judged impious and cruel who does not
favor liberty.
Assistant District Attorney Steven Parker coerced Petitioners plea of nolo
contendere by threatening imprisonment on both counts without benefit of counsel.
The District Attorney offered dismissal of the March 7th charge in exchange for a
guilty plea to the February 10th count of operating after suspension. Petitioner
entered a plea of nolo contendere, vis compulsiva. Acta exteriora indicant interiora
secreta. Outward acts indicate the thoughts hidden within.
On December 2, 2011, Petitioner was conducting personal court business at
the Augusta District Court when she was ordered into the courtroom by a judge to
explain Petitioners failure to pay the fine associated with the March 7th operating
after suspension charge. Petitioner expressly claimed the charge was illegal, invalid
and charged against her in violation of her right to due process. The judge expressly
told Petitioner she had two choices: 1) pay the fine, or 2) go to jail the judge thereby
violating Actus curiae neminem gravabit. An act of the court will prejudice no one.
Ejus nulla culpa est cui parere necesse sit. No guilt attaches to a person who
is compelled to obey.
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
27
Petitioner expressly reserved her rights and told the court she took exception
to being threatened with being kidnapped for failure to pay a fine for an action that
was not a crime and that was illegally judged against her. Petitioner expressly
declared her intention to pay the fine vis compulsiva only to stay out of jail which
she did before leaving the courthouse. Libertas omnibus rebus favorabilior est.
Liberty is more favored than all things. Quotiens dubia interpretatio libertatis est,
secundum libertatem respondendum erit. Whenever there is an interpretation
doubtful as to liberty (or slavery), the decision must be in favor of liberty.
Petitioner has refused to pay any other costs or reinstatement fees related to
those charges or to restore the drivers license which expired December 17, 2012.
(App. WW)
Consequently, as a direct result of Respondents aggressive prosecution of
AUGDC-CR-2011-513, Petitioner was forced by those legal circumstances to travel
with impunity without a drivers license in her private unregistered automobile
exercising her inherent right to freedom of movement and unencumbered travel in
order to attend to her activities of daily living. Neminem laedit qui jure suo utitur.
A person who exercises his own rights injures no one.
Petitioner traveled safely without a drivers license in her private
unregistered automobile with no negative interactions with law enforcement until
February 16, 2012 when Augusta Police Officer Christopher Guay saw Petitioners
unregistered private automobile parked on a public road during a roving patrol and
decided Petitioner was engaging in suspicious or criminal conduct justifying the
officers attention. (App. PP)
In favorem vitae, libertatis, et innocentiae omnia praesumuntur. All
presumptions are in favor of life, liberty, and innocence.
Ofc. Christopher Guay and Petitioner had had negative official contacts prior
to February 16, 2012 which were prejudicial against Petitioner causing Petitioner to
file a sworn affidavit with the Augusta Police Department in November 2011
swearing to the truth of a situation which was misrepresented by Ofc. Guay. (App.
Y)
Petitioner has also had many prior prejudicial interactions with other
Augusta police officers arising from civil disturbance calls placed by Petitioner
against disruptive tenants in or around her various residences. Most of those civil
calls were minimized or ignored by the police department to Petitioners detriment.
(App. Y)
AUGSC-CR-2012-286 / KEN-14-18 / KEN-14-151
On February 16, 2012 Petitioner parked her private automobile in a public
parking spot at curbside on a main street while she was inside visiting a friend.
During a roving patrol, Augusta Police Ofc. Christopher Guay passed Petitioners
automobile and noticed it was unregistered and instead displayed a private sign
that said private, peaceful, which he admitted in the police report he had seen that
type of plate in prior official police emails and which the officer suspected was
evidence of some sort of terroristic sovereign citizen activity, criminal conduct or
another reason to park his patrol car in order to constantly observe Petitioners
automobile while waiting for Petitioner to return to her automobile. (App. PP)
Impius et crudelis judicandus est qui libertat; non favet. A person is to be judged
impious and cruel who does not favor liberty.
Once Petitioner returned and began to move her automobile over public
roads, the officer immediately followed and reported in his narrative, I am aware
that people who claim to be sovereign citizens display these types of plates. For that
sole reason the officer called in a traffic stop, the reason for the stop, and activated
[his] blue emergency lights. After Petitioner stopped her car within one-tenth of a
mile after the officer first signaled for her to pull over, the officer approached and
told Turcotte that [he] had stopped her for having a false plate attached to her
vehicle. (App. PP) Ignorare legis est lata culpa. To be ignorant of the law is gross
neglect of it. In favorem vitae, libertatis, et innocentiae omnia praesumuntur. All
presumptions are in favor of life, liberty, and innocence.
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
29
After repeatedly explaining the law to the officers, refusing to exit her vehicle
under protections of the 4th Amendment and expressly asserting her right to travel
and be secure against unwarranted searches and seizures, Petitioner was forcibly
removed through her car window with minimal force by three officers. (App. PP)
Petitioner was arrested and booked for one count operating after suspension,
illegal attachment of plates, refusing to submit to arrest and released a few hours
later on a $300 bail bond.
AUGSC-CR-2012-667
On April 5, 2012 Petitioner was stopped by Ofc. Steven Corbett in Oakland
Maine for having no inspection sticker. (App. NN) Upon initial inquiry Petitioner
told the officer she did not have a license, registration nor insurance.
The officer repeatedly demanded Petitioner exit her vehicle which Petitioner
refused under protections of the 4th Amendment. The officer told Petitioner if she
did not exit her vehicle the officer would break her car window and she would be
forcibly removed. (App. NN)
Petitioner repeatedly refused to exit her vehicle prompting the officer to walk
to the trunk of his cruiser to retrieve a tool and then started walking back toward
Petitioners car with what appeared to be a pry bar or other dangerous weapon.
Petitioner watched the officers actions in her car mirrors reasonably fearing
for her safety due to the fact that she was alone in an isolated residential area with
a police officer who appeared to have a dangerous weapon who stated his intention
to break her car window to use excessive force to extract her from her car over
jagged glass for an inspection sticker violation.
In her desperate attempt to escape serious bodily injury Petitioner moved her
car and left the scene traveling to the Oakland Police Department. The officer gave
chase and called for backup which quickly gave pursuit with lights and sirens
trekking no more than half a mile to the Oakland Police Department.
Petitioner stopped two-tenths of a mile past the police station at the end of a
dead-end street in a private parking lot of a steel recycling yard. Petitioner chose to
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
30
surrender on private property under camera surveillance with other private people
present for her own safety and welfare.
Petitioner exited her car with both hands raised above her head showing no
resistance as the two patrol vehicles entered the parking lot. Sgt. Rick Stubbert
exited his police SUV with his gun drawn and pointed at Petitioner ordering her to
drop to the ground. (App. NN) As they approached Petitioner laying on the ground,
Sgt. Stubbert asked Ofc. Corbett what the nature of the situation was when Ofc.
Corbett said, Oh, its a constitutional rights issue and I just violated all of hers
Petitioner complied with all requests without any resistance, was handcuffed,
arrested and booked on one count violating conditions of release, operating after
suspension, improper plates, and failure to stop for an officer.
Petitioner was eventually transported to county jail and released 18 hours
later on April 6 at 12pm on a $1,500 bail bond.
At the arraignment, Petitioner requested and the court ordered courtappointed counsel but the first two attorneys (Stephen Bourget, Lisa Whittier)
withdrew after objecting to Petitioners defense strategy to retroactively challenge
the January 2010 medical suspension. Both attorneys disclaimed the validity of
Petitioners strategy and refused to give any assistance in that regard.
Petitioners third court-appointed counsel, Harold Hainke, Esq., was assigned
by the court on May 21, 2012 under a written contract with Petitioner as stand-by
counsel (App. F) only with a clear understanding by all that Petitioner was going to
direct the course of all proceedings, draft and present all motions, interview all
witnesses, speak with Respondent and the court in all matters, and would be
responsible for all trial activities before and during trial with express exception to
court rules, laws and case precedent for which Petitioner relied on Mr. Hainkes legal
expertise and duty of care under the 6th Amendment. Mr. Hainke also agreed in
writing that he would not communicate in any way on Petitioners behalf with the
court or Respondent without Petitioners inclusion and explicit permission.
Mr. Hainke offered no assistance in getting this motion heard nor did he urge
the court to hold a proper probable cause or suppression hearing.
On September 13, 2012 Petitioners petition for post-conviction review of the
July 5, 2011 nolo contendere plea in AUGDC-CR-2011-513 was summarily
dismissed by Justice William Anderson stating, While coercion or duress in
securing the plea is cognizable grounds for post-conviction review, State v. Huntley,
676 A.2d 501,503 (Me. 1996), it appears from the face of the petition that Petitioner
no longer labors under any restraint or impediment that would satisfy the statute's
jurisdictional prerequisite, because she paid her fine on December 2, 2011, and she is
not currently incarcerated or subject to other restraint or impediment. See 15 M.R.S.
2124 (requiring "present restraint or other specified impediment" as defined by
statute). Petitioner does not allege, and the Court cannot discern, any additional
restraint or impediment to which she is subject. The petition must therefore be
summarily dismissed. (App. JJ)
On October 5, 2012 Petitioner filed Petitioners Motion to Reconsider Petition
for Post-Conviction Review of AUGDC-CR-2011-512 and AUGDC-CR-2011-513 in
AUGSC-CR-2012-553. (App. II)
Petitioner also filed her Request for Discovery on the same day in AUGSCCR-2012-286 and AUGSC-CR-2012-667 to the District Attorneys office with an
extensive list of electronic evidence Petitioner was seeking to challenge probable
cause from both Augusta and Oakland police departments. (App. Y, Pg. 120a)
On October 31, 2012 Justice William Anderson denied Petitioners Motion To
Reconsider Petition For Post-Conviction Review stating, Petitioners election to pay
the fine rather than go to jail took her out of the purview of the post-conviction review
statute. (App. HH) Actus curiae neminem gravabit. An act of the court will
prejudice no one.
On February 11, 2013 Petitioner and Mr. Hainke met with the newly elected
District Attorney to discuss dismissal of all charges. After hearing Petitioners
defenses, the District Attorney and Mr. Hainke attempted to coerce Petitioner to
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
33
plead guilty to the Augusta operating after suspension and refusing to submit to
arrest charges, pay a $250 fine and perform fifty hours of community service.
Petitioner categorically rejected the plea offer and demanded a full dismissal.
On March 4, 2013 Petitioner filed her 2nd Request for Discovery reiterating
her demand to receive an extensive list of electronic and paper evidence from both
police departments which she had not received despite her first demand in 2012.
Petitioner never received several pieces of exculpatory evidence from both police
departments to challenge the officers probable cause including audios and printed
transcripts of dispatch calls in the both February and April 2012 traffic stops.
Upon Petitioners first opportunity to review some of Respondents paper
evidence in mid-March 2013, she learned for the first time the reason for the
medical suspension was incompetent to drive a motor vehicle under 29-A MRSA
2458(2)(D) and about her right to request an administrative hearing from Secretary
of State Bureau of Motor Vehicle Medical Review Section. Ignorantia juris sui non
praejudicat juri. Ignorance of one's right does not prejudice the right. Ignorantia
excusatur non juris sed facti. Ignorance of fact is excused but not ignorance of law.
On March 18, 2013, acting upon this newly discovered evidence, Petitioner
sent her first Request for Administrative Hearing (App. GG) to Bureau of Motor
Vehicles Hearing Section indicating the medical suspension was commenced
without a reasonable basis, without giving proper notices, and without following
due process. Motor Vehicles responded by saying Petitioners current suspensions
do not allow for an administrative hearing. (App. FF)
On March 28, 2013 Petitioner sent a Demand for Administrative Hearing for
Prior Administrative (Medical) Suspension (App. EE) again claiming the medical
suspension was commenced in violation of due process, without sufficient evidence
to support the suspension, and proper notices were not served prior to the effective
date of the suspension of January 5, 2010. Motor Vehicles claimed the request was
untimely because the medical suspension was terminated two years prior. (App.
DD)
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
34
explained that dismissal of Count 1 vitiates Count 2 because Count 1 allegedly gave
the officer probable cause leading to Counts 2 and 3.
Petitioner extensively explained the legal dynamics of the 2010 medical
suspension and how it triggered a series of legal events leading up to that day;
Respondent replied by offering Petitioner a one-year deferred disposition on Count 2
despite knowing Petitioner appealed the courts denial of her 3rd Motion to Dismiss
on December 5 which was still pending in the state supreme court.
Respondent exploited Petitioners legal ignorance when Mr. Hainke failed in
his legal duty by not informing Petitioner, Respondent and the court that no trial
can occur, no plea agreement can be offered, no guilty plea can be accepted and no
entry of a deferred disposition agreement can occur pursuant to MRAppP 3(b) while
Petitioners appeal was pending in the Maine Supreme Judicial Court.
Despite the courts and Respondents knowledge of Petitioners pending
appeal of denial of her 3rd Motion to Dismiss filed December 5, the court used nondisclosure to coercively persuade Petitioner to enter a conditional plea of guilty to
Count 2 under a one-year deferred disposition with agreement the Petitioner could
withdraw her guilty plea and the charge would be dismissed if Petitioner conforms
to the terms of the agreement and remains under control of the court until final
judgment on December 16, 2014. (App. O)
Interestingly, Respondent again deviated from usual course of proceedings in
deferred disposition cases by waiving all supervision fees, waiving all community
service requirements and waiving all penalties and fines against Petitioner. These
waivers leads a reasonable person to speculate about Respondents motivation to
force Petitioner to labor unwillingly under judicial control and involuntary
servitude for 365 more days.
Some elements that should be considered when reviewing the deferred
disposition agreement is that Petitioner was forced to surrender to control of the
court or Respondent for 365 more days without any remedies other than a petition
to the Supreme Court of the United States, nor did Respondent include any
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
37
statement that once Turcotte filed her notice of appeal, the court was prohibited
from taking any further action
On March 20, 2014 the Superior Court denied Petitioners Motion for
Reconsideration (App. AAA) saying the Order issued 2/11/14 was based upon the
Courts interpretation of the Law Courts Order dated 1/13/14 in which the Law
Court SUSPENDED the operation of M.R. App. P 3(b) retroactive to Dec. 5, 2013.
On April 15, 2014 the Maine Supreme Judicial Court dismissed Petitioners
appeals as interlocutory because the deferred disposition was still pending. (App. G)
On May 4, 2014 Harold Hainke, Esq. filed a Motion to Withdraw (App. E, F)
stating in part, Her other cases have been dismissed pursuant to the Deferred
Disposition Agreement. While Ms. Turcotte still opposes the position of the Superior
Court in denying her request to withdraw her agreement to the Deferred Disposition
and the Law Court in denying her appeal of that decision, there are not any matters
pending which would require immediate legal consultation.
On May 16, 2014 Petitioner filed her Judicial Notice of Non-Opposition (App.
D) to Harold Hainkes Motion to Withdraw stating in part, On December 18, 2013,
Harold Hainke said, GinA, I dont know how you did it but you did it! You got all
the charges dismissed! Throughout this entire case history, Harold Hainke has
declared that he is not my attorney and has no obligation to protect my rights.
Despite Harold Hainke repeatedly denying any attorney-client status, he has
repeatedly sent and accepted written communications from the court and knowingly
communicated with the court, Joelle Pratt and other parties about this case expressly
failing in all his legal duties. Harold Hainkes legal role has been de minimus
having had no impact on the current dismissed status
On June 2, 2014 Petitioner filed an Objection and Imperative Judicial Notice
(App. C) making known her opposition to Mr. Hainke being paid for any legal
services due to his breach of contract, attempt to coerce Petitioner into guilty pleas
and his claim that he was not required to protect Petitioners rights during the
proceedings.
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
40
On July 29, 2014 the Maine Supreme Judicial Court issued a Memorandum
of Decision (App. B) affirming Superior Courts upholding the Secretary of States
denial of Petitioners request for administrative hearing on the medical suspension.
Finally, on December 16, 2014, 1406 days after the first criminal charge was
filed in Augusta District Court in AUGDC-CR-2011-512/513, Petitioner appeared in
Kennebec County Superior Court where Count 2 of AUGSC-CR-2012-286 was
dismissed (App. A) and all conditions were released.
However, Petitioner now needs to act under MRCivP Rule 60(b) and
retroactively challenge the unlawful conviction in AUGDC-CR-2011-513 (App. RR)
for the coerced nolo contendere plea (App. OO) on July 5, 2011 which directly
resulted from the 2010 medical suspension. The conviction of AUGDC-CR-2011-513
rebuts Maine Supreme Judicial Courts contention that The record does not reflect
any civil or criminal charge related to that [medical] suspension, or that she was
otherwise affected by the suspension.
There can be no question Petitioner exhausted all remedies within the Maine
state court system and with Secretary of State in her attempt to receive a proper
hearing on the medical suspension which triggered these course of events leading to
nine criminal charges plus various civil violations.
Notwithstanding the unconstitutionality of Secretary of States actions, there
was never any suspicion of nor actual criminal conduct in any of Petitioners actions
which would have given Respondent justification for filing any criminal charges.
All charges referenced herein directly resulted from the unconstitutional
medical suspension which was basically an administrative error by Secretary of
State which grew into a multitude of violations of Petitioners rights as protected by
the Constitution, the Americans with Disabilities Act, the PAIMI Act, Civil Rights
Act and others.
Most importantly, Petitioner is a lifetime resident of Augusta Maine and not
known as a violent or dangerous individual in any way and does not have any kind
of history which would justify any aggressive actions against her by police.
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
41
However, Petitioner is well known to law enforcement for her civil outspokenness
from prior interactions and her complaints of disturbances by other tenants at her
various previous residences.
It was during those civil interactions and patrolling Petitioners neighborhood
that various Augusta police officers first took notice of the peaceful, private sign on
her private automobile which was always parked immediately adjacent to a main
road which police heavily patrol notwithstanding the numerous civil calls at
Petitioners property.
Petitioner asserts that the traffic violation automobile exceptions to the 4 th
Amendment, the licensing requirements under 29-A M.R.S. 1251(1-A), and
mandatory registration of private property under 29-A M.R.S. 351 was the
triggering factor which gave the officers assumed authority to follow, seize and
arrest Petitioner absent any evidence, facts, suspicion or belief of criminal conduct
simply because she did not have proper licensing papers or registration plates and
which allegedly gave Respondent authority to file several criminal charges against
her.
Petitioner asserts and provides evidence herein in the form of recently
passed legislation, newspaper articles, press releases and other public information
sources as shown in the Appendix Pgs. 342a-391a that automobile exceptions to the
4th Amendment have caused an evolving endemic of official abuse of the traffic
violation exceptions by police departments as well as the courts which have
prompted no less than seven (7) states to propose or enact statewide legislation
outlawing traffic citation quota systems within all police departments.
Petitioner asserts that if the original intent of the Constitution and stare
decisis et non quieta movere had been carefully honored by the Supreme Court when
applying 4th Amendment principles to all prior rulings involving de minimus traffic
violations and maintaining prohibition of all stops, searches, and seizures absent
reasonable suspicion or probable cause based on specific and articulable facts that
criminal conduct is afoot, none of the criminal charges would have been filed
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
42
against Petitioner and she would not have been held in conditions of involuntary
servitude to the court for more than 1000 days for frivolous criminal charges by use
or threat of coercion through law or the legal process.
REASONS FOR GRANTING THE PETITION
1. There are multiple questions of constitutional violations arising from the legal
issues in all companion cases herein tantamount to egregious, outrageous and
malicious conduct by government and court officials during interactions with a
known disabled individual constituting a matter of great public importance.
A. Petitioner was deprived of her freedom of speech and right to be
heard under the 1st Amendment, her right to be free from
unreasonable searches and seizures under the 4th Amendment,
her right to not incriminate herself under the 5th Amendment and
her right to due process under the 5th and 14th Amendments
caused by Secretary of States failure to serve Petitioner with a
notice of drivers license suspension and opportunity for hearing
resulting in Respondent accusing Petitioner of numerous
criminal charges.
Petitioner was deprived of multiple rights and protections under the
Constitution and other federal authorities such as the Americans with Disabilities
Act and the PAIMI Act beginning with deprivation of her right to not speak about
private medical information in 2005 when she was compelled by Secretary of State
Motor Vehicle Rules, Ch. 3 to disclose the existence, nature, severity, and treatment
of her medical condition. 42 U.S. Code 9501, 10801(b) and 10841(1)(A).
Petitioner was unable to maintain a stable mailing address with Secretary of
State nor a stable residence due to the unavailability of safe low-income disabled
housing; even when Petitioner submitted proper change of address forms with
USPS and Secretary of State there was always a high likelihood of postal delay due
to forwarding procedures or human error, therefore, Petitioners attempts to comply
with 29-A M.R.S. 1407 which requires that person shall, within 30 days, notify
the Secretary of State, in writing or by other means approved by the Secretary of
State, of the old and new addresses was a futile effort because Petitioner was
movement due to safe housing issues, the Medical Review Section further violated
Petitioners rights by failing to use an alternative reasonable means of notice by
posting public notices as required by 5 M.R.S. 9052(3) to notify Petitioner of her
need to update her address or to contact Bureau of Motor Vehicles immediately.
Medical Review Section failing to notify Petitioner of her need to update her
address and to complete a medical evaluation violated the protections of the PAIMI
Act which require services must be in a setting and under conditions that(i) are
the most supportive of such persons personal liberty; and (ii) restrict such liberty
only to the extent necessary consistent with such persons treatment needs, applicable
requirements of law, and applicable judicial orders.
Bureau of Motor Vehicles violated Petitioners right against unreasonable
seizure of her property when they suspended the drivers license on January 5, 2010
citing 29-A M.R.S. 2458(2)(D) claiming Petitioner was incompetent to drive a
motor vehicle solely because she did not receive or comply with the request for
medical evaluation. A l'impossible nul n'est tenu. No one is bound to do what is
impossible. Impossibilium nulla obligatio est. There is no obligation to perform
impossible things.
This deprivation resulted directly from her protected medical condition.
On February 10 and March 7, 2011 Petitioner was deprived of her right to be
free from unreasonable searches and seizures and her right to not incriminate
herself when Petitioner was stopped in her registered, inspected, and insured
automobile twice by the same officer both times having no suspicion or probable
cause of criminal conduct with the second stop directly resulting from a protected
medical condition and the first from a de minimus violation of a traffic control
device.
On March 7 and 8, 2011 Petitioner was deprived of due process and her
freedom to speak when she was not informed of the nature of the charges prompting
the medical suspension ab initio nor was she informed of her right to request a
hearing to give evidence of her innocence of the charge that she was incompetent to
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
45
drive a motor vehicle under 2458(2)(D) and then again on December 2, 2011 when
the court forced Petitioner to speak with the judge and pay a court fine related to
AUGDC-CR-2011-513 under threat of imprisonment.
Resulting from the unconstitutional actions previously described, Petitioner
was necessarily forced to travel with impunity without a valid drivers license which
again resulted in her unconstitutional detainment and arrest on February 16, 2012
resulting directly from exercising her freedom of speech by placing a sign on her
private automobile instead of a valid registration plate issued by the Bureau of
Motor Vehicles. The words on her private sign were the probable cause used by
the officer to justify the arrest, the ensuing criminal charges and other civil
violations. Once she was stopped on February 16, 2012 for exercising her freedom of
speech she was then threatened with arrest and was coerced to incriminate herself
in violation of the 5th Amendment when she was forced to provide her name and
other identifying information which led to police to look at her driving record which
led to several frivolous criminal charges.
On April 5, 2012 Petitioner was stopped for the innocent action of not having
a sticker with certain words (inspection sticker) upon her private automobile, being
another violation of the 1st Amendment to not speak, which was used as probable
cause by the police officer to threaten excessive force to break her car window to
effect a violent and aggressive arrest. After Petitioner left the scene in fear and
preservation of her safety, Petitioner was chased by two police officers causing her
to surrender only under public surveillance to ensure her personal safety, at which
time she was threatened with violence by firearm and then falsely imprisoned for 18
hours during which time she was deprived of her right to make a phone call to
secure her prompt release.
Petitioners right to due process and effective assistance of counsel was also
violated by all three court-appointed attorneys in early 2012 by their failure to
request a probable cause hearing or to assist Petitioner in securing a probable cause
hearing in 2012. Their failure to request a routine probable cause hearing was an
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
46
egregious dereliction of their legal duty to provide Petitioner with adequate legal
counsel which directly and proximately caused Petitioners involuntary servitude to
the court for more than 1000 days.
Petitioners third attorney, Harold Hainke, Esq. repeatedly told Petitioner
she would not get the charges dismissed at the superior court level and would need
to appeal to the Supreme Court of the United States if she wanted any justice. Mr.
Hainke also repeatedly disclaimed that he was Petitioners attorney and that he
had no legal duty to protect Petitioners rights. Petitioner interpreted these denials
by Mr. Hainke as prima facie evidence of Mr. Hainkes unwillingness to provide
effective assistance of counsel to get all the charges dismissed as Petitioner was able
to do in December 2013 and 2014 through her own diligent work and tenacity.
Beginning in August 2012 Petitioner filed her first legally precise and wellsupported motion to dismiss for violation of her rights secured by the Constitution.
The court wholly ignored this motion effectively prohibiting Petitioner from
speaking, being heard or enjoying due process and equal protection of the law in
violation of the 1st and 5th Amendments, inter alia. Petitioner wholly believes if Mr.
Hainke had submitted the motion as his own legal work under the traditional
attorney/client scheme, the motion to dismiss would have been heard in short time
and would have been given its due consideration including a full dismissal of all the
charges.
In October 2012 Petitioner requested to receive several pieces of exculpatory
evidence, both written and electronic, for both the February and April 2012 traffic
stops. Most of the requested evidence was withheld with no explicit reason for its
exclusion violating Petitioners right to due process and equal protection of the law.
In February 2013 Petitioner was again deprived of effective assistance of
counsel during a meeting with the District Attorney when Mr. Hainke attempted to
coerce Petitioner to plead guilty to the February operating after suspension and
refusing to submit to arrest charges, pay a $250 fine and perform 50 hours of
community service despite his knowledge of Petitioners innocence nunc pro tunc.
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
47
After making her second request for discovery in early 2013 and finally
receiving some paper evidence from Bureau of Motor Vehicles, Petitioner wrote 3
letters to the Hearing Unit on March 18, March 28 and April 8, 2013, requesting
she be given an administrative hearing so she could challenge the basis of the
January 5, 2010 medical suspension as statutorily required before any license
suspension can occur. Petitioner amply explained that she had exceptional reasons
for not requesting a hearing within the required 10 days because she was transient
and did not receive the 2009 medical evaluation request or notice of suspension.
All of Petitioners requests for an administrative hearing were denied as
untimely which thereby violated Petitioners freedom of speech in post-termination
procedures, right to due process and equal protection of the law, as well as
Petitioners rights under 42 U.S. Code 10801 and 10841.
Petitioners 1st and 2nd Motions to Dismiss were ignored which violated
Petitioners freedom of speech and right to due process with Mr. Hainke failing in
his 6th Amendment legal duty to assist Petitioner with presenting her defense by
intervening with the court to get proper dismissal or suppression hearings
immediately scheduled.
Directly resulting from the courts refusal to hear or grant Petitioners 1st and
2nd motions to dismiss, Petitioner was forced to file a Petition for Review of Final
Agency Action pursuant to MRCivP 80C to challenge the validity of the medical
suspension nunc pro tunc. This unnecessary delay, finally and wrongly resulting in
denial of the 80C petition on October 24, 2013 by Kennebec County Superior Court,
further violated Petitioners rights to equal protection of the law which caused
continuation of the criminal cases and her condition of involuntary servitude to the
court.
On December 3, 2013 Petitioner filed her 3rd Motion to Dismiss again citing a
multitude of constitutional violations of due process, equal protection, right to be
heard and right to speak, inter alia, which was heard and denied on December 5,
2013 by superior court Judge Marden which Petitioner immediately appealed to the
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
48
law court and notified her legal counsel, superior court and Respondent of the
appeal. Respondent again attempted to coerce Petitioner to plead guilty to a
criminal charge of operating after suspension against Petitioners right to due
process when an appeal has been properly docketed. Petitioner again categorically
rejected all plea offers and demanded a full dismissal of all charges.
Petitioner reluctantly appeared at superior court on December 18, 2013 ready
for her trial by jury and demanded to receive all exculpatory evidence as previously
requested which was again denied by Respondent again in violation of Petitioners
right to due process, inter alia. Respondent also informed Petitioner that the
arresting officer for the April 2012 arrest had died in April 2013 and was not
available to testify as to Counts 4, 5, 6 and 7 and therefore those charges were
immediately dismissed. Respondent knowingly withholding information about the
availability of material witnesses is a grave violation of court rules and
Constitutional protections. If Respondent had disclosed this information about Ofc.
Corbetts death as soon as they received it in 2013, Petitioner would not have been
held in unnecessary conditions of involuntary servitude to the court for Counts 4, 5,
6 and 7 until December 18, 2013.
Mr. Hainke again failed miserably in his legal duty to inform Petitioner of
Rule 3(b) during an extensive off-the-record conversation about the medical
suspension and the course of events thereafter with Mr. Hainke and Respondent
prior to trial on December 18. Respondent knowingly violated appellate Rule 3(b) by
strong-arming Petitioner to enter a conditional plea of guilty to Count 2 under a
deferred disposition agreement for one year subjecting Petitioner to other legal
conditions and restrictions under court control.
Petitioner was not offered any meaningful or lawful choices; her only option
was to accept the illegal deferred disposition or go to trial with minimal exculpatory
evidence.
Despite the Maine supreme court acknowledging legal prohibition of the
deferred disposition, it violated Petitioners rights even further by providing relief
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
49
from the rules pursuant to M.R.App.P 14(c) in favor of Respondent which effectively
affirmed the illegal deferred disposition contract further subjecting Petitioner to the
courts authority.
Constitutional due process requires Petitioner to receive actual notice which
requires satisfying all elements of notice pursuant to 5 M.R.S. 9052(3)
which must state,
A. A statement of the legal authority and jurisdiction under which the
proceeding is being conducted;
B. A reference to the particular substantive statutory and rule
provisions involved;
C. A short and plain statement of the nature and purpose of the
proceeding and of the matters asserted;
D. A statement of the time and place of the hearing, or the time within
which a hearing may be requested;
E. A statement of the manner and time within which evidence and
argument may be submitted to the agency for consideration, whether or not a
hearing has been set; and
F. When a hearing has been set, a statement of the manner and time
within which applications for intervention under section 9054 may be filed.
There are no facts in the record to support Appellee's claim that Ofc.
Eric DosSantos provided all elements of actual notice under 9052(3) above.
Thus, Secretary of State violated constitutional due process which Appellant
has undeniably proven by the facts and evidence in this case. (See App. I, Pg.
18a)
Finally, after serving 1807 days of involuntary servitude to the court from
January 5, 2010 until December 16, 2014, Respondent dismissed Count 2 and the
court released all bail bonds and restrictions freeing Petitioner from her legal
chains; however, Petitioners drivers license expired on December 17, 2012 while
still suspended.
Despite Petitioners meticulous legal efforts to defend herself from baseless
criminal charges, both the court and Respondent refused to read the timeline of
evidence or to follow all pertinent laws and rules of procedure subjecting Petitioner
to legal control of the court or Respondent from January 5, 2010 until the present
day.
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
50
credits rewarding her safe and legal traveling habits. The record also shows a
contradictory and illogical suspension on January 5, 2010 under 2458(2)(D)
claiming Petitioner was incompetent to drive a motor vehicle simply because she
did not receive or comply with the medical evaluation request which the record
clearly shows was returned to Respondent by the USPS. (See 29-A M.R.S. 2482(3))
Respondents actions put Petitioners life in grave legal jeopardy which
effectively restrained and secluded Petitioner by prohibiting her freedom of
movement and her right to travel independently by automobile as a direct result of
Petitioner complying with Motor Vehicle Rules, Ch. 3 and disclosing the existence of
her medical condition which was then used as a legal weapon against her.
As abundantly shown in the record, Respondents actions leaves a reasonable
person to wonder about Respondents motivations for committing the many legal
offenses against Petitioner as a direct result of Petitioners known medical
disabilities. There are very few conclusions anyone can come to after reading this
petition and multitude of legal documents in the Appendix.
C. Whether Maine Supreme Judicial Court erred in a January 13,
2014 Order when it acted under Maine Rules of Appellate
Procedure 14(c) providing relief from Appellate Rule 3(b)
knowing judicial relief would affirm an invalid contract.
After almost two years of legal maneuvering to get seven bogus criminal
charges dismissed, Petitioner successfully defeated six charges in December 2013,
but Petitioners right to equal protection of the law inter alia was again violated by
Maine supreme court when it used abusive discretion in its judicial capacity and
affirmed an invalid deferred disposition contract after providing relief from
appellate Rule 3(b) pursuant to Rule 14(c) sua sponte in order to effectuate the
intent of the parties.
Maine Code of Judicial Conduct Canon 2(A) A Judge Shall Avoid
Impropriety and the Appearance of Impropriety in All of the Judges
Activities requires, A judge shall respect and comply with the law and shall act at
all times in a manner that promotes public confidence in the integrity and
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
52
Counsel, however, can also deprive a defendant of the right to effective assistance,
simply by failing to render "adequate legal assistance," Cuyler v. Sullivan, 446 U. S.,
at 344. Id., at 345-350 (actual conflict of interest adversely affecting lawyer's
performance renders assistance ineffective).
If Mr. Hainke had provided adequate legal assistance, there is a very high
probability that all charges would have been dismissed in early/mid 2012.
E. Whether Petitioner was subjected to involuntary servitude to the
court by the use or threat of coercion through law or the legal
process in violation of the 13th Amendment.
It is absolutely clear that every official action performed in this petition was
the direct result of the mandatory drivers license being arbitrarily suspended on
January 5, 2010 for medical reasons simply because Petitioner was without a stable
residence where she could easily receive postal mail without interruption. There
also can be no question that the Medical Review Section made a unilateral,
arbitrary and uninformed decision to suspend the drivers license under
2458(2)(D) claiming Petitioner was incompetent to drive a motor vehicle without
any professional supporting opinions simply because she was never informed of her
need to complete a medical evaluation request.
It must also be clear that Petitioner had no meaningful choices or any other
lawful remedies to resolve the medical suspension or subsequent criminal charges.
Her only option was to surrender vis compulsiva to the legal control and demands of
Secretary of State and the courts during the adjudication of all these matters.
Involuntary servitude is defined as the condition of one forced to labor for pay
or not for another by coercion or imprisonment, labor is defined as work of any type,
including mental exertion and work is defined as physical and mental exertion to
attain an end. There can be no question Petitioner labored under the courts control
for the courts purposes without pay with great mental exertion to attain a
dismissal of frivolous criminal charges which were filed directly resulting from a
violation of Petitioners right to privacy of her medical information.
It must also be clear that Petitioner had no options other than to submit to
the control of the Secretary of State, the courts and Respondent while they
prosecuted these claims. In effect, the State of Maine caused all violations herein.
2. There is an unsettled area of law concerning traffic exceptions to the 4th
Amendment which allows police officers to stop walkers, bicyclists and people in
moving vehicles for civil actions which has caused rampant official abuse of
automobile exceptions triggering several state legislatures to enact statewide
prohibitions against traffic citation quotas within police departments.
F. Traffic exceptions to the 4th Amendment absent any probable
cause of criminal conduct are unconstitutional under the original
intent of the Constitution and principles of stare decisis.
Ruling case law on constitutional protections when traveling by automobile
on public roads shows a progressive erosion and relaxation of historic prohibitions
against warrantless and unreasonable searches and seizures in favor of the states
claim that its interests in officer and public safety are paramount to the privacy
interests and constitutional protections of citizens. Prior to the nineteenth century,
courts generally held the public roadways were open to all users without regard to
the travelers' methods or means of transport. Licenses or other indicia of
governmental permission were thought unnecessary or even violative of
constitutional rights. [City of Chicago v. Banker, 112 Ill. App. 94 (1904); City of
Chicago v. Collins, 51 N.E. 907 (Ill. 1898); Swift v. City of Topeka, 23 P. 1075 (Kan.
1890)] But widespread disdain and fear of the automobile led twentieth century
policymakers to push aside these long-standing constitutional barriers in order to
regulate motorized driving. This new regulatory [*247] approach was justified on
the grounds that motor vehicles were too dangerous to operate unlicensed and that
traffic injuries were increasingly on the rise. [See Dr. Roots, CONSTITUTIONAL
LAW]
The 4th Amendment traffic exceptions have been the cause for wild official
abuse for the sole purpose of increasing local tax revenue through the payment of
These stops may now result from an officers reasonably mistaken belief of a traffic
violation as this court overwhelmingly decided in Heien v. North Carolina 574 U. S.
__ (2014). Justice Sotomayor was the sole dissenter fearing official abuse by police,
as we do now have in this country. Departing from this tradition means further
eroding the Fourth Amendment's protection of civil liberties in a context where that
protection has already been worn down. Traffic stops like those at issue here can be
"annoying, frightening, and perhaps humiliating." Terry, 392 U.S., at 25, 88 S.Ct.
1868; see Delaware v. Prouse, 440 U.S. 648, 657, 99 S.Ct. 1391, 59 L.Ed.2d 660
(1979).
Since police officers are purportedly no longer required to show specific and
articulable facts supporting probable cause of criminal conduct due to traffic
exceptions to the 4th Amendment, several police departments now order routine
issuance of traffic citations for the specific purpose of increasing local tax revenue
through payment of traffic citations. This taxation scheme is now being justified by
claiming the states interests in public and police officers safety by conducting a
brief investigatory stop outweigh the publics constitutional rights of privacy and
freedom of enfettered travel.
Some police departments are justifying traffic citation quota systems by
calling them a benchmarking tool for measuring individual patrol officers eligibility
for promotions and overtime based on their performance evidenced by the number
of traffic tickets and arrests they make. Some police officers who refuse to comply
with quota mandates are being harassed, disciplined and even terminated for poor
performance and insubordination. This petition will show that some of those lawful
officers have sued their departments for enforcement of illegal traffic citation quotas
and have been compensated for harassment which resulted from the officers refusal
to enforce those illegal policies.
As this court indicated in Boyd v. United States, 116 US 616 (1886), the
unreasonable searches and seizures condemned in the Fourth Amendment are
almost always made for the purpose of compelling a man to give evidence against
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
58
intended, and its very purpose was, to prevent experimentation with the fundamental
rights of the individual. Id.
A walker, an equestrian, or bicyclist in no way needs a drivers license to
travel over public roads nor is it acceptable practice for police officers to issue traffic
tickets to people traveling by non-motorized means of travel. Moreover, it is simply
unlawful for a police officer to perform a brief investigatory stop on a walker,
bicyclist, or equestrian to inquire about their license to travel absent reasonable
suspicion or probable cause of criminal conduct nor would the traveler be required
to comply with the officers demand under the protections of the 4th and 5th
Amendments.
According to Pew Research Center, as far back as the 1970s, public surveys
show Americans have historically and overwhelmingly considered the automobile as
fundamental to their safety, health, welfare, life, liberty and pursuit of happiness,
regardless of socioeconomic status. Use of the automobile is more widespread within
certain geographic areas of the country which are too cold, mountainous, or vast to
travel by foot or by other non-motorized means of travel and, contrarily, there are
some metropolitan areas where automobile ownership is not as widespread due to
snug living spaces and high costs of using, storing and insuring the vehicles, such as
in New York City where 2013 census data shows 8,405,837 residents lived in New
York City with only 223,089 automobiles registered for private operation on public
roads. In contrast, 2013 census data for the state of Maine shows a state population
of 1,328,702 people (at least 20% being children under the age of 16) who have
registered 1,001,750 automobiles for private use on public roads.
Notwithstanding the convenience and speed by which one can travel by
automobile, according to the Pew Research Center, eighty-six percent (86%) of
Americans consider automobile travel to be an absolute necessity of life in most
parts of the United States, As has been the case since the question was first asked in
the 1970s, an overwhelmingly number of Americans consider a car a necessity in life.
Fully 86% say a car is a necessity, compared with just 14% who say a car is a luxury
Gina Turcotte v. State of Maine, Petition for Writ of Certiorari
60
you could live without. In fact, asked to describe a list of 12 everyday consumer
products as luxuries or necessities, more Americans describe a car as a necessity than
any other item. This was also the case in Pew Research surveys conducted in 2009
and 2006, as well as in surveys conducted by Roper in the 1980s and 1970s. A Car
is a Necessity as found here: http://www.pewresearch.org/daily-number/a-car-is-anecessity/
Petitioner urges the Supreme Court to review with great care the damage to
the fabric of our 4th Amendment protections as a result of the traffic exceptions and
how people are now prohibited from freely traveling in private automobiles without
surrendering to the statutory mandate under 29-A M.R.S. 351 and 1251 to apply
for, obtain and maintain a drivers license and registration under threat of arrest,
imprisonment and coercion by use of the legal process.
It has been said that the rights to life, liberty, property, and the equal
protection of the law are so related that the deprivation of any one of those separate
and independent rights may lessen or extinguish the value of the other three. The
14th Amendment recognizes liberty and property as coexistent and debars the states
from any unwarranted interference with either." 11 Am Jur, Constitutional Law
328, Pg. 1132
CONCLUSION
For the foregoing reasons, the petition for writ of certiorari should be
granted.
March 16, 2015
Respectfully submitted,
No. _____________
IN THE
APPENDIX, VOLUME I
___________________________________________
Table of Contents
Table of Contents ............................................................................................................ i
APPENDIX A ................................................................................................................. 1
Dismissal ................................................................................................................. 1
APPENDIX B ................................................................................................................. 2
Memorandum of Decision ....................................................................................... 2
APPENDIX C ................................................................................................................. 4
Objection and Imperative Judicial Notice ............................................................. 4
APPENDIX D ................................................................................................................. 6
Judicial Notice of Non-Opposition to Harold Hainkes Motion to
Withdraw .......................................................................................................... 6
APPENDIX E ............................................................................................................... 10
Order Regarding Motion to Withdraw ................................................................. 10
APPENDIX F ............................................................................................................... 11
Motion to Withdraw .............................................................................................. 11
APPENDIX G ............................................................................................................... 12
Order
12
APPENDIX H............................................................................................................... 13
Imperative Judicial Notice Violation Of Maine Code Of Judicial
Conduct........................................................................................................... 13
APPENDIX I ................................................................................................................ 15
Reply Brief for Appellant ...................................................................................... 15
APPENDIX J................................................................................................................ 20
Defendant's Rescission Of Agreement Under Deferred Disposition ................... 20
APPENDIX K ............................................................................................................... 22
Defendant's 4th Motion to Dismiss ...................................................................... 22
APPENDIX L ............................................................................................................... 23
Appeal Brief for Appellant .................................................................................... 23
APPENDIX M .............................................................................................................. 35
Order
35
APPENDIX N............................................................................................................... 36
Dismissal ............................................................................................................... 36
APPENDIX O ............................................................................................................... 37
Agreement Of Defendant And Order Deferring Disposition ............................... 37
GinA v. State of Maine, Appendix
i
APPENDIX P ............................................................................................................... 39
Motion To Dismiss Count 2 Under Federal Rules Of Evidence 410(a)(2) .......... 39
APPENDIX Q ............................................................................................................... 41
Plea Offer............................................................................................................... 41
APPENDIX R ............................................................................................................... 42
3RD Motion To Dismiss With Prejudice For Discovery And Due Process
Violations ........................................................................................................ 42
APPENDIX S ............................................................................................................... 46
Order on Rule 80C Appeal .................................................................................... 46
APPENDIX T ............................................................................................................... 50
Petitioner's Reply Brief Rule 80C......................................................................... 50
APPENDIX U............................................................................................................... 58
Respondent's Brief ................................................................................................ 58
APPENDIX V ............................................................................................................... 62
Rule 80C Petition Brief for Appellant .................................................................. 62
APPENDIX W ............................................................................................................ 103
Order
103
LC 34 2781........................................................... 309
CONSTITUTIONAL PROVISIONS
Maine Constitution, Article 1, Section 5 ................................................................... 107
Maine Constitution, Article 1, Section 6-A ......................................................... 85, 206
United States Constitution, Amendment I ............................................................... 285
United States Constitution, Amendment IIVX ........................................................ 285
United States Constitution, Amendment V.............................................................. 285
United States Constitution, Article IV, Section 2 .................................................... 285
United States Constitution, Article VI ..................................................................... 285
STATUTES
11 M.R.S. 1-1304 ....................................................................................................... 20
15 M.R.S. 2121-2132 .................................................................................... 174, 177
15 M.R.S. 2124 ................................................................................................ 174, 177
15 M.R.S. 2124(3)(A) ............................................................................................... 175
17 M.R.S. 2931 .................................................................................. 98, 109, 111, 190
17-A M.R.S. 12 ................................................................................................ 183, 185
17-A M.R.S. 1348 .............................................................................................. 37, 297
17-A M.R.S. 1348-A ..................................................................................... 12, 35, 297
17-A M.R.S. 1348-C ............................................................................................. 12, 35
17-A M.R.S. 2 .......................................................................................................... 180
17-A M.R.S. 2(19) .............................................................................................. 97, 189
17-A M.R.S. 2(20) .............................................................................................. 98, 189
17-A M.R.S. 751-A ........................................................................................... 183, 184
17-A M.R.S. 751-B ........................................................................................... 183, 184
18 U.S. Code 1589 ................................................................................................... 284
18 U.S. Code 31(a) (10) ....................................................................... 53, 78, 186, 284
18 U.S. Code 31(a) (6) ......................................................................... 53, 78, 186, 284
23 U.S. Code 154(a) ................................................................................................. 285
23 U.S. Code 159(c) ................................................................................................. 285
29-A M.R.S. 101(42) .......................................................................................... 79, 186
29-A M.R.S. 101(50) .......................................................................................... 79, 186
29-A M.R.S. 101(59) .......................................................................................... 79, 186
29-A M.R.S. 101(75) .......................................................................................... 79, 186
29-A M.R.S. 101(91) .......................................................................................... 79, 186
29-A M.R.S. 103 ...................................................................................................... 298
29-A M.R.S. 104 ...................................................................................................... 298
29-A M.R.S. 105 ...................................................................................................... 298
29-A M.R.S. 112 ...................................................................................... 162, 170, 299
29-A M.R.S. 113 ...................................................................................................... 299
29-A M.R.S. 1251 .........................................51, 53, 54, 55, 64, 77, 85, 93, 97, 99, 300
29-A M.R.S. 1251(1) .................................................................................................. 85
GinA v. State of Maine, Appendix
vi
christianity ................................................................................................................... 74
church ........................................................................................................................... 74
conscience ..................................................................................................................... 74
constitution .................................................................................................................. 74
corpus ........................................................................................................................... 75
deed poll ....................................................................................................................... 75
DEFINITIONS ............................................................................................................. 74
doctrine......................................................................................................................... 75
driver ...................................................................................................................... 57, 75
driver's license ............................................................................................................. 75
driving .......................................................................................................................... 75
ecclesiastical................................................................................................................. 75
fee simple ..................................................................................................................... 75
freehold......................................................................................................................... 75
incompetency................................................................................................................ 35
Indefeasible .................................................................................................................. 75
Independent ................................................................................................................. 75
Institution .................................................................................................................... 75
justice ........................................................................................................................... 75
knowingly ..................................................................................................................... 74
liberty ........................................................................................................................... 75
license ............................................................................................................. 76, 86, 198
motor vehicle .............................................................................................. 59, 60, 86, 87
natural liberty .............................................................................................................. 75
operate .......................................................................................................................... 76
organization ....................................................................................................... 105, 197
owner .................................................................................................................... 87, 194
person ................................................................................................................. 106, 197
private morality ........................................................................................................... 76
privilege........................................................................................................................ 76
public ............................................................................................................................ 76
public servant............................................................................................................. 188
public way ............................................................................................................ 87, 194
punishment .................................................................................................................. 76
punitive ........................................................................................................................ 76
religion ......................................................................................................................... 76
religious liberty ............................................................................................................ 76
remedial ....................................................................................................................... 77
secta .............................................................................................................................. 77
secular .......................................................................................................................... 77
sentiment ..................................................................................................................... 77
spiritual ........................................................................................................................ 77
street or highway ................................................................................................. 87, 194
used for commercial purposes ..................................................................................... 59
GinA v. State of Maine, Appendix
x
Rauter v. U.S., 871 F.2d 693, 697 (7th Cir. 1989) .................................................... 162
Rios v. United States, 364 US 253 ............................................................................ 212
Shapiro v Thompson, 394 U.S. 618 (1969) ................................................ 107, 126, 198
Shuttlesworth v. Birmingham (1969) 394 US 147 ........................................... 126, 212
Smith v. Allwright, 321 US 649 - Supreme Court 1944 ..................................... 89, 210
Smith v. Hannaford Bros. Co., 2008 ME 8 ................................................................... 3
State v. Cloukey, 486 A. 2d 143- Me: Supreme Judicial Court 1985 ....................... 214
State v. Daniel Whitney, 2012 ME 105- Me: Supreme Judicial Court 2012 ........... 218
State v. Granville, 336 A.2d 861, 863 (Me.1975) ........................................................ 95
State v. Gulick, 2000 ME 170 .................................................................................... 216
State v. Harris, 1999 ME 80 ........................................................................................ 73
State v. Huntley, 676 A.2d 501, 503 (Me. 1996) ................................................... 13, 39
State v. Kovtuschenko, 521 A.2d 718, 719 (Me. 1987) ............................................... 54
State v. Patterson, 868 A. 2d 188- Me: Supreme Judicial Court 2005 .................... 216
State v. Ronald A. LaPlante, 26 A. 3d 337- Me: Supreme Judicial Court 2011 ..... 216,
218
State v. Rowe, 453 A.2d 134, 136 (Me. 1982)............................................................ 121
State v. Tayman, 2008 ME 177 ................................................................................... 54
Strickland v. Washington, 466 U.S. 668 ................................................................... 162
Struck v. Hackett, 668 A.2d 411, 417 (Me.1995) ........................................................ 73
Taylor v. Smith, 140 Va. 217 ..................................................................................... 209
Terry v. Ohio, 392 US 1 ..................................................................... 211, 213, 214, 215
Thacker v. Konover Dev. Corp., 2003 ME 30 ............................................................. 53
Thompson v. Smith, 155 Va. 367 ........................................................................ 90, 208
Union Pac. R. Co. v. Botsford, 141 U.S. 250 ............................................................. 212
United States v. Agurs, 427 U.S. 97 ......................................................... 159, 160, 162
United States v. Bagley, 473 U.S. 667 .............................................................. 160, 162
United States v. Brignoni-Ponce, 422 U. S. 873 ....................................... 125, 213, 215
United States v. Cortez, 449 U.S. 411 .............................................................. 125, 215
United States v. Di Re, 332 US 581 .......................................................................... 212
United States v. Guest, 383 US 745 - Supreme Court 1966 .............................. 92, 210
United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir.1989) .......... 215
United States v. Marshall, 109 F.3d 94,97 (1st Cir. 1997) .............................. 160, 161
United States v. Mendenhall, 446 US 544 ....................................................... 214, 216
United States v. Peters, 5 Cranch 115, 136 .............................................................. 210
United States v. Ramirez-Sandoval, 872 F.2d 1392, 1395 (9th Cir.1989) .............. 215
United States v. Robert L., 874 F.2d 701, 703 (9th Cir.1989) ................................. 125
United States v. Salinas, 940 F.2d 392 ..................................................................... 125
United States v. Sokolow, 490 US 1.................................................................. 214, 215
United States v. Thomas, 863 F.2d 622, 625 (9th Cir.1988) .................................... 125
United States v. Valenzuela-Bernal, 458 U.S. 858 .................................................. 159
US v. Salinas, 940 F. 2d 392- Court of Appeals, 9th Circuit 1991 .......................... 215
Weatherford v. Bursey, 429 U.S. 545........................................................................ 161
GinA v. State of Maine, Appendix
xiii
APPENDIX A
STATE OF MAINE
SUPERIOR COURT
KENNEBEC, ss.
AUGSC-CR-2012-00286
STATE OF MAINE
Plaintiff
v.
GINA LYNN TURCOTTE
Defendant
Dismissal
(M.R.Crim.P 48(a))
Pursuant to Rule 48(a) of the Maine Rules of Criminal Procedure the District
Attorney for Prosecutorial District 4 hereby dismisses the indictment, information,
complaint or Count(s) 2 thereof against the defendant for the following reasons:
8. Other:
Date: 12/16/14
APPENDIX B
MAINE SUPREME JUDICIAL COURT
Reporter of Decisions
Decision No. Mem 14-103
Docket No. Ken-13-514
GINA L. TURCOTTE
v.
SECRETARY OF STATE
Submitted on Briefs July 1, 2014
Decided July 29, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, and GORMAN,
JJ.
Memorandum of Decision
Gina L. Turcotte appeals from a judgment of the Superior Court (Kennebec
County, Murphy, J.) affirming the Secretary of State's denial of her petition for
review as untimely. Turcotte's license was suspended by the Secretary of State,
effective January 5, 2010, when Turcotte failed to respond to a notice of suspension
related to a medical condition. Turcotte argues that she did not receive the
suspension notice in the mail because she had not updated her address and that
she, therefore, has a continuing right to be heard. In 2011, Turcotte was stopped by
a police officer and informed of the suspension. The following day, she provided
medical documentation to the Secretary of State, and her license was immediately
reinstated. The record does not reflect any civil or criminal charge related to that
suspension, or that she was otherwise affected by the suspension. In March of 2013,
more than two years after she personally learned of the suspension, Turcotte
requested an administrative hearing to challenge the January 2010 suspension. The
Secretary of State determined that the request was untimely, the Superior Court
affirmed that determination, and we affirm the determination as well.1
The entry is: Judgment affirmed.
On the briefs:
Gina Turcotte, pro se appellant
Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty.
Gen., Office of Attorney General, Augusta, for appellee Secretary of State
Kennebec County Superior Court docket number AP-2013-17
GinA v. State of Maine, Appendix
2a
Moreover, the issue presented here could be regarded as moot because, within
twenty-four hours of Turcotte's report that her license was improperly suspended,
the Secretary remedied the situation by restoring Turcotte's license and deleting
from her record the failure to comply with the Secretary's request for medical
documentation. See Clark v. Hancock Cnty. Comm'rs, 2014 ME 33, ~ 11, 87 A.3d
712; see also Smith v. Hannaford Bros. Co., 2008 ME 8, ~ 8, 940 A.2d 1079
(recognizing three exceptions to the mootness doctrine, none of which are applicable
here).
1
APPENDIX C
STATE OF MAINE
KENNEBEC, ss
DOCKET NO. AUGSC-CR-2012-286
STATE OF MAINE
PLAINTIFF
v
GINA TURCOTTE
DEFENDANT
*
*
*
*
*
APPENDIX D
STATE OF MAINE
KENNEBEC, ss
DOCKET NO. AUGSC-CR-2012-286
STATE OF MAINE
PLAINTIFF
v
GINA TURCOTTE
DEFENDANT
*
*
*
*
*
APPENDIX E
State of Maine
Kennebec, ss
Superior Court
Criminal Action
Doc. No. CR-12-286
State of Maine
v.
Gina Turcotte,
Defendant
Order Regarding Motion to Withdraw
After review of Harold J. Hainkes Motion to Withdraw as Attorney Advisor
for the above named Defendant, the Court hereby grants the withdrawal of Counsel
and because the State is not seeking jail at the end of the deferred disposition, Ms.
Turcotte is no longer entitled to an attorney or attorney advisor at State expense.
Ms. Turcotte, as all defendants, has the right to hire an attorney to assist her.
Dated: _________
____________________________________
Justice, Superior Court
State of Maine
Kennebec, ss
State of Maine
v.
Gina Turcotte,
Defendant
APPENDIX F
Superior Court
Criminal Action
Doc. No. CR-12-286
Motion to Withdraw
NOW COMES, Harold J. Hainke, Esq., Attorney Advisor for the above named
Defendant and Respectfully Requests that this Honorable Court grant his
withdrawal from his role in this case.
The undersigned was appointed in this case on May 21, 2012, after two other
attorneys had been fired by Ms. Turcotte. Ms. Turcotte is on a Deferred disposition
and does not have any matters pending in the Superior Court. Her other cases have
been dismissed pursuant to the Deferred Disposition Agreement. While Ms.
Turcotte still opposes the position of the Superior Court in denying her request to
withdraw her agreement to the Deferred Disposition and the Law Court in denying
her appeal of that decision, there are not any matters pending which would require
immediate legal consultation. Therefore, withdrawal can be accomplished without
material adverse effect on the interests of the client. [M. R. Prof. Conduct
1.16(b)(1)].
A lawyer may withdraw from representation when the representation has
been rendered unreasonably difficult by the client. [M. R. Prof. Conduct 1.16(6)]. In
this case, Ms. Turcotte wrote in an email message that she would sue the
undersigned in Federal Court if certain actions were not taken. Being threatened by
Ms. Turcotte makes it unreasonably difficult for me to continue to be available to
consult with her.
Further, it may be that even if Ms. Turcotte were to get the bad result on her
Deferred Disposition, that the Office of the District Attorney may not request jail
and therefore Ms. Turcotte may not be eligible for legal advice at state expense.
Therefore, the undersigned respectfully requests that withdrawal be granted.
Dated: May 4, 2014
_______________________________
Harold J. Hainke, Esq.
The attached document was served upon the parties listed below by placing a
photocopy of the document in the U.S. Mail, first class postage prepaid with the
addresses listed below:
Gina L. Turcotte
Joelle S. Pratt, Esq.
32 Court St. Apt. 1
Office of the District Attorney
Augusta ME 04330
95 State Street
Augusta ME 04330
Dated: May 4, 2014
_________________________
Harold J. Hainke, Esq.
GinA v. State of Maine, Appendix
11a
APPENDIX G
STATE OF MAINE
State of Maine
v.
Gina Lynn Turcotte
Order
On March 10, 2014, Gina Lynn Turcotte filed three notices of appeal from two
orders of the Superior Court: one entered on December 5, 2013, denying her motion
to dismiss the charges against her, and one entered on February 21, 2014, denying
another motion to dismiss and a motion to rescind the deferred-disposition
agreement. On December 18, 2013, Turcotte entered a guilty plea on one of the
seven counts against her, and the State dismissed the remaining counts. The court
entered a deferred disposition the same day.
As this Court explained in dismissing Turcotte's last appeal from the same
matter, Law Court docket number Ken-14-18, because the judgment of conviction
has not yet been entered, 17-A M.R.S. 1348-A (2013), Turcotte's appeal is
interlocutory. In addition, except for conditional guilty pleas, M.R.Crim.P.11 (a)(2),
there is no right to a direct appeal from a guilty plea in a criminal case except for
claims that the court lacked jurisdiction or the punishment was illegal or cruel or
unusual. State v. Huntley, 676 A.2d 501, 503 (Me. 1996). Furthermore, Turcotte, by
agreeing to the deferred disposition, is precluded from attacking it, unless she is
found to have violated it and is later sentenced for the underlying crime. 17-A
M.R.S. 1348-C (2013).
It is therefore ORDERED that Turcotte's appeal is DISMISSED as interlocutory.
Dated: April 15, 2014
SUPERIOR COURT
KENNEBEC, ss.
AUGSC-CR-2012-00286
APPENDIX H
STATE OF MAINE
STATE OF MAINE
Plaintiff
v
GINA LYNN TURCOTTE
Defendant
Imperative Judicial Notice Violation Of Maine Code Of Judicial Conduct
NOW COMES DEFENDANT, GINA LYNN TURCOTTE, who gives
Imperative Judicial Notice to Judge Michaela Murphy and the court that egregious
violations to court rules have been knowingly committed by Judge Michaela
Murphy causing grave injury to this court's appearance of impartiality in violation
of Canons 1, 2 and 3 of the Maine Code of Judicial Conduct, to the integrity of the
court, and to the fairness of our judicial process.
Judge Murphy's actions have perpetuated and are continuing to cause
permanent injury to DEFENDANT's life, liberty and pursuit of happiness as
protected and guaranteed by the Bill of Rights and Maine Constitution of 1820.
This court knows and the record clearly reflects this frivolous action
commenced in February 2012 resulting from a de minimus infraction and unproven
allegations of medical incompetency which is being reviewed by the Law Court
under KEN-13-514.
This court knows there is a high probability of due process violations by
DMV.
This court knows PLAINTIFF failed to provide exculpatory evidence to
DEFENDANT as required by court rules.
This court knows DEFENDANT filed an interlocutory appeal under KEN-1418 on December 5, 2013 challenging J. Marden's denial of DEFENDANT's 3rd
Motion to Dismiss.
This court knows MRAppP 3(b) says "The trial court shall take no further
action pending disposition of the appeal by the Law Court."
This court knows it was prohibited from accepting any guilty plea or entering
any deferred disposition agreement (contract) with DEFENDANT.
This court knows all contracts are governed by Title 11 which requires
absolute disclosure and good faith from all parties, nunc pro tunc.
This court knows PLAINTIFF dismissed Counts 1, 3, 4, 5, 6, 7 and
fraudulently solicited a deferred disposition contract for Count 2 on December 18,
2013.
This court knows PLAINTIFF had no authority to offer such an agreement.
GinA v. State of Maine, Appendix
13a
This court knows it was prohibited by MRAppP 3(b) from taking any further
action until the law court made its determination on DEFENDANT's December 5th
appeal.
DEFENDANT's agreement to the deferred disposition was solicited
fraudulently.
This court's actions are equivalent to fraudulent nondisclosure.
This Imperative Judicial Notice is given on this date in Augusta, Maine.
Dated: March 12, 2014
CERTIFICATE OF SERVICE
This document was delivered by hand upon the District Attorney at the Office of the
District Attorney at 95 State Street Augusta, Maine on this day.
Dated: March 12, 2014
APPENDIX I
MAINE SUPREME JUDICIAL COURT
SITTING AS THE LAW COURT
KEN-13-514
GINA TURCOTTE
APPELLANT
v.
SECRETARY OF STATE
APPELLEE
Reply Brief for Appellant
Gina Turcotte
APPELLANT
32 Court St, Apt 1
Augusta, Maine
TABLE OF CONTENTS
TABLE OF AUTHORITIES .........................................................................................2
STANDARD OF REVIEW ............................................................................................3
REPLY BRIEF FOR APPELLANT ..............................................................................3
1. APPELLEE FAILED TO PROVE THAT FAILURE TO FILE A MEDICAL
EVALUATION EQUALS INCOMPETENCE TO DRIVE A MOTOR VEHICLE.
CONCLUSION ...............................................................................................................8
CERTIFICATE OF SERVICE .....................................................................................11
TABLE OF AUTHORITIES
CONSTITUTION
United States Constitution, All Pertinent Due Process Clauses
Maine Constitution, All Pertinent Due Process Clauses
CASES
McPherson Timberlands, Inc. v. Unemployment Ins. Comm'n, 1998 ME 177
STATUTES
5 M.R.S. 9052(3)
5 M.R.S. 10003
5 M.R.S. 10004(3)
5 M.R.S. 11007(4)(C)(4)-(6)
29-A M.R.S. 1258(5)
GinA v. State of Maine, Appendix
15a
STANDARD OF REVIEW
The Court may only reverse or modify an administrative agency's decision if
it is based upon "bias or error of law", is "unsupported by substantial evidence on
the whole record", is "arbitrary and capricious", or involves an "abuse of discretion"
by the agency. 5 M.R.S. 11007(4)(C)(4)-(6). According to the Law Court, the power
to review decisions of the Secretary of State is confined to an examination of
"whether the Commission correctly applied the law and whether its fact findings are
supported by any competent evidence." McPherson Timberlands, Inc. v.
Unemployment Ins. Comm'n, 1998 ME 177, ~ 6,714 A.2d 818, 820.
REPLY BRIEF FOR APPELLANT
1. APPELLEE FAILED TO PROVE THAT FAILURE TO FILE A MEDICAL
EVALUATION EQUALS INCOMPETENCE TO DRIVE A MOTOR VEHICLE.
The Secretary of State repeatedly indicates they "mailed a notice of
suspension and opportunity for hearing to the last known address" but they fail to
disclose that both of those notices were returned to them by the USPS thereby
nullifying any claims that actual notice of the medical evaluation request or notice
of suspension were successfully served.
Judge Murphy of Kennebec County Superior Court improperly concluded in
the October 24, 2013 Order that "actual notice was given to Turcotte by a law
enforcement officer, who during a traffic stop, personally informed Turcotte that her
driver's license had been suspended" although having no evidence that Ofc.
DosSantos informed Appellant of the legal authority and jurisdiction under which
the proceeding would be conducted, a reference to the particular substantive
statutory and rule provisions involved, a short and plain statement of the nature
and purpose of the proceeding and of the matters asserted, a statement of the time
and place of the hearing, or the time within which a hearing may be requested, a
statement of the manner and time within which evidence and argument may be
submitted to the agency for consideration, whether or not a hearing had been set,
and when a hearing had been set, a statement of the manner and time within which
applications for intervention under section 9054 may be filed.
The Superior Court's determination that actual notice was properly served is
a reversible error which rises to the level of a question of law which is reviewable by
a federal court of appeals.
29-A M.R.S. 2482(3) indisputably specifies, "The notice is deemed received 3
days after mailing, unless returned by postal authorities."
The Secretary of State is empowered to take unilateral administrative action
without a hearing when there are concerns about public health or safety and as long
as that suspension does not continue for more than 30 days pursuant to 5 M.R.S.
10004(3), "The health or physical safety of a person or the continued well-being of a
GinA v. State of Maine, Appendix
16a
pursuant to this subchapter may be suspended until the individual complies with the
request."
Initially, in the January 5th letter, the Secretary of State indicates that
"failure to file a medical evaluation request" will result in indefinite suspension for
"incompetence to drive a motor vehicle" pursuant to 29-A M.R.S. 2458(2)(D) even
though they could have properly applied 29-A M.R.S. 1258(5) or 5 M.R.S.
10004(3) instead.
In fact, the Secretary of State has made no mention whatsoever of 29-A
M.R.S. 1258(5) in support of their indefinite suspension for failure to comply with
the medical evaluation request; instead, Secretary of State has claimed but utterly
failed to provide evidence of incompetence to drive a motor vehicle under 29-A
M.R.S. 2458(2)(D).
If Secretary of State wanted Appellant to have actual notice of the request for
medical evaluation, they should have fully complied with 5 M.R.S. 9052(3) and
posted public notices in local publications expecting Appellant or someone who
knows Appellant would see the public notice and whereby Appellant could have,
and would have, promptly complied with the request for medical evaluation without
the need for an arbitrary and abusive suspension. This public notice could have also
served as Appellee's irrefutable proof of due process because they would now be able
to go into the newspaper archives to show overwhelming proof of public notice
publication satisfying all elements of notice pursuant to 5 M.R.S. 9052(3) which
must state,
A. A statement of the legal authority and jurisdiction under which the
proceeding is being conducted;
B. A reference to the particular substantive statutory and rule provisions
involved;
C. A short and plain statement of the nature and purpose of the proceeding
and of the matters asserted;
D. A statement of the time and place of the hearing, or the time within which a
hearing may be requested;
E. A statement of the manner and time within which evidence and argument
may be submitted to the agency for consideration, whether or not a hearing
has been set; and
F. When a hearing has been set, a statement of the manner and time within
which applications for intervention under section 9054 may be filed.
There are no facts in the record to support Appellee's claim that Ofc. Eric
DosSantos provided all elements of actual notice under 9052(3) above. Thus,
Secretary of State violated constitutional due process which Appellant has
undeniably proven by the facts and evidence in this case.
Again, the Superior Court's determination that actual notice was properly
served is a reversible error which rises to the level of a question of law which is
reviewable by a federal court of appeals.
Presuming theoretically that Appellant received the 2010 suspension letter
and immediately requested an administrative hearing within the rules, there is no
GinA v. State of Maine, Appendix
18a
APPENDIX J
STATE OF MAINE
SUPERIOR COURT
KENNEBEC, ss.
AUGSC-CR-2012-00286
STATE OF MAINE
Plaintiff
v
GINA LYNN TURCOTTE
Defendant
17) The law court appeal was denied on January 13, 2014 because Defendant
unwittingly accepted Plaintiffs illicit deferred disposition contract.
18) The law court stated in KEN-14-18, "Once Turcotte filed her notice of appeal, the
court was prohibited from taking any further action, including accepting the
guilty plea or entering the deferred disposition. M.R.App.P. 3(b)"
19) The law court wrongly assumed "the intent of the parties" at the time Defendant
entered the deferred disposition contract.
20) Defendant always asserted her intent to have all charges dismissed nunc pro
tunc.
21) Plaintiff did not act in good faith when offering a deferred disposition.
22) Plaintiff was prohibited from signing any agreement with Defendant.
23) Plaintiff and Defendant are both required to know and obey all rules of court.
24) Superior Court violated M.R.App.P. 3(b) by accepting the deferred disposition.
25) Plaintiffs actions are equivalent to fraudulent nondisclosure.
26) Plaintiff has blatantly violated Defendant's due process rights nunc pro tunc.
27) Plaintiffs actions justify dismissal of all charges with disciplinary sanctions.
28) Plaintiffs actions justify redemption and remedial compensation for Defendant.
WHEREFORE, Defendant RESCINDS the agreement under deferred disposition for
fraudulent nondisclosure nunc pro tunc and demands redemption and damages.
Dated: January 29, 2014
SUPERIOR COURT
KENNEBEC, ss.
AUGSC-CR-2012-00286
APPENDIX K
STATE OF MAINE
STATE OF MAINE
Plaintiff
v
GINA LYNN TURCOTTE
Defendant
Defendant's 4th Motion to Dismiss
NOW COMES DEFENDANT, GINA LYNN TURCOTTE, and moves this court to
dismiss all charges with prejudice for the following reasons:
1) Defendant has always maintained her absolute innocence nunc pro tunc.
2) Plaintiff has never had sufficient evidence to prove Defendant's guilt.
3) Plaintiff has repeatedly violated Defendant's right to a speedy trial, to receive
all exculpatory evidence, right to due process, inter alia.
4) Defendant's 3rd Motion to Dismiss was improperly denied on December 5, 2013;
5) Defendant filed a notice of appeal from that order on that day under KEN-1418.
6) Defendant properly and immediately informed Plaintiff of KEN-14-18.
7) Pursuant to M.R.App.P. 3(b), "The trial court shall take no further action
pending disposition of the appeal by the Law Court."
8) M.R.App.P. 3(b) required all trial activities to be suspended thus prohibiting a
deferred disposition agreement or accepting any guilty plea from Defendant.
9) Defendant was present in court and prepared for trial on December 18, 2013
(which was also prohibited by M.R.App.P 3(b)) when Plaintiff announced their
willful dismissal of Counts 1, 3, 4, 5, 6, and 7.
10) Plaintiff illicitly offered dismissal of Count 2 under a one-year deferred
disposition.
11) M.R.App.P. 3(b) prohibits Plaintiff from moving forward with any trial activities
and offering any agreement to Defendant therefore Plaintiff did not act in good
faith when offering a deferred disposition.
12) Defendant's agreement to the deferred disposition was solicited fraudulently by
Plaintiff and is in fact null and void nunc pro tunc.
13) Plaintiffs actions are equivalent to fraudulent nondisclosure justifying
disciplinary sanctions with dismissal of all charges plus remedial compensation
for Defendant.
WHEREFORE, Defendant demands dismissal of all charges plus remedial
compensation.
Dated: January 29, 2014
GINA LYNN TURCOTTE
GinA v. State of Maine, Appendix
22a
APPENDIX L
MAINE SUPREME JUDICIAL COURT
SITTING AS THE LAW COURT
KEN-13-514
GINA TURCOTTE
APPELLANT
v.
SECRETARY OF STATE
APPELLEE
Appeal Brief for Appellant
Gina Turcotte
APPELLANT
41 Lambert Avenue
Augusta, Maine
Table of Contents
TABLE OF AUTHORITIES ........................................................................................ iii
PRELIMINARY STATEMENT .................................................................................... 1
NOTICE OF COMPANION CASES ............................................................................. 1
STATEMENT OF FACTS ............................................................................................. 2
PROCEDURAL HISTORY ............................................................................................2
ISSUES PRESENTED FOR REVIEW ......................................................................... 9
1. WHETHER FAILURE TO FILE MEDICAL EVALUATION RISES TO 29-A
M.R.S. 2458(2)(D) INCOMPETENT TO DRIVE A MOTOR VEHICLE.
2. WHETHER SECRETARY OF STATE HAD SUFFICIENT EVIDENCE
APPELLANT WAS INCOMPETENT TO DRIVE A MOTOR VEHICLE.
3. WHETHER SECRETARY OF STATE VIOLATED DUE PROCESS BY
SUSPENDING THE LICENSE WITHOUT SUFFICIENT EVIDENCE OF
INCOMPETENCY OR CONSULTATION WITH MEDICAL ADVISORY
BOARD.
4. WHETHER OFC. DOSSANTOS NOTIFIED APPELLANT OF ALL
REQUIRED ELEMENTS OF 'ACTUAL NOTICE' ON MARCH 7, 2011.
GinA v. State of Maine, Appendix
23a
Liberty Ins. Underwr. v. Estate of Faulkner, 2008 ME 149, 15, 957 A.2d 94
McGee v. Sec'y of State, 2006 ME 50, 5, 896 A.2d 933
Norris Perry v. Secretary of State, AP-00-02
STATUTES
29-A M.R.S. 2412-A(1-A)(A)
29-A M.R.S. 1258
29-A M.R.S. 1258(4)
29-A M.R.S. 1258(5)
29-A M.R.S. 2458(2)(D)
29-A M.R.S. 2458(4)
5 M.R.S. 10003
5 M.R.S. 10004(3)
29-A M.R.S. 2482
MAINE MOTOR VEHICLE RULES
29-250 Motor Vehicle Rules Section 2
29-250 Motor Vehicle Rules Section 3
PRELIMINARY STATEMENT
Appellant's case is heavily laden with constitutional violations by Appellee
"that broadly stifle fundamental personal liberties" Aptheker v. Secretary of State,
378 US 500, Supreme Court 1964.
Appellant is not a licensed nor a practiced attorney and has no formal legal
education or training. Appellant has a long and diverse administrative work history
involving proper application of various laws but has a very limited knowledge of
court rules, procedures and appellate process.
Hence, Appellant asks the law court to honor United States Supreme Court's
precedent in Haines v. Kerner 404 US 519, which stipulates, "the pro se complaint,
which we hold to less stringent standards than formal pleadings drafted by lawyers"
and excuse Appellant's minor technical errors as harmless errors having no
influence on the merits or outcome of this case.
Appellant has expressly reserved and continues to expressly reserve all of her
natural and common law rights as protected and guaranteed by the federal and
Maine Constitutions, on and for the record, nunc pro tunc. Appellant also expressly
reserves her right to amend without leave of court.
NOTICE OF COMPANION CASES
There are three (3) companion cases to this instant case, not including
Violations Bureau companion cases, which are docketed under:
AUGDC-CR-2011-512
AUGDC-CR-2011-513
AUGSC-CR-2012-286
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Appellant became transient in September 2007 after a micro-burst tornado
seriously damaged her rented home in Windsor, Maine which consequently caused
GinA v. State of Maine, Appendix
25a
her residency to become stopgap and unstable for several years. Appellant has since
lived in a few dozen different places with some lasting only a few days.
Consequently, Appellant was unable to keep a current mailing address
consistently on file with Appellee which prevented mail from being delivered to
Appellant which caused Appellant to unknowingly fail to fulfill a request for
medical evaluation in November 2009.
The record shows two medical notices were returned as undeliverable on
November 10 and December 29, 2009 by the United States Postal Service.
Appellee issued Appellant a violation free credit on December 31, 2009.
The record shows Appellee did not post pertinent public notices in their
attempt to contact Appellant and follow due process, nor were public notices issued
of a potential 'health or safety hazard' caused by Appellants alleged 'incompetence
to drive a motor vehicle'.
In fact, no actual notices were served on Appellant at all.
Despite the record clearly showing Appellant had not received nor been
served with the required actual notices, Appellee ignored and violated
constitutional and procedural due process and suspended the license on January 5,
2010 pursuant to 29-A M.R.S. 2458(2)(D) without holding a preliminary hearing,
without receiving any reports of adverse operation, without having clear and
sufficient evidence of incompetency, without having clear and sufficient evidence of
a health or safety hazard, and without any advice of the Medical Advisory Board or
any other competent medical professional.
Appellee maintained the administrative medical suspension for 397 days
beyond the statutory limitations imposed by 5 M.R.S. 10004(3) Action without
Hearing.
On February 10, 2011, Augusta Police Ofc. DosSantos initiated a traffic stop
without probable cause that a crime had been, was being, or was about to be
committed, which resulted in Appellant being released from the scene after being
issued a Violation Summons and Complaint for failure to obey a traffic control
device. Ofc. DosSantos did not indicate in any way that license #1491178 was
suspended or revoked. (AUGDC-CR-2011-512) (VB#2576761)
On March 7, 2011, Augusta Police Ofc. DosSantos, without probable cause
that a crime had been, was being, or was about to be committed, and with full
knowledge the license was suspended for medical reasons, initiated a traffic stop
and twice asked Appellant if her license was suspended which Appellant twice
denied; this communication served as Appellants first actual notice of the
medical suspension only. (AUGDC-CR-2011-513)
Ofc. DosSantos asked Appellant if she knew any reason the medical unit
would have to suspend the license. Appellant denied any knowledge insisting the
license should be active.
Ofc. DosSantos told Appellant he had no knowledge of the basis for the
medical suspension, the statutory authority for the suspension, nor did he inform
Appellant that she had a right to request an administrative hearing.
GinA v. State of Maine, Appendix
26a
Ofc. DosSantos did not fulfill the requirements of actual notice under 29-A
M.R.S. 2482 or Motor Vehicle Rules 29-250, Ch. 2, Section 2 Notice of Opportunity
for Hearing during the March 7, 2011 traffic stop.
Ofc. DosSantos issued two (2) Uniform Summons And Complaints under 29-A
M.R.S. 2412-A(1-A)(A) for February 10 and March 7, 2011. (AUGDC-CR-2011512/513)
Appellant called the Medical Unit at Bureau of Motor Vehicle upon her
arrival home on March 7, 2011.
Appellant contacted her physician on March 8, 2011 fulfilling Appellees
request for a medical evaluation with a signed declaration by Appellants physician
that Appellant was not using any medication at the time of the 2010 suspension,
nor currently. (Physician's Report, March 8, 2011)
In fact, Appellant ceased taking all pharmaceuticals in 2006.
Appellant never received any type of verbal or written notice prior to March
2013 that she was entitled to an administrative hearing or the license had been
suspended pursuant to 29-A M.R.S. 2458(2)(D) for incompetency.
The record shows no adverse report of unsafe operation nor the advice of the
Medical Advisory Board supporting any type of suspension.
Appellee deleted the medical suspension on March 8, 2011. (Dr. Record
1491178, 4/06/12 09:45:18, Page 3)
Appellee issued a violation free credit to Appellant on March 8, 2011 for the
calendar year 2010. (Dr. Record 1491178, 4/06/12 09:45:18, Page 3)
On March 8, 2011 Appellant went to the District Attorneys office to ask for a
dismissal of AUGDC-CR-2011-512 and AUGDC-CR-2011-513, which the District
Attorney explicitly rejected.
On July 5, 2011, Appellant appeared at her bench trial for AUGDC-CR-2011512 and AUGDC-CR-2011-513 and submitted a certified public copy of driving
record #1491178 to the district court judge showing no suspension existed on
February 10 or March 7, 2011, which the court rejected.
Appellant entered a plea of nolo contendere vis compulsiva on July 5, 2011 to
AUGDC-CR-2011-513.
AUGDC-CR-2011-512 was dismissed.
Appellant repeatedly expressed to the court that she had not received actual
knowledge or notice of any suspension until March 7, 2011 and that all charges
must be dismissed for Appellees failure to comply with actual notice requirements
under 29-A M.R.S. 2412-A(1-A)(A).
Appellant was not represented by nor did she waive her right to counsel in
criminal prosecutions of AUGDC-CR-2011-512 and 513.
Appellant did not have actual notice of the specific statutory authority of the
medical suspension until March 2013 thereby being unaware of her right to request
an administrative hearing to challenge the suspension nunc pro tunc.
In March 2013, Appellant discovered the statutory authority of the medical
suspension while reviewing evidence for AUGSC-CR-2012-286.
GinA v. State of Maine, Appendix
27a
On March 18, 2013, Appellant sent her first request for administrative
hearing to Appellee.
Assistant Director Susan Cole rejected Appellant's request on March 20, 2013
stating Appellants current suspensions did not allow for an administrative
hearing.
On March 28, 2013, Appellant sent her second demand for an administrative
hearing claiming the medical suspension was commenced improperly, without
sufficient evidence to support the suspension, without required notices and in
violation of due process, which was sent directly to Robert OConnell, Director of
Legal Affairs, Adjudications and Hearings.
On April 2, 2013, Mr. OConnell denied Appellants demand for an
administrative hearing specifying, Your request for an administrative hearing on a
license suspension of which you became knowledgeable two years ago and that was
terminated two years past is denied as untimely.
On April 8, 2013, Appellant sent a third demand for an administrative
hearing and notice of violation of procedural due process to Appellee again
demanding an administrative hearing and the opportunity to review the evidence
which supported Appellees decision to suspend the license without notice or
opportunity for preliminary hearing.
On April 10, 2013, Mr. OConnell again denied Appellants demand for
administrative hearing specifying, I am in receipt of your correspondence of April 8,
2013 in response to my letter of April 2, 2013 to you denying your request for an
administrative hearing. As I advised you in that letter, my decision represents final
agency action in this matter. You may seek judicial review of this final agency action
pursuant to the provisions of 5 M.R.S. 11001-11008.
At no time has Appellee disputed or contested any facts in the record.
On April 22, 2013 Appellant filed a Rule 80C Petition and Application and
Affidavit to Proceed without Payment of Fees which was ordered on April 25, 2013
by Judge Murphy.
On May 24, 2013 Appellant filed an Affidavit and Request for Default
Judgment for Appellee's failure to file the Certified Record on time.
On May 28, 2013 Appellee filed the Certified Record with the court.
On May 29, 2013 a Notice and Briefing Schedule was mailed to both parties.
On May 31, 2013, Appellee filed Respondent's Motion to Enlarge Time to File
Record Nunc Pro Tunc.
On June 27, 2013, J. Nivison ordered Appellee's Motion to Enlarge Time to
File Record Nunc Pro Tunc.
On July 6, 2013, Appellant filed a Motion to Enlarge Time to File Brief.
On July 12, 2013 J. Murphy ordered Appellant's Motion to Enlarge Time to
File Brief setting the deadline to file the brief for July 15, 2013.
On July 15, 2013, Appellant filed the Rule 80C Brief with the court.
On July 31, 2013, Appellee filed Brief of Respondent with the court
accompanied by a letter stating in the event the Petitioner requests oral argument,
Respondent waives its right to be present for the argument.
GinA v. State of Maine, Appendix
28a
comply with a request for medical evaluation in November and December 2009.
Both notices were returned to Appellee by the USPS effectively nullifying any notice
Appellee attempted to serve. There is no evidence Appellee posted public notices as
required by 5 M.R.S. 10003.
The record shows no evidence of adverse or unsafe operation, no
recommendation by the Medical Advisory Board in support of indefinite suspension
for incompetence, no evidence whatsoever of incompetence and no proof that all
elements of actual notice of suspension were provided to Appellant prior to March
2013.
Appellee improperly denied Appellant's request for administrative hearing as
untimely because Appellee incorrectly claims that actual notice was given to
Appellant by Ofc. DosSantos on March 7, 2011 during a traffic stop.
Appellee's erroneous claim that Ofc. DosSantos provided Appellant with all
required elements of 'actual notice' on March 7, 2011 is unsubstantiated and wholly
false.
The Maine Legislature has established clear rules indicating form, content
and delivery of suspension notices which mandate strict compliance with all
elements of actual notice and which must be supported by evidentiary proof of the
alleged actual notice.
"The statutory authority for suspension of a driver's license by the Secretary of
State in this case is set forth in section 2458(2)(D) which authorizes the suspension if
the licensed driver 'is incompetent to drive a motor vehicle.' Although this is a
decision of the Secretary of State or his designee, the Secretary does have available
the assistance of his Medical Advisory Board which may, at the Secretary's request,
interview drivers whose competency is in question. 29-A M.R.S. 1258(4)." Norris
Perry v. Secretary of State, AP-00-02
However, 5 M.R.S. 10003. Right To Hearing stipulates, "an agency may not
amend or modify any license unless it has afforded the licensee an opportunity for
hearing in conformity with subchapter IV, nor may it refuse to renew any license
unless it has afforded the licensee either an opportunity for an agency hearing in
conformity with subchapter IV or an opportunity for a hearing in the District Court.
In any such proceeding determined by the agency to involve a substantial public
interest, an opportunity for public comment and participation must also be given by
public notice in conformity with subchapter IV.
When Appellee suspends a license pursuant to 29-A M.R.S. 2458(2)(D)
without providing a hearing or making evidentiary findings, Appellee must adhere
to 5 M.R.S. 10004(3) Action Without Hearing, "Health or safety hazard. The health
or physical safety of a person or the continued well-being of a significant natural
resource is in immediate jeopardy at the time of the agency's action, and acting in
accordance with subchapter IV or VI would fail to adequately respond to a known
risk, provided that the revocation, suspension or refusal to renew shall not continue
for more than 30 days."
Clearly and convincingly, the record does not contain "competent and
substantial evidence which supports the results reached by the agency." CWCO, Inc.
GinA v. State of Maine, Appendix
30a
v. Superintendent of Ins., 1997 ME 226, 6, 703 A.2d 1258, 1261. "The remaining
issue is whether there were findings not supported by the evidence. Again, the issue is
not whether the court would have the same decision based upon the evidence, but
rather whether there was any evidence of record to support the agency's findings."
Norris Perry v. Secretary of State, AP-00-02
STANDARD OF REVIEW
"Because the Superior Court acted as an intermediate appellate court, we
directly review the Secretary of State's decision." McGee v. Sec'y of State, 2006 ME
50, 5, 896 A.2d 933. We review issues of statutory and constitutional
interpretation de novo. Id. We first look to the plain meaning of the statute,
interpreting its language "to avoid absurd, illogical or inconsistent results," Estate
of Joyce v. Commercial Welding Co., 2012 ME 62, 12, 55 A.3d 411 (quotation
marks omitted), and attempting to give all of its words meaning, Cobb v. Bd. of
Counseling Prof'ls Licensure, 2006 ME 48, 11, 896 A.2d 271. When a statute is
unambiguous, we interpret the statute directly, without applying the rule of
statutory construction that "prefers interpretations ... that do not raise
constitutional problems," McGee, 2006 ME 50, 18, 896 A.2d 933, and without
examining legislative history, Ashe v. Enterprise Rent-A-Car, 2003 ME 147, 7, 838
A.2d 1157, or the agency's interpretation, Cobb, 2006 ME 48, 13, 896 A.2d 271.
"We look to legislative history and other extraneous aids in interpretation of a
statute only when we have determined that the statute is ambiguous." Liberty Ins.
Underwriters, Inc. v. Estate of Faulkner, 2008 ME 149, 15, 957 A.2d 94. "A statute
is ambiguous if it is reasonably susceptible to different interpretations." Estate of
Joyce, 2012 ME 62, 12, 55 A.3d 411." Carrier v. Secretary of State, 60 A. 3d 1241,
Me Supreme Judicial Court 2012.
ARGUMENT
1. SECRETARY OF STATE COMMITTED AN ERROR OF LAW WHEN IT
DETERMINED 'FAILURE TO FILE MEDICAL EVALUATION' IS THE
EQUIVALENT OF 'INCOMPETENT TO DRIVE A MOTOR VEHICLE'.
Appellant has been unable to locate any case law on point but Blacks Law
Dictionary, 1st Edition, defines incompetency as lack of ability, legal
qualification, or fitness to discharge the required duty.
The record does not show any evidence of adverse or dangerous operation,
lack of ability, lack of legal qualification, or lack of fitness by Appellant to support
any claim of incompetency. Additionally, the record shows Appellant was issued
three consecutive years violation free credits for 2008, 2009 and 2010 indicating
Appellant had committed no violations and was able, legally qualified and fit to
receive those violation free credits.
Appellant did not receive actual notice of the request for medical evaluation
nor did Appellee post required public notices thereby preventing Appellant from
complying with its terms; however, even if Appellant had actual notice but still had
not complied with the medical evaluation request, there is no evidence in the record
to substantiate a license suspension for "incompetency to drive a motor vehicle".
GinA v. State of Maine, Appendix
31a
license...shall notify that person that the person has a right to and may request a
hearing. The notice must state:
1. The reason and statutory grounds for the suspension or revocation;
2. The effective date of the suspension or revocation;
3. The procedure for requesting a hearing; and
4. The date by which that request for hearing must be made.
There is no evidence in the record to substantiate the claim that Ofc.
DosSantos knew or informed Appellant of the reason or statutory grounds for the
suspension, the procedure for requesting a hearing, or the date by which the request
for hearing must be made. The only knowledge Ofc. DosSantos claimed to have or
delivered to Appellant was the license was suspended by the medical unit on
January 5, 2010.
5. SECRETARY OF STATE COMMITTED AN ERROR OF LAW WHEN IT
FAILED TO PROVIDE ADMINISTRATIVE HEARING IN MARCH AND
APRIL 2013.
29-250 Motor Vehicle Rules Section 3 requires, "If a request is made after the
ten day period and the Secretary of State finds that the person was unable to make a
timely request due to lack of actual notice of the suspension..., the Secretary of State
shall waive the period of limitation, reopen the matter and grant the hearing request,
except a stay may not be granted."
Superior Court indicated in their October decision that the waiver applies
only "if Petitioner can prove she did not have 'actual' notice of the suspension. But
these are not the facts of this case. On March 7, 2011, an actual notice was given to
Turcotte by a law enforcement officer, who during the traffic stop, personally
informed Turcotte that her driver's license had been suspended."
There are no facts in the record to substantiate Appellee's claim that actual
notice was properly given to Appellant by Ofc. DosSantos on March 7, 2011.
Appellant maintains Ofc. DosSantos confessed to having no knowledge by which he
was competent to provide actual notice of all elements as required by law. The only
element of actual notice Ofc. DosSantos provided was that the license had been
suspended by the medical unit on January 5, 2010.
There is no evidence in the record that Appellant was given verbal or written
notice by the medical unit on March 7 or 8, 2011 of the statutory authority for the
medical suspension or of Appellant's right to request an administrative hearing to
challenge the evidence and basis for the suspension.
Appellee cannot substantiate by evidence in the record that Appellant
received actual notice prior to March 2013 of the statutory authority for the medical
suspension under 29-A M.R.S. 2458(2)(D).
CONCLUSION
For the foregoing reasons together with those reasons the law court finds
pertinent and persuasive, Appellant respectfully moves the court to find that actual
notice requirements were not met, immediately reverse the January 5, 2010
decision by Secretary of State to suspend the license under 29-A M.R.S. 2458(2)(D)
for 'incompetence to drive a motor vehicle', void all companion cases which resulted
GinA v. State of Maine, Appendix
33a
directly or indirectly from this medical suspension (docketed under AUGDC-CR2011-512, AUGDC-CR-2011-513, AUGSC-CR-2012-286, including unidentified
Violations Bureau summonses).
If the law court remands this action back to Secretary of State for proper
hearing, the final outcome will be a full nullification of the medical suspension as
well as all companion cases resulting directly or indirectly from the 2010 medical
suspension so Appellant moves the law court to take the appropriate action now
nullifying the medical suspension and all corresponding violations, and issuing an
order for a complete refund and forgiveness of all fines and reinstatement fees
resulting from this and the companion cases cited herein.
If the law court decides actual notice was provided as required by law, and
that "failure to file a medical evaluation" rises to the level of being "incompetent to
drive a motor vehicle", Appellant needs full definitive opinions specifying the
elements which caused Appellant to become "incompetent to drive a motor vehicle"
and the facts and evidence supporting those opinions.
Dated in Augusta Maine this 17th day of January 2014.
In Peace,
GINA TURCOTTE
41 LAMBERT AVENUE
AUGUSTA, MAINE
APPENDIX M
STATE OF MAINE
State of Maine
v.
Gina Lynn Turcotte
Order
APPENDIX N
STATE OF MAINE
SUPERIOR COURT
KENNEBEC, ss.
AUGSC-CR-2012-00286 and 667 (merged)
STATE OF MAINE
Plaintiff
v
GINA LYNN TURCOTTE
Defendant
Dismissal
(M.R.Crim.P 48(a))
Pursuant to Rule 48(a) of the Maine Rules of Criminal Procedure the District
Attorney for Prosecutorial District 4 hereby dismisses the indictment, information,
complaint or count(s) 1, 3-7 thereof against the defendant for the following reasons:
1.) The Defendant has plead to other charges. (Count 2)
8.) Other.
Date: 12/18/13
APPENDIX O
STATE OF MAINE
SUPERIOR COURT
KENNEBEC, ss.
AUGSC-CR-2012-00286
STATE OF MAINE
Plaintiff
v.
GINA LYNN TURCOTTE
Defendant
Gina L. Turcotte
Defendant
As counsel for the defendant, I have explained to the defendant this procedure and
agreement. I believe the defendant fully understands the meaning of this
GinA v. State of Maine, Appendix
37a
ORDER
Based upon the above, the defendant's plea of guilty is accepted and sentencing is
deferred until a final disposition hearing (for 12 months to a date to be scheduled by
the clerk) (to date: December 16, 2014)
Date: December 18, 2013
APPENDIX P
STATE OF MAINE
SUPERIOR COURT
KENNEBEC, ss.
AUGSC-CR-2012-00286
STATE OF MAINE
Plaintiff
v.
GINA LYNN TURCOTTE
Defendant
APPENDIX Q
Whitefield ME 04353
Tel 207-549-7704
Fax 855-877-3737
HHainke@roadrunner.com
December 17, 2013
Hand Delivered on 12-18-13
Gina L. Turcotte
41 Lambert Ave.
Augusta ME 04330
Subject:
Plea Offer
Dear Gina:
As we have spoken about on previous occasions, you are charged with
Operating After Suspension a Class E crime, refusing to Submit to Arrest, a Class
D crime and Attaching False Plates, a Class E Crime.
A Class D crime is punishable by up to a year in jail and a $2000 fine. A
Class E crime is punishable by up to 6 months in jail and a $1000 fine. Therefore
you could be sentenced to 2 years in jail and fined $3000 if you are found guilty.
The District Attorney has offered to dismiss all charges except Operating
After Suspension and offers a $250 fine. I recommend that you accept this offer.
Cordially,
Harold J. Hainke, Esq.
APPENDIX R
STATE OF MAINE
SUPERIOR COURT
KENNEBEC, ss.
AUGSC-CR-2012-00286
STATE OF MAINE
Plaintiff
v
GINA LYNN TURCOTTE
Defendant
3RD Motion To Dismiss With Prejudice For Discovery And Due Process
Violations
Defendant restates and fully incorporates as if fully set forth herein,
Defendant's August 27, 2012 Motion to Dismiss for Lack of Standing; Failure to
Follow Due Process of Law; Violation of Constitutionally Protected Rights;
Statements of Facts, Points and Authorities in Support and Defendant's May 7,
2013 2nd Motion To Dismiss For Discovery And Due Process Violations With
Incorporated Memorandum Of Law In Support.
Defendant, Gina Lynn Turcotte, retaining all her rights and remedies, moves
this court to dismiss all charges with prejudice, pursuant to M.R.Crim.P. 16(d), as
follows:
1.
2.
This case is now on the December 2013 trial list, almost two (2) years after
these charges were first filed, and despite numerous requests and the Plaintiffs
legal responsibility under M.R.Crim.P. Rule 16 to provide prompt discovery of ALL
exculpatory evidence, Defendant still has not received critical discovery, as follows:
a.
All dispatch audio between Officer Guay, Officer Harris, Sergeant
Shaw and Augusta Police Dispatch on February 16, 2012.
GinA v. State of Maine, Appendix
42a
b.
All dispatch written transcripts between Officer Guay, Officer Harris,
Sergeant Shaw and Augusta Police Dispatch on February 16, 2012.
c.
All dispatch audio between Officer Corbett, Captain Stubbert and
Oakland Police Dispatch on April 5, 2012.
d.
All dispatch written transcripts between Officer Corbett, Captain
Stubbert and Oakland Police Dispatch on April 5, 2012.
e.
All dashcam audio and video recordings taken from Officer Guay's
cruiser on February 16, 2012, 2:30pm.
f
All dashcam audio and video recordings taken from Officer Harris'
cruiser on February 16, 2012, 2:30pm.
g.
All dashcam audio and video recordings taken from Sergeant Shaw's
cruiser on February 16, 2012, 2:30pm.
h.
All dashcam audio and video recordings taken from Officer Corbett's
cruiser on April 5, 2012, 2:30pm.
i..
All dashcam audio and video recordings taken from Captain Stubbert's
SUV on April 5, 2012, 2:30pm.
j.
All audio recordings from Officer Guay's handheld mp3 recorder on
February 16, 2012, 2:30pm.
k.
All audio recordings from Officer Harris' handheld mp3 recorder on
February 16, 2012, 2:30pm.
l.
All audio recordings from Sergeant Shaw's handheld mp3 recorder on
February 16, 2012, 2:30pm.
m.
n.
o.
All booking audio and video from Oakland Police Department on April
5, 2012.
p.
All booking and surveillance audio and video from Kennebec County
jail from April 5, 2012 at/around 3pm through April 6, 2012, 12:00pm.
GinA v. State of Maine, Appendix
43a
q.
All internal email messages, written literature, documentation and
official training materials from both Augusta and Oakland Police
Departments regarding sovereign citizens" (a misnomer).
r.
All standard operating procedures and policies for both police
departments regarding collection and retention of investigatory records,
notes, electronic recordings, and other related documents or tangible objects.
s.
All standard operating procedures and policies for both police
departments regarding engaging pursuit.
t.
All standard operating procedures and policies for both police
departments regarding initiating traffic stops for alleged minor violations.
u.
All standard operating procedures and policies for both police
departments regarding arrest and detention resulting from traffic stops.
v.
All standard operating procedures and policies for both police
departments regarding communicating and interacting with those suspects
the police officer may consider to be a sovereign citizen.
w.
All standard operating procedures and policies for both police
departments regarding use of physical force.
x.
All standard operating procedures and policies for both police
departments regarding use of firearms.
y.
All standard operating procedures and policies for both police
departments regarding disciplinary procedures and sanctions for internal
violation of laws, rules or procedures by law enforcement officers.
.
z.
YES or NO?? Did each of the officers perform mandatory in-car camera
pre- pursuit vehicle checks required by Maine Criminal Justice Academy
Pursuit and Response" training manual? If NO, specify reasons.
aa.
YES or NO?? Do activating blue police lights automatically activate
the in-car camera system? If NO, specify reasons.
bb.
YES or NO?? Was the in-car camera properly recording at the time of
pursuit? If NO, specify reasons.
cc.
YES or NO?? Did each of the officers initiate audio recording before the
initial traffic stop or subsequent pursuit? If NO, specify reasons.
GinA v. State of Maine, Appendix
44a
dd.
YES or NO?? Does a 2-car pursuit warrant the use of in-car camera
systems? If NO, specify reasons.
ee.
YES or NO?? Does drawing a firearm on a suspect mandate video/
audio evidence? If NO, specify reasons.
ff
YES or NO?? Did any of the officers consider Defendant to be a
sovereign citizen at any time prior to, during, or after the traffic stop, arrest
and detention? If YES, why?
gg.
PROVIDE DETAILED ANSWER: Why has the Oakland Police
Department failed to deliver booking audio and video if the Oakland Police
arrest report claims the entire booking process was recorded?
3.
Plaintiff has not refuted the existence of any of the aforementioned evidence.
4.
Plaintiff has absolutely no legitimate reason for withholding exculpatory
evidence.
5.
Plaintiff has knowingly violated M.R.Crim.P. 16(a)(3) by failing to provide
full discovery within 10 days of arraignment for a Class D and Class E crime, as
charged.
6.
Plaintiff has knowingly violated M.R.Crim.P. 16(b)(5) by failing to provide
full discovery for all cases charging a Class D and Class E crime within 10 days of
the request.
7.
Plaintiff has knowingly violated the constitution and Defendant's right to
receive a speedy trial by failing to provide exculpatory evidence as required under
M.R.Crim.P. 16.
WHEREFORE, Defendant moves this Court to dismiss all pending charges
with prejudice for the State's violation of its discovery obligation pursuant to
M.R.Crim.P. 16(d) and their denial of Defendant's due process rights, immediately
release Defendant from all bail conditions, refund Defendant's bail bond of $300,
and grant such further relief as justice so requires.
Dated: December 3, 2013
APPENDIX S
STATE OF MAINE
KENNEBEC, ss
DOCKET NO. AP-13-17
SUPERIOR COURT
CIVIL ACTION
GINA TURCOTTE,
Petitioner
v.
SECRETARY OF STATE,
Respondent
If a request is made after the ten day period and the Secretary of State
finds that the person was unable to make a timely request due to lack
of actual notice of the suspension or due to factors of phys1cal
incapacity, the Secretary of State shall waive the period of limitation,
reopen the matter and grant the hearing request.
29-250 C.M.R. Ch. 2, 3.
To satisfy 5 M.R.S. 9053(1) and in compliance with 29-A M.R.S. 24823 on
December 27, 2009, BMV mailed a notice of suspension, which informed Turcotte
that her right to operate a motor vehicle would be suspended on January 5, 2010
and that she had a right to an administrative hearing. The notice was sent to
Turcotte's last known address, the address she had provided to DMV. See State v.
Kovtuschenko, 521 A.2d 718, 719 (Me. 1987) ("[M]ail addressed to a licensee at the
address he himself supplied is reasonably calculated to reach him and apprise him
of the Secretary's action."); see also State v. Tayman, 2008 ME 177, 7, 960 A.2d
1151 ("[P]roof of mailing of notice, rather than of actual receipt, satisfied both
statutory and due process requirements.").
Petitioner purports that because she had become "transient" in September
2007, she did not receive the December 27, 2009 correspondence and therefore, did
not have "actual" notice of the suspension. Section 3 of 29-250 C.M.R. Ch. 2 indeed
requires the Secretary of State to waive the ten-day period of limitation and reopen
the matter, if Petitioner can prove she did not have "actual" notice of the
suspension. But these are not the facts of this case. On March 7, 2011, an actual
notice was given to Turcotte by a law enforcement officer, who during a traffic stop;
personally informed Turcotte that her driver's license had been suspended
.Petitioner did not make her request for a hearing until more than two years from
receiving the March 7, 2011 "actual" notice of the suspension. For the foregoing
reasons, Turcotte's request for an administrative hearing to challenge the January
5, 2010 suspension was untimely.
Moreover, even if this Court were to find that Turcotte's request for a hearing
was made within the time period permitted by 29-250 C.M.R. Ch. 2, 3, her request
is now moot because on March 8, 2011, her driving privileges were fully restored.
See Pelkey v. State, No. CIV A AP-99-59, 2000 WL 33675710, at *2 (Me. Super. Aug.
21, 2000) ("The concept of mootness is based on the principle that courts should
decline to decide issues which by virtue of valid and recognizable supervening
circumstances have lost their controversial vitality .") (quotations omitted).
The entry will be:
The decision of the Secretary of State dated April 2, 2013 is AFFIRMED.
GinA v. State of Maine, Appendix
48a
DATE:
10/24/13
1The
Functional Ability Profile for Psychiatric Disorders Level 3(a) calls for an
internal review every 4 years. BMV Medical Rules, Rule 29-250, Ch. 3.
2Under
the statutory iteration, the Superior Court may only reverse or modify an
administrative decision if it is:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by bias or error of law;
(5) Unsupported by substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion.
5 M.R.S. 11007(4)(C).
329-A
APPENDIX T
SUPERIOR COURT
KENNEBEC, ss.
DOCKET NO. AP-13-17
STATE OF MAINE
This court will notice that the record and argument filed by Respondent are
wrought with error, contradictions and inconsistencies which Petitioner will amply
clarify in this reply brief.
Respondent relies on Maine Revised Statutes, Motor Vehicle Rules, rules of
civil procedure and judicial precedent to justify their actions; however, all relevant
state and federal rules, laws and precedent must apply as they are written, not just
a select few which serve their unethical, unconstitutional, and capricious
motivations.
The court will see that Petitioner has had clean hands nunc pro tunc.
This court's decision must be made de novo upon the basis of truth, facts,
evidence, law and procedure in reviewing the agency's decision directly for abuse of
discretion, errors of law or findings not supported by the evidence and if the record
contains competent and substantial evidence to support the agency's conclusions.
Based upon the evidence in this record, strictly construed under the plain
meaning rule, this court must find that Respondent's actions were then, and are
now, based on willful non-disclosure, omission of facts, and fraud nunc pro tunc
about issuing the 'driver's license' in February 1989 and that they do not now nor
have they ever had sufficient evidence to justify any suspension for incompetency.
Additionally, after thoroughly reviewing and comparing federal and state
laws and Supreme Court decisions, there is a palpable conflict about the driver's
license being a statutory mandate for all persons rather than an alleged revocable
privilege.
Petitioner has proven beyond any doubt that a driver's license is not a
privilege and is in fact mandated by 29-A M.R.S. 1251 et seq. which gives
Respondent power to mandate a driver's license for all private noncommercial
traveling in automobiles in violation of federal and Maine constitutions and
supreme court decisions.
The purpose of constitutions is to articulate restraints placed upon activities
of governmental bodies in their attempted control and governance of private
liberties which are loosely defined by the United States Supreme Court as not being
confined to mere freedom from bodily restraint but also includes liberties which
extend to the full range of conduct an individual is free to pursue, and which cannot
be restricted except for a proper governmental objective not based upon fraudulent
nondisclosure.
Petitioner has proven that the Maine legislature acknowledged the
imperative differentiation between an operator's license and a driver's license by
their repeal of Title 29, Ch. 7 OPERATOR'S LICENSE and replacing it with Title
29-A, Ch. 11 DRIVERS LICENSE. The obvious difference lies in the plain meaning
between an operator and a driver as defined by Black's and Bouvier's Law and
Merriam Webster dictionaries. A driver earns a fare, fee or compensation for their
exercising control over the motor vehicle, whereas an operator does not and which is
private and cannot be licensed, infringed or regulated in any way.
freedom from cruel and unusual punishment, freedom from wrongful imprisonment,
excessive bail and penalties, and freedom from double jeopardy, inter alia.
If Respondent wants to erroneously apply the statutes to Petitioner, then
Petitioner gives this court imperative judicial notice that Respondent is constrained
by 29-A M.R.S. 1253(2) which requires, "The State must comply with the
Commercial Motor Vehicle Safety Act of 1986, Public Law 99-570, Title XII, the
federal Motor Carrier Safety Improvement Act of 1999, Public Law 106-159, 113
Stat.1748 and regulations adopted under those Acts in issuing or suspending a
commercial license. In the case of any conflict between the federal statute or
regulation and a statute or rule of this State, the federal statute or regulation
must apply and take precedence ...
Through enactment of 29-A M.R.S. 1251(4) "Number limited. A person
may not have more than one valid license, unless authorized by the
Secretary of State. A person may not have more than one commercial
license."
Respondent fully acknowledges all obligations under 29-A M.R.S. 1253(2)
by implementation of certain restrictions on the number of licenses which can be
issued to any person as required by Commercial Motor Vehicle Safety Act of 1986,
inter alia.
Respondent's codified deference to federal statutes through enactment of 29A M.R.S. 1253(2) force their compliance with United States Code as well as all
other federal rules and regulations.
United States Criminal Code, Title 18, 31(6) defines motor vehicle
as "every description of carriage or other contrivance propelled or drawn by
mechanical power and used for commercial purposes on the highways in the
transportation of passengers, passengers and property, or property or cargo."
United States Criminal Code, Title 18, 31(10) defines "used for
commercial purposes" as "the carriage of persons or property for any fare, fee, rate,
charge or other consideration, or directly or indirectly in connection with any
business, or other undertaking intended for profit."
29-A M.R.S. 1253(2) requires this court to defer to 18 USC 31(6) for
definition of a 'motor vehicle', then it must scrutinize the constitutionality of 29-A
M.R.S. 1251 et seq. and 29-A M.R.S. 2412-A inter alia.
29-A M.R.S. 2412-A claims that 'operating a motor vehicle' without a proper
'driver's license' is a 'crime' therefore the definition of a 'motor vehicle' must be
defined by United States Criminal Code in adherence to 29-A M.R.S. 1253(2).
This court must scrutinize 29-A M.R.S. 2412-A because Petitioner was
prosecuted of a "strict liability crime" on July 5, 2011 under 29-A M.R.S. 2412Aunder dockets AUGDC-CR-2011-00512 (dismissed) and AUGDC-CR-2011-00513
(coerced plea agreement) as a direct result of the medical suspension initiated on
January 5, 2010 for being "incompetent to drive a motor vehicle" although the
suspension notice claimed the suspension was for "failure to file a medical
evaluation request' which is not the same thing as being "incompetent to drive a
motor vehicle" .
GinA v. State of Maine, Appendix
53a
Petitioner was not told that she had a right to challenge the suspension.
Respondent cannot prove that Petitioner had any knowledge of her right to
request a hearing on March 8, 2011.
Respondent cannot prove that Petitioner had any knowledge of her right to
request a hearing prior to April 2013.
Respondent has not proven successful delivery of the legal notice, as required
under 29-A M.R.S. 2482(3).
Petitioner was never given the occasion to challenge the medical suspension.
Respondent cannot violate Petitioner's statutory right to receive proper notice
and then deprive her of an opportunity for a lawful hearing under 5 M.R.S. 9056.
Respondent restored license #1491178 without reinstatement fees or any
other penalties whereby indicating that the 'medical suspension is not any type of
crime.
Respondent issued a 'violation free' credit on March 8, 2011 for year 2010.
Respondent and BMV employees are incompetent to make accurate basic
entries, corrections and maintenance of records as evidenced in Tab 2 and Tab 3 of
Respondent's evidence, which is explained further in Petitioner's Brief, Pgs. 39- 42.
There is absolutely no evidence that Petitioner is incompetent.
There is absolutely no evidence that Petitioner is a driver.
There is absolutely no evidence that Petitioner drives a motor vehicle as
defined pursuant to 18 USC 31(6).
Respondent has utterly failed to prove with sufficient and clear evidence that
Petitioner was "incompetent to drive a motor vehicle" as defined herein.
Petitioner has evidently proven that the 'driver's license' is statutorily
mandated under 29-A M.R.S. 1251 et seq. for every resident and nonresident over
the age of 16 which patently interferes with ownership, use and enjoyment of
private property.
29-A M.R.S. 1251 et seq converted into a crime the exercising of natural
rights of ownership and enjoyment of private property and freedom of movement
and travel.
Petitioner was improperly and criminally prosecuted in 2011 for owning
private property, using and enjoying that private property on public streets while
not having a proper 'driver's license' although not engaged in compensated
commercial activities.
Respondent arrogantly claims that Petitioner "did not attempt to challenge
the suspension, nor did she request a hearing. Rather, she immediately complied
with BMV's request by submitting a driver medical evaluation form ... "
Respondent fails to admit that Petitioner had no other choice but to comply.
Respondent cannot prove that Petitioner was informed by BMV on March 8,
20 11 that the license was suspended for "incompetency.
Petitioner never received a copy of 2010 suspension notice as requested from
BMV Medical Unit on March 8, 2011.
Petitioner required the removal of all medical restrictions on March 8, 2011
but were never removed by BMV Medical Unit employees.
GinA v. State of Maine, Appendix
55a
evidence does not exist which therefore entirely nullifies the merits of BMV's
claims.
Regardless if Petitioner changed her mailing address every week, being
legally homeless or transient is not the same as being "incompetent to drive a motor
vehicle" which BMV used to arbitrarily suspend the license without basis in fact or
law.
CONCLUSION
Petitioner has proven by an abundance of unrebutted facts, evidence, law and
procedure that BMV has engaged in fraudulent; deceptive and unfair business
practices in that they knowingly fail to provide full disclosure upon an application
for a 'driver's license", they mandate noncommercial operators of private property to
request a needless 'driver's license' and then they arbitrarily suspend that license
without any expert consultation, facts, evidence or proper legal authority.
Petitioner moves this court to grant the Rule 80C appeal, enter declaratory
and injunctive relief in Petitioner's favor, reverse and nullify the January 5, 2010
medical suspension, reverse and nullify all companion open and closed cases related
to the medical suspension, refund all monies paid in all companion cases, release all
bonds and conditions of release for AUGSC-CR-2012-286, nullify all fines, penalties
and reinstatement fees pending on driving record # 1491178, cancel # 1491178 ME
for nondisclosure and fraud, order Respondent to flag # 1491178 ME with "DO NOT
STOP" on the National Driver Register, and order compensatory damages and other
legal and equitable relief as this court deems just, fair and appropriate.
DATED: August 14, 2013
GINA TURCOTTE
APPENDIX U
STATE OF MAINE
KENNEBEC, ss.
GINA TURCOTTE,
Petitioner
v.
SECRETARY OF STATE,
Respondent
SUPERIOR COURT
CIVIL ACTION
DOCKET NO. AP-13-17
Respondent's Brief
INTRODUCTION
On April 24, 2013, Petitioner Gina Turcotte ("Turcotte") filed the pending
Rule 80C appeal to challenge the Respondent Secretary of State Bureau of Motor
Vehicles ("BMV") April 2, 2013 denial of Turcotte's March 18, 2013 request for an
administrative hearing to challenge a January 5, 2010 suspension of Turcotte's
license, which had been imposed for failing to timely submit a driver medical
evaluation form. Petitioner Turcotte submitted her brief in support of the appeal on
July 15, 2013. BMV submits this brief in reply to Turcotte's brief.
BACKGROUND
1. On September 7, 2005, BMV received a driver medical evaluation form
regarding Turcotte's diagnosis of Psychiatric Disorders. (Tab 3, 11/12/ 09
letter of Patty Morneault).
2. On November 12, 2009, pursuant to 29-A M.R.S. 1258(3) & Rule 29-250,
Chapter 3, BMV requested Turcotte to submit a progress report on her
condition by January 5, 2010 and mailed a driver medical evaluation form to
the last known address she had provided to BMV.1 (Tab 3, 11/12/09 letter of
Patty Morneault).
3. On December 27, 2009, BMV mailed a notice of suspension and opportunity
for hearing to the last known address that Turcotte had provided to BMV.
(Tab 3, 12/27/09 Notice of Suspension and Opportunity for Hearing). The
notice warned her that her license would be suspended effective January 5,
2010 if she failed to submit the requested driver medical evaluation form.
The notice also informed her that she had the right to request an
administrative hearing prior to January 15, 2010.
4. On January 5, 2010, the indefinite suspension went into effect because
Turcotte did not submit the requested evaluation form. (Tab 3, 4/2/13
Review Requested). Turcotte also did not request an administrative hearing
by January 15, 2010.
5. On March 7, 2011, a law enforcement officer personally informed Turcotte
that her license was under suspension during a traffic stop. (Tab 3, 3/28/13
letter of Gina Turcotte).
GinA v. State of Maine, Appendix
58a
Respectfully submitted,
DONALD W. MACOMBER
Assistant Attorney General
Criminal Division
Maine Bar No. 6883
Six State House Station
Augusta, ME 04333-0006
(207) 626-8507
No. _____________
IN THE
APPENDIX, VOLUME II
___________________________________________
APPENDIX V
KENNEBEC COUNTY SUPERIOR COURT
Docket No. AP-13-17
GINA TURCOTTE
Petitioner/APPELLANT
v.
SECRETARY OF STATE
Respondent/APPELLEE
Rule 80C Petition Brief for Appellant
DUE AND SUBMITTED ON JULY 15, 2013
Gina Turcotte
Petitioner/APPELLANT
3 Washington Street Place, Unit 1
Augusta, Maine
TABLE OF CONTENTS
I. TABLE OF CONTENTS
II. TABLE OF AUTHORITIES
III. STANDARD OF REVIEW
IV. PLAIN MEANING RULE
V. DEFINITIONS
VI. DIAGRAM OF NATURAL ORDER
VII. IMPERATIVE JUDICIAL NOTICE
VIII. INTRODUCTION
IX. STATEMENTS OF THE ISSUES TO BE REVIEWED
X. FACTUAL BACKGROUND
XI. ARGUMENT
XII. RELIEF REQUESTED
XIII. CONCLUSION
Maine Statutes
5 M.R.S. 9052. Notice
5 M.R.S. 9056. Opportunity To Be Heard
5 M.R.S. 9059. Record
5 M.R.S. 10001. Adjudicatory Proceedings
5 M.R.S. 10003. Right To Hearing
5 M.R.S. 10004. Action Without Hearing
5 M.R.S. 11001. Right To Review
5 M.R.S. 11005. Responsive Pleading; Filing Of The Record
5 M.R.S. 11006. Power Of Court To Correct Or Modify Record
5 M.R.S. 11007. Manner And Scope Of Review
29-A M.R.S. 112. Notice Of Hearing
29-A M.R.S. 1258. Medical Advisory Board
29-A M.R.S. 1251. License Required
29-A M.R.S. 1309. Reexamination Of Incompetent Or Unqualified Operators
29-A M.R.S. 1407. Change Of Location Or Status
29-A M.R.S. 2458. Suspension or revocation of license
29-A M.R.S. 2482. Notice of suspension or revocation of license
29-A M.R.S. 2485. Decision; Appeal
Maine Cases
Opinion of the Justices, 255 A.2d 643, 649 (Me.1969).
State v. Granville, 336 A.2d 861, 863 (Me.1975)
Fickett v. Maine KEN-AP-02-57
Melanson v Secretary of State 2004 ME 127
DiPietro v. Secretary of State, 802 A. 2d 399 - Me: Supreme Judicial
State v. Savard, 659 A. 2d 1265 - Me: Supreme Judicial Court 1995
Centamore v. Dep't of Human Services, 664 A.2d 369, 370 (Me. 1995)
CWCO, Inc. v. Sup't of Insurance, 1997 NrE 226, 6, 703 A.2d 125S, 1261
Imagineering v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991)
Opinion of the Justices, 255 A.2d 643, 649 (Me.1969)
State v. Granville, 336 A.2d 861, 863 (Me.1975)
Carrier v. Secretary of State, 60 A. 3d 1241 - Me: Supreme Judicial Court 2012
McGee v. Sec'y of State, 2006 ME 50, 896 A.2d 933
Estate of Joyce v. Commercial Welding Co., 2012 ME 62, 55 A.3d 411
Cobb v. Bd. of Counseling Prof'ls Licensure, 2006 ME 48, 896 A.2d 271
Ashe v. Enterprise Rent-A-Car, 2003 ME 147, 838 A.2d 1157
Liberty Ins. Underwriters, Inc. v. Estate of Faulkner, 2008 ME 149 957 A.2d 94
Georgia General Assembly House Bill 7
http://www1.legis.ga.gov/legis/2011_12/sum/hb7.htm
32. religion. A system of faith and worship usu. involving belief in a supreme
being and usu. containing a moral or ethical code; esp., such a system recognized
and practiced by a particular church, sect, or denomination. In construing the
protections under the Establishment Clause and the Free Exercise Clause, courts
have interpreted the term religion quite broadly to include a wide variety of theistic
and nontheistic beliefs.
33. remedial. Affording or providing a remedy; providing the means of
obtaining redress <a remedial action>. 2. Intended to correct, remove, or lessen a
wrong, fault, or defect <a remedial statute>. 3. Of or relating to a means of
enforcing an existing substantive right <a remedial right>.
34. absolute right. A right that belongs to every human being, such as the
right of personal liberty; a natural right. 2. An unqualified right; specifically a right
that cannot be denied or curtailed except under specific conditions
35. secta. Roman law. A group of followers, as of a particular religion or
school of philosophy, law, etc.; a religious sect; a group adhering to a distinctive
doctrine or to a leader.
36. secular. Worldly, as distinguished from spiritual.
37. sentiment. an attitude, thought, or judgment prompted by feeling; a
specific view or notion.
38. spiritual. Of or relating to ecclesiastical rather than secular matters.
establish (Statement of Intent) this constitution (Written Indenture) for the United
States of America (name of the entity being created).
The trust res is in the Articles of the Confederation and the Declaration of
Independence. The intent of the constitution was to bequeath freedom, life, liberty
and the pursuit of happiness to themselves and their posterity. The founders
intended to secure and pass on the sovereignty of the people to the people of future
generations of Americans, in perpetuity.
PETITIONERs rights are derived from the land upon which she stands and
her relation, or status, to that land. In America these rights originated with the
Articles of Confederation and the Declaration of Independence and are attached to
the land called America (The Laws of Real Property). PETITIONERs status, or
relation to that land, is determined by the laws of Descent and Distribution.
PETITIONERs right to freedom, life, liberty and the pursuit of happiness is
her inheritance as bequeathed to her via the Constitution of the United States of
America and upon which the Constitution of the State of Maine was drafted and
enacted.
The constitution granted the government the power and authority to
administrate and to carry on corporate functions. Under the common law, inherent
rights cannot devolve to a 'body politic' through a corporation. Rights only devolve to
human beings as through and by way of a trust. Under the constitutional law, in
order to determine the meaning of a written instrument the court must look to the
title. In this case, once again, it is the Preamble. Pursuant to the laws of real
property that have been in existence from the beginning, the Preamble clearly
shows a freehold in fee simple absolute in it. Freeholds in fee simple were
instruments of trust, not corporate. "Our Posterity" cannot be speaking of a
corporate entity because posterity can only mean a living man or woman, and only
by birth and nativity.
The Articles of the Constitution are the Articles of Incorporation that
established Congress as Trustees of the Trust and defines their power and authority
as well as their limitations. Annexed to the Constitutional Trust is a will-like
structure, the Amendments. The Trust and the trust res were already in existence
when the will/codicil (Amendments) were added some four years later. The
Amendments do not constitute the Trust in fact, they are annexed to the Trust as a
codicil (a supplement or addition to the will, not necessarily disposing of the entire
estate, but modifying, explaining or otherwise qualifying the will in some way.)
A Trust, once completed and in force, cannot be amended or altered without
the consent of the parties in interest, except under reserved power of amendment
and alteration. An amendment is ordinarily possible by parties in interest and
against parties without vested interest. Prior to enactment of the 14th Amendment,
the freeborn inhabitants, citizens of the states, were the parties in interest.
The 14th Amendment created the 14th Amendment legal fiction citizen
GINA LYNN TURCOTTE who does not have a vested interest in the trust or the
trust res. The 14th Amendment can be viewed as a codicil to the will that
republished the constitution with new meaning, changed the intent behind it and
GinA v. State of Maine, Appendix
73a
turned it into a testamentary instrument with capabilities of being used against the
PETITIONER through a seemingly voluntary revocation.
When PETITIONERs mother provided evidence of her birth and applied for
a social security number on PETITIONERs behalf, and when PETITIONER
mistakenly claimed be a United States citizen, who is a party with no vested interest
in a freehold, the trust or the trust res, the PETITIONER was literally declared to be
deceased; therefore, the decedent (PETITIONER) retains no legal interest in the
property and PETITIONER, in her new capacity as a legal fiction citizen, is then
coerced to act as Executor of PETITIONERs own estate.
PETITIONER, a freeholder and Beneficiary to the trust, has been tricked and
coerced by the Trustees into testifying against herself when applying for a social
security number, drivers license, or when signing an IRS 1040 form, and which the
Trustees have mislead PETITIONER into believing are all mandatory.
The Trustees have breached the trust having amended the will for their own
personal profit and gain at the expense of the true heirs. PETITIONER has
unwittingly, without full disclosure, become the Executor; the Trustees have become
the Beneficiaries to the trust through Laws of Donations, effectively stealing
PETITIONERs Divine Inheritance.
A breach of trust of fiduciary duty by a Trustee is a violation of the
correlative right of the Cestui Que Trust and gives rise to any correlative cause of
action on the part of the Beneficiary for any loss to the estate Trust. This rule is
applicable in respect to both positive acts or negligence constituting a breach of
fiduciary duty by the Trustee. A Trustee's breach of fiduciary duty falls within the
maxim that 'equity will not aid one who comes into court with unclean hands.'
When the Trustee's breach is by an act of omission the Beneficiary can
scrutinize the propriety of the Trustee. A Beneficiary must always have full
disclosure and full knowledge of the material facts and circumstances. A Beneficiary
must also have had knowledge of and understood their rights and have no
obligation to search the public records to obtain said knowledge.
The Trustees have committed acts of omission, misrepresentation, deceit and
deception in order to mislead and coerce PETITIONER into giving up her beneficial
interest in the trust and the trust res. The Trustees have compelled PETITIONER,
a freeholder in fee simple, to accept benefits 'under the will' as perverted by the
14th Amendment, without freedom of choice for failure of full disclosure thereby
preventing enforcement of contractual rights to property bequeathed to her by the
will. The Trustees are trying to repudiate the Trust, employing a lifetime of
propaganda and programming enforced through threats, violence and coercion, and
failing to provide notice to the Beneficiary of the repudiation which must now be
brought home and lawfully remedied.
The Doctrine of Election dictates, that a party shall not be permitted to insist
at different times upon the truth of two inconsistent and repugnant positions,
according to the promptings of his own interest, as to first affirm and later disaffirm
a contract, or the like Myers v. Ross, D.C., 10 F.Supp. 409, 411, in connection with
testamentary instruments is the principle that one who is given a benefit 'under the
GinA v. State of Maine, Appendix
74a
will' must choose between accepting the benefits and asserting some other claim
against the testator's estate or against the property disposed of by the will.
PETITIONERs right as a Beneficiary to elect whether to take 'under the will' or
'against the will' is a personal privilege to her which may be controlled by the
creditors of the Beneficiary. If PETITIONER elected to take against the will then
creditors can claim no right or interest in the estate contrary to PETITIONERS
election.
Acceptance of benefits 'under the will' constitutes an election precluding
PETITIONER from enforcing contractual rights to property bequeathed by the will.
This rule is subject to the qualification that acceptance of a benefit 'under the will',
when made in ignorance of the Beneficiaries rights or under a misapprehension or
misrepresentation as to the condition of the Testator's estate, does not constitute an
election upon full knowledge and disclosure.
In the beginning God gave men and women dominion over all things, as
Beneficiaries of the Divine Trust. The founding fathers of the United States of
America created the constitution for the United States, an estate trust, to pass
sovereignty of the people onto the people of future generations, in perpetuity.
In America today, upon giving birth, a mother is compelled, under deceptive
coercion and without full factual disclosure, to apply for the creation of a Cestui Que
Vie trust, creating a 14th Amendment paper citizen of the United States. Upon
receipt of the mother's application the Trustees establish a trust under the error of
assumptions that the child has knowingly elected to accept the benefits which are
bequeathed by the will, 'under the will'. The Trustees further assume that the child
is incompetent, a bankrupt and lost at sea and is presumed to be dead until the
child reappears, knowingly reestablishes living status, challenges assumptions of
any acceptance of the benefits 'under the will' as being one of free choice with full
knowledge of the facts and thereby redeems the estate.
Under the assumption that the child is a 14th Amendment citizen, the child's
footprint is placed by the hospital upon the birth certificate creating a slave bond
which is sold to the federal reserve, who then converts it into a negotiable
instrument and establishes a second Cestui Que Vie trust. The child's parents are
coercively deceived to apply for a social security number for the child, unwittingly
testifying that the child is a 14th Amendment paper citizen of the United States,
not a party in interest to the trust or the trust res, and assumed to be dead after 7
years, and when the federal reserve cannot seize the physical child, they file for the
issue of the salvage bond and the child is presumed to be legally dead.
When a child is Baptized by the church, the Baptismal certificate is
forwarded to the Vatican who converts the certificate into a negotiable instrument
and creates a third Cestui Que Vie trust. These three trusts represent the
enslavement of the property, body and soul of the child. The civil administration,
UNITED STATES, continues to operate today under this triple crown of
enslavement based on the error of assumptions that we are 14th Amendment
citizens of the United States based on the breach of trust by the Trustees.
GinA v. State of Maine, Appendix
75a
PETITIONER has been lost in the sea of illusion, her divine estate placed in
trust. PETITIONER has awakened to the truth, so long hidden from her, and now
redeems her estate. PETITIONER hereby acknowledges and accepts the deed and
her right as lawful and proper owner of the estate with exclusive right of use of all
land, tenements and heredimants thereof, to have and to hold in fee simple forever.
This freehold in fee simple has been held under an assumed lease for fortyfour years. Said fee has been held in abeyance, in expectation, remembrance, and
contemplation in law there being no person in esse, in whom it can vest and abide:
though the law has considered it as always potentially existing, and ready to vest
whenever a proper owner appears. It is hereby established, in fact, that
PETITIONER, who was given the name Gina Lynn when she was born on
December 17, 1968 into the Turcotte family, is the proper owner of the estate GINA
LYNN TURCOTTE in whom vests and abides to have and to hold in fee simple
forever.
Freely born, sovereign people have a common law and constitutionallyprotected right to travel on the roads and highways of this land as maintained by
their government on their behalf and specifically for their use and benefit. Licensing
of private, not-for-hire travelers cannot be required of free sovereign private people
because taking on the restrictions of a drivers license requires the surrender of and
creates encumbrances upon PETITIONERs inalienable right to travel in her
private property.
In England in 1215, the Magna Carta enshrined the right to travel in Article
42, to wit, It shall be lawful to any person, for the future, to go out of our kingdom,
and to return, safely and securely, by land or by water, saving his allegiance to us,
unless it be in time of war, for some short space, for the common good of the
kingdom: excepting prisoners and outlaws, according to the laws of the land, and of
the people of the nation at war against us, and Merchants who shall be treated as it
is said above.
Where rights secured by the Constitution of the United States and the State
of Maine are involved, there can be no rulemaking or legislation that would
abrogate those rights. A claim or exercise of a constitutionally-protected right
cannot be converted into a crime. There can be no remedial action, civil sanction or
criminal penalty imposed because PETITIONER lawfully exercised her
constitutionally-protected rights.
PETITIONER has the inalienable right to use public roads unrestricted in
any manner so long as she is not damaging property or violating rights of others.
The government is effectively restricting PETITIONERs freedom of locomotion by
requiring PETITIONER to obtain a drivers license and thus violating
PETITIONERs common law and constitutionally-guaranteed right to travel upon
the public highways and possess and enjoy private property during her pursuit of
safety, prosperity and happiness.
Justice Potter Stewart noted in a concurring opinion in Shapiro v Thompson,
394 U.S. 618 (1969) that the right to travel is a right broadly assertable against
private interference as well as governmental action. Like the right of association...it
GinA v. State of Maine, Appendix
76a
29-A M.R.S. 1253(2) Compliance with federal law. dictates, The State
must comply with the Commercial Motor Vehicle Safety Act of 1986, Public Law 99570, Title XII, the federal Motor Carrier Safety Improvement Act of 1999, Public Law
106-159, 113 Stat. 1748 and regulations adopted under those Acts in issuing
or suspending a commercial license. In the case of any conflict between the
federal statute or regulation and a statute or rule of this State, the federal
statute or regulation must apply and take precedence. [emphasis added]
29-A M.R.S. 101(42) defines "motor vehicle" as a self-propelled vehicle
not operated exclusively on tracks but does not include:
A. A snowmobile as defined in Title 12, section 13001;
B. An all-terrain vehicle as defined in Title 12, section 13001, unless the allterrain vehicle is permitted in accordance with section 501, subsection 8 or is
operated on a way and section 2080 applies; and
C. A motorized wheelchair or an electric personal assistive mobility device
29-A M.R.S. 101(42) directly conflicts with 18 U.S.C. 31(6).
29-A M.R.S. 101(91) defines vehicle as a device for conveyance of
persons or property on a way. Vehicle does not include conveyances propelled or
drawn by human power or used exclusively on tracks or snowmobiles as defined in
Title 12, section 13001 or an electric personal assistive mobility device as defined in
this section.
29-A M.R.S. 101(50) defines "owner" as a person holding title to a vehicle
or having exclusive right to the use of the vehicle for a period of 30 days or more.
29-A M.R.S. 101(59) defines "public way" as a way, owned and
maintained by the State, a county or a municipality, over which the general public
has a right to pass.
29-A M.R.S. 101(75) defines street or highway as a public way.
29-A M.R.S. fails to establish any clear difference between a private
automobile and a commercial motor vehicle as required by 18 U.S.C. 31(6);
therefore, 29-A M.R.S. 1253(2) mandates that 18 U.S.C. 31(6) take precedence.
It is a matter of this record that License #1491178 is Class C which is not a
commercial drivers license (CDL) and which has never had commercial
endorsements.
It is a matter of this record that License #1491178 shows no offenses
involving intoxication or serious bodily injury.
PETITIONER has been defrauded and coerced ad infinitum since February 3,
1989 through RESPONDENTs willful nondisclosure effectively coercing and
intimidating PETITIONER to obtain a drivers license whereby she unknowingly
waived her sovereign right to travel without earning a fair wage in her private
property without being restricted by unlawful and unconstitutional governmental
encumbrances.
PETITIONER alleges that RESPONDENT has violated her freedom of
religion as protected by Maine Constitution Article 1, Section 3, by coercively
restraining PETITIONER in exercising her personal liberty to worship GOD in the
manner and season most agreeable to PETITIONERs own conscience.
GinA v. State of Maine, Appendix
79a
locomotion,-to go where one pleases, and when, and to do that which may lead to
one's business or pleasure, only so far restrained as the rights of others may make it
necessary for the welfare of all other citizens.
Pinkerton v. Verberg, 78 Mich. 573 1889, "The right to travel is a part of
the liberty of which the citizen cannot be deprived without due process of law...."
City of Chicago v. Collins, 175 Ill. 445 1898, A license being regarded as
a privilege cannot possibly exist with reference to something which is a right, free
and open to all, as is the right of the citizen to ride over the highways by motor
vehicle, or horse vehicle in a reasonable manner.
Bonnett v. Vallier, 136 Wis. 193 1908, This Court has said with respect
to an unconstitutional law that the matter stands as if the law had not been passed.
Frost v. Railroad Commission, 271 U.S. 583; 46 S.Ct. 605 (1926), it
would be a palpable incongruity to strike down an act of state legislation which, by
words of express divestment, seeks to strip the citizen of rights guaranteed by the
federal Constitution, but to uphold an act by which the same result is accomplished
under the guise of a surrender of a right in exchange for a valuable privilege which
the state threatens otherwise to withhold. It is not necessary to challenge the
proposition that, as a general rule, the state, having power to deny a privilege
altogether, may grant it upon such conditions as it sees fit to impose. But the power
of the state in that respect is not unlimited, and one of the limitations is that it may
not impose conditions which require the relinquishment of Constitutional rights. If
the state may compel the surrender of one constitutional right as a condition of its
favor, it may, in like manner, compel a surrender of all.
It is inconceivable that guaranties embedded in the Constitution of
the United States may thus be manipulated out of existence. [emphasis
added]
Thompson v. Smith, 155 Va. 367 - Va: Supreme Court 1930, The right of
a citizen to travel upon the public highways and to transport his property thereon in
the ordinary course of life and business is a common right which he has under his
right to enjoy life and liberty, to acquire and possess property, and to pursue
happiness and safety. It includes the right in so doing to use the ordinary and
usual conveyances of the day; and under the existing modes of travel includes
the right to drive a horse-drawn carriage or wagon thereon, or to operate an
automobile thereon, for the usual and ordinary purposes of life and
business. It is not a mere privilege, like the privilege of moving a house in the
street, operating a business stand in the street, or transporting persons or
property for hire along the street, which a city may permit or prohibit at will. The
exercise of such a common right the [RESPONDENT] may, under its police power,
regulate in the interest of the public safety and welfare; but it may not arbitrarily or
unreasonably prohibit or restrict it, nor may it permit one to exercise it and refuse to
permit another of like qualifications, under like conditions and circumstances, to
exercise it. Taylor Smith, 140 Va. 217, 124 S.E. 259; Ex parte Dickey, 76 W.Va. 576,
85 S.E. 781, L.R.A. 1915-F, 840; Hadfield Lundin, 98 Wash. 657, 168 Pac. 516,
L.R.A. 1918-B, 909, Ann. Cas. 1918-C, 942.
GinA v. State of Maine, Appendix
81a
The regulation of the exercise of the right to drive a private automobile on the
streets of the city may be accomplished in part by the city by granting, refusing, and
revoking, under rules of general application, permits to drive an automobile on its
streets; but such permits may not be arbitrarily refused or revoked, or permitted to be
held by some and refused to other of like qualifications, under like circumstances
and conditions.
It has been said that when the State or a city has the power to prohibit the
doing of an act altogether, it has the power to permit the doing of the act upon any
condition, or subject to any regulation, however arbitrary or capricious it may be;
and may lawfully delegate to executive or administrative officers an uncontrolled
and arbitrary discretion as to granting and revoking permits or licenses to do such
acts; Taylor Smith, 140 Va. 217, 124 S.E. 259, 263; State ex rel. Crumpton
Montgomery, 177 Ala. 221, 59 So. 294; State Gray, 61 Conn. 39, 22 Atl. 675; City of
St. Joseph Levin, 128 Mo. 588, 31 S.W. 101, 49 Am.St.Rep. 577; Brown Stubbs, 128
Md. 129, 97 Atl. 227.
This doctrine has been pronounced most often in cases involving the granting,
refusing, and revoking of licenses or permits to sell intoxicating liquors, or to do
other things which because of their character are, or tend to be, injurious, as for
instance keeping a gambling house or a bawdy-house, or operating a junk or pawn
shop; and it has also been applied to cases involving permits or licenses to transport
persons or property for hire along the streets. See Taylor Smith, supra, and cases
there cited. But this doctrine has no application to permits issued for the purpose of
regulating the exercise of the common right to operate a private automobile on the
streets of a city, in the usual and ordinary way, to transport the driver's person and
property.
Murdock v. Pennsylvania, 319 US 105 - Supreme Court 1943, It is
contended, however, that the fact that the license tax can suppress or control this
activity is unimportant if it does not do so. But that is to disregard the nature of this
tax. It is a license tax a flat tax imposed on the exercise of a privilege
granted by the Bill of Rights. A state may not impose a charge for the
enjoyment of a right granted by the Federal Constitution.
Miller v. United States, 230 F. 2d 486 - Court of Appeals, 5th Circuit
1956, The claim and exercise of a constitutional right cannot thus be converted into
a crime.
Berberian v. Lussier, 139 A. 2d 869 - RI: Supreme Court 1958, The use
of the automobile as a necessary adjunct to the earning of a livelihood in modern life
requires us in the interest of realism to conclude that the right to use an automobile
on the public highways partakes of the nature of a liberty within the meaning of the
constitutional guarantees of which the citizen may not be deprived without due
process of law
Cooper v. Aaron, 358 US 1 - Supreme Court 1958, No state legislator or
executive or judicial officer can war against the Constitution without violating his
undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in
saying that: If the legislatures of the several states may, at will, annul the judgments
GinA v. State of Maine, Appendix
82a
of the courts of the United States, and destroy the rights acquired under those
judgments, the constitution itself becomes a solemn mockeryUnited States v.
Peters, 5 Cranch 115, 136.
United States v. Guest, 383 US 745 - Supreme Court 1966, The
constitutional right to travel from one State to another, and necessarily to use the
highways and other instrumentalities of interstate commerce in doing so, occupies a
position fundamental to the concept of our Federal Union. It is a right that has been
firmly established and repeatedly recognized. In Crandall v. Nevada, 6 Wall. 35,
invalidating a Nevada tax on every person leaving the State by common carrier, the
Court took as its guide the statement of Chief Justice Taney in the Passenger Cases,
7 How. 283, 492:
"For all the great purposes for which the Federal government was formed, we
are one people, with one common country. We are all citizens of the United States;
and, as members of the same community, must have the right to pass and repass
through every part of it without interruption, as freely as in our own States."
Although the Articles of Confederation provided that "the people of each State
shall have free ingress and regress to and from any other State," that right finds no
explicit mention in the Constitution. The reason, it has been suggested, is that a right
so elementary was conceived from the beginning to be a necessary concomitant of the
stronger Union the Constitution created. In any event, freedom to travel throughout
the United States has long been recognized as a basic right under the Constitution.
See Williams v. Fears, 179 U. S. 270, 274; Twining v. New Jersey, 211 U. S. 78, 97;
Edwards v. California, 314 U. S. 160, 177 (concurring opinion), 181 (concurring
opinion); New York v. O'Neill, 359 U. S. 1, 6- 8; 12-16 (dissenting opinion)...
Although there have been recurring differences in emphasis within the
Court as to the source of the constitutional right of interstate travel, there is no need
here to canvass those differences further. All have agreed that the right exists. Its
explicit recognition as one of the federal rights protected by what is now 18 U. S. C.
241 goes back at least as far as 1904. United States v. Moore, 129 F. 630, 633. We
reaffirm it now.
Adams v. City of Pocatello, 416 P. 2d 46 - Idaho: Supreme Court 1966
The right to operate a motor vehicle upon the public streets and highways is not a
mere privilege. It is a right or liberty, the enjoyment of which is protected by the
guarantees of the federal and state constitutions. Arrow Transportation Co. v. Idaho
Public Utilities Com'n, 85 Idaho 307, 379 P.2d 422 (1963); State v. Kouni, 58 Idaho
493, 76 P.2d 917 (1938); Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L. R. 317
(1927); Abrams v. Jones, 35 Idaho 532, 207 P. 724 (1922); Schecter v. Killingsworth,
93 Ariz. 273, 380 P.2d 136 (1963); People v. Nothaus, 147 Colo. 210, 363 P.2d 180
(1960); Escobedo v. State Dept. of Motor Vehicles, 35 Cal.2d 870, 222 P.2d 1 (1950);
Hadden v. Aitken, 156 Neb. 215, 55 N.W.2d 620, 35 A.L.R.2d 1003 (1952); Doyle v.
Kahl, 242 Iowa 153, 46 N.W.2d 52 (1951); Ballow v. Reeves, 238 S.W.2d 141
(Ky.1951); Berberian v. Lussier, 87 R.I. 226, 139 A.2d 869 (1958); Wall v. King, 206
F.2d 878 (1st Cir. 1953).
GinA v. State of Maine, Appendix
83a
RESPONDENT and their agents routinely and habitually violate the Maine
Constitution and act outside the boundaries of law and fair play presuming their
behavior will be condoned, supported and justified by the courts.
PETITIONER makes imperative judicial notice that 29-A M.R.S. 1251(1)
states, Except as provided in section 510, subsection 1, a person commits an offense
of operating a motor vehicle without a license if that person operates a motor vehicle
on a public way or parking area:
A. Without being licensed. Violation of this paragraph is a Class E crime,
which is a strict liability crime
C. Without a license issued by this State if a resident of this State for more
than 30 days but fewer than 90 days. Violation of this paragraph is a traffic
infraction;
D. Without a license issued by this State if a resident of this State for more
than 90 days. Violation of this paragraph is a Class E crime, which is a strict
liability crime
E. With a license issued by this State that expired within the previous 90 days.
Violation of this paragraph is a traffic infraction.
PETITIONER makes imperative judicial notice that 29-A M.R.S. 1251 (1A) mandates every living man, woman and child over the age of sixteen (16) who
[w]ithin 30 days of becoming a resident of this Stateshall apply to obtain a
license in accordance with section 1301. Except as provided in section 510, subsection
1, a person who fails to comply with the requirement of this subsection and operates
a motor vehicle on a public way or parking area commits:
A. A traffic infraction if the person has been a resident for less than 90 days;
or
B. A Class E crime if the person has been a resident for at least 90 days.
Evidently as shown by 29-A M.R.S. 1251, when the word shall is used
without any qualifiers or exceptions, the definition must be taken literally and
within the boundaries of the plain meaning rule which does declares the possessing
and enjoying the use of a drivers license is not at all a privilege as this court and
other courts in this state have alleged and adjudicated.
There exists no absolute right to obtain and hold a driver's license. Opinion of
the Justices, 255 A.2d 643, 649 (Me.1969). The driver's license is a privilege to which
certain rights and responsibilities attach and for valid reasons involving public
safety may be granted or withheld. State v. Granville, 336 A.2d 861, 863 (Me.1975);
Opinion of the Justices, 255 A.2d at 649.
Petitioner claims 29-A M.R.S. 1251 violates the Maine Constitution, Article
1, Sections 1, 2, 3, 4, 5, 6, 6-A and 24 in that mandatory licensing under 29-A
M.R.S. 1251 prohibits private, unregulated and unalienable use of private
property on all public ways or parking areas without having physical possession of
a proper drivers license, and which applies to all private property defined as a
self-propelled vehicle not operated exclusively on tracks but does not include:
A. A snowmobile as defined in Title 12, section 13001;
GinA v. State of Maine, Appendix
85a
B. An all-terrain vehicle as defined in Title 12, section 13001, unless the allterrain vehicle is permitted in accordance with section 501, subsection 8 or is
operated on a way and section 2080 applies; and
C. A motorized wheelchair or an electric personal assistive mobility device.
Evidently, according to certain sections of Title 29-A of the Maine Revised
Statutes Annotated, it is a traffic infraction or a strict liability crime to obtain
private property as defined to be a self-propelled vehicle not operated exclusively on
tracks and to use it for its intended purpose outside the physical limits of the
owners private land without a proper drivers license even when that property is
not used for commercial purposes in compliance with 18 USC 31(6).
A public way are roads which are financed by, created by, maintained for
and used by sovereign people of this state by paying certain administrative fees,
taxes, surcharges, and remedial penalties for traffic infractions and strict
liability crimes.
RESPONDENT suspending PETITIONERs drivers license violates her
inherent unalienable right of possessing and enjoying private property in the
pursuit of and attempt to obtain basic safety and happiness into a traffic
infraction or strict liability crime depending solely on the length of time residence
is claimed to be within the boundaries of this state.
The alleged administrative record submitted by RESPONDENT on May 29,
2013 is inconsistent, contradictory and does not justify RESPONDENTs successive
repeated refusals to grant mandatory administrative hearings after being notified
by PETITIONER on March 18, 2013 that required notices and her actual knowledge
of authority and subject matter of the suspension, or her right to an administrative
hearing, did not occur until early March 2013.
RESPONDENTs repeated refusal to grant compulsory pre-suspension and
post-restoration administrative hearings despite the uncontested facts of the
administrative record was contrary to law in that it was based on an interpretation
inconsistent with statutory and constitutional duties, was made upon unlawful
procedure, was affected by bias or by error of law, was unsupported by substantial
evidence on the whole record and was arbitrary and capricious.
RESPONDENT cannot suspend or revoke any license with arbitrary and
capricious motives without a shred of evidence to support the suspension and
without first following strict procedural due process as strictly required by the
Constitution.
RESPONDENT issuing PETITIONER violation free credits for years 2008,
2009 and 2010 does not justify any type of license suspension because clearly no
evidence exists of unsafe operation, obvious incompetence or of being any type of
danger to the public immediately prior to the administrative suspension on January
5, 2010.
RESPONDENTs sole purpose for communicating with PETITIONER in
November and December 2009 was to induce PETITIONER to comply with an
obligatory medical evaluation which was not provoked by any adverse reports of
unsafe operation or incompetency and which was a blatant violation of
GinA v. State of Maine, Appendix
86a
PETITIONERs freedom of religion, freedom of speech, rights against selfincrimination, illegal search and seizure, due process and equal protection.
The administrative record shows that PETITIONER did not receive two (2)
notices sent by RESPONDENT in November and December 2009 requiring her
submission to the unconstitutional medical evaluation and then initiating an
indefinite suspension for failure to comply with the medical evaluation request.
The administrative record does not indicate RESPONDENT complied with 5
M.R.S. 9052, 5 M.R.S. 10003(1), 5 M.R.S. 10004(3), or 29-A M.R.S. 2482(1).
RESPONDENT coercively used 29-A M.R.S. 2458(2)(D) to compel
PETITIONER to fulfill a compulsory and unconstitutional medical evaluation and
coercively forced her to revise her mailing address which was clearly contrary to law
in that it was a blatant violation of PETITIONERs freedom of speech, right against
self- incrimination, illegal search and seizure and equal protection.
RESPONDENTs actions were based on an interpretation inconsistent with
clearly expressed statutory and constitutional duties, was made upon clearly
unlawful procedure, was affected by bias or by error of law, was not supported by
substantial evidence on the whole record and was clearly arbitrary and capricious.
PETITIONER affirms that, during a thorough and detailed review of the
record which was filed on May 29, 2013, PETITIONER noticed RESPONDENT has
submitted absolutely no evidence whatsoever to support or defend their
arbitrary and capricious actions suspending License #1491178 on January 5, 2010
under 29-A M.R.S. 2458(2)(D), stating PETITIONER Is incompetent to drive a
motor vehicle.
PETITIONER states that, as a matter of fact and which is abundantly
evidenced within the record as submitted by RESPONDENT, there IS evidence of
one or more of the following:
1. Governmental fraud.
2. Governmental complicity.
3. Governmental conspiracy to deprive PETITIONER of constitutionally
secured rights.
4. Intentionally or negligently falsifying or altering official public records.
5. Blatant incompetence or willful disregard for written laws, rules and
procedures.
PETITIONER outlines the following facts as filed with this court on May 29,
2013 by RESPONDENT,
Tab 2, Certified Driving Record, page 1 of STATE OF MAINEs certification
that the paper to which they attached is a true copy of the records of their office at
the DEPARTMENT OF STATE as sworn to by SECRETARY OF STATE Matthew
Dunlap on May 22, 2013 under the GREAT SEAL OF THE STATE OF MAINE.
It should be obvious to the reader that a serious discrepancy and error has
occurred in the maintenance of official motor vehicle records and which does in fact
significantly compromise the integrity of RESPONDENTs evidence and motivation
to prosecute PETITIONER.
It is evidenced within this record under Tab 2, Certified Driving Record, that
the RESPONDENT certified the PETITIONER was issued ONLY 2 YEARS
VIOLATION FREE CREDITS for years 2009 and 2010.
It is also evidenced within this record, in two distinct locations under Tab
3, BMV files, that the RESPONDENT certified the PETITIONER was in fact
properly issued 3 YEARS VIOLATION FREE CREDITS for years 2008, 2009
and 2010.
PETITIONER states that she was previously employed full time, in good
standing, by STATE OF MAINE, BUREAU OF MOTOR VEHICLE from January
2007 through April 2008 in the OUI/Habitual Offender Unit which did in fact afford
PETITIONER with expertise, a thorough education, comprehensive knowledge and
special skills to expertly and correctly assess a driver record and its individual line
items.
PETITIONER affirms that the information under Tab 3, BMV files, is
perfectly accurate.
PETITIONER alleges that the information under Tab 2, Certified Driving
Record, was intentionally falsified or negligently erroneous in order to weaken
PETITIONERs affirmative defenses and her likelihood of prevailing in this case
and its criminal companion case.
PETITIONER alleges that RESPONDENTs efforts to cloud the courts
judgment through filing deceptive and fraudulent records of evidence has been
unsuccessful in spite of their exacerbated efforts to prevent PETITIONER from
exercising her lawful, constitutionally-guaranteed rights.
The alleged administrative record shows that the violation free credit issued
for year 2010 was in fact issued on March 8, 2011 which is the same day
RESPONDENT restored the license without requiring reinstatement fees, civil
sanctions or administrative charges after PETITIONER filed a completed medical
evaluation from PETITIONERs doctor affirming minimal/no risk of unsafe
operation for any medical issues.
RESPONDENT restoring the license without reinstatement fees, civil
sanctions or any administrative charges and immediately issuing violation free
credits on March 8, 2011 for 2010 are two pieces of prima facie evidence that the
medical suspension is not now, and never has been, a traffic violation or strict
liability crime and which has no assigned civil or criminal penalty of any kind and
cannot be used as a prior offense under 29-A M.R.S. 2412-A.
Upon RESPONDENT restoring the license on March 8, 2011 with medical
affirmation of competency, PETITIONER demanded removal of all medical
restrictions from the license which were revealed to still be active many months
later violating the equal protection clause and requiring a second demand for
removal retroactive to March 8, 2011.
GinA v. State of Maine, Appendix
91a
2010 under Medical Rules 29-250 Ch. 3, 5 M.R.S. 10004(3) and 29-A M.R.S.
2458(2)(D) without any clear convincing evidence on the record, nor receiving
adverse reports or other indications of dangerous operation.
RESPONDENT knowingly and willfully violated protections of the Maine
Constitution when refusing, three times, to grant administrative hearings upon
PETITIONERs proper written requests in March and April 2013 at all times
indicating PETITIONERs demands were made untimely but without providing
clear and convincing evidence that PETITIONER had received actual notice or
knowledge on March 8, 2011 of her right to demand administrative hearings.
RESPONDENT knowingly violated protections of the Maine Constitution
when suspending license 1491178 for incompetency without clear evidence of
adverse operation, failing to provide notice or preliminary hearing, retaining
suspension beyond clearly stated statutory limitations, and refusing to provide
administrative hearings thrice demanded in March and April 2013.
Double jeopardy was effectively invoked when criminal charges were illegally
filed and successfully prosecuted on July 5, 2011 under 29-A M.R.S. 2412-A(1A)(A) via a coerced plea agreement resulting directly from the medical suspension of
January 5, 2010 and being the direct proximate cause for the pending action under
AUGSC-CR-12-286 and which prompted this 80C action.
STATEMENT OF ISSUES TO BE REVIEWED
1. WHETHER 29-A M.R.S. 1251, 29-A M.R.S. 2458(2)(D), 29-A M.R.S. 2412A(1-A)(A) AND MEDICAL RULES 29-250 CH. 3 VIOLATE MAINE
CONSTITUTION.
2. WHETHER THREE YEARS CONSECUTIVE VIOLATION FREE CREDITS
EARNED DIRECTLY PRIOR TO SUSPENSION IS EVIDENCE OF BEING A
THREAT TO PUBLIC SAFETY AND JUSTIFYING SUSPENSION UNDER
MEDICAL RULES 29-250 CH. 3, 5 M.R.S. 10004(3) AND 29-A M.R.S.
2458(2)(D).
3. WHETHER INCORRECT MAILING ADDRESS IS CLEAR CONVINCING
EVIDENCE OF INCOMPETENCY RISING TO THE LEVEL OF BEING A
THREAT TO PUBLIC SAFETY JUSTIFYING SUSPENSION UNDER MEDICAL
RULES 29-250 CH. 3, 5 M.R.S. 10004(3) AND 29-A M.R.S. 2458(2)(D).
4. WHETHER RESPONDENT ERRED WHEN THEY FAILED TO PROVIDE
PUBLIC NOTICE OF A THREAT TO PUBLIC SAFETY.
5. WHETHER RESPONDENT CONSULTED MEDICAL ADVISORY BOARD
PRIOR TO SUSPENDING LICENSE UNDER MEDICAL RULES 29-250 CH. 3, 5
M.R.S. 10004(3) AND 29-A M.R.S. 2458(2)(D).
APPENDIX W
STATE OF MAINE
KENNEBEC, ss
SUPERIOR COURT
CIVIL ACTION
Docket No. CR-12-286
STATE OF MAINE
v.
GINA TURCOTTE,
Defendant
Order
At the request of the defendant and without objection from the State, these
proceedings were stayed on 4/23/13 pending outcome of the defendant's Rule 80C
petition. The defendant continues to file motions, affidavits, and requests,
notwithstanding the stay. No further action will be taken in this case until a
decision is rendered on the Rule 80C petition.
The clerk is directed to incorporate this order into the docket by reference.
Date: May 28, 2013
APPENDIX X
STATE OF MAINE
SUPERIOR COURT
KENNEBEC, ss.
AUGSC-CR-2012-00286
STATE OF MAINE
Plaintiff
v
GINA LYNN TURCOTTE
Defendant
Addendum to Defendant's Affidavit in Support of Defendant's 2nd Motion
to Dismiss for Discovery and Due Process Violations
NOW COMES Defendant GINA LYNN TURCOTTE, and upon her own
knowledge, information, experiences and belief, and so far as upon her information
and belief, she believes this information to be true and correct, submits this
Addendum to Defendant's Affidavit in Support of Defendant's 2nd Motion to
Dismiss for Discovery and Due Process Violations.
During the evening of May 8, 2013, Defendant slowly and diligently sorted
through all of her compact discs looking for any evidence which may have been
previously provided by the Oakland Police Department.
Defendant did in fact find a single compact disc for part of the April 5, 2012
arrest by Ofc. Steven Corbett and Cpt. Rick Stubbert in Oakland which is saved on
Animation brand CD-R 700Mb disc. This disc appears to have only one audio file
with a recording that begins after Ofc. Steven Corbett and Cpt. Rick Stubbert had
already pursued, arrested, handcuffed and placed Defendant inside the patrol
vehicle.
Defendant made the observation that this audio did not capture how both
Ofc. Steven Corbett and Cpt. Rick Stubbert did in fact use excessive police power
against Defendant in multiple ways, namely, but not limited to, initiating an
unconstitutional traffic stop without sufficient probable cause of a lawful crime,
threat to destroy private property with a lethal weapon (tire iron, crow bar, etc.),
threat to commit bodily injury with a lethal weapon (special training and skills),
unlawful pursuit, drawing, pointing and threatening to use a lethal weapon
(firearm), terrorizing, criminal threatening, assault, wrongful arrest, kidnapping,
wrongful imprisonment, actual serious bodily injury, intentional infliction of
emotional distress, destruction of personal property, falsifying police records, willful
destruction of known exculpatory evidence, malicious prosecution, breach of public
trust, inter alia.
GinA v. State of Maine, Appendix
104a
Defendant made the obvious observation that this audio recording does not
visually illustrate the significant difference in physical stature between Defendant
and each officer, individually, as well as collectively. Defendant states that her
current weight and height is five (5) feet, five (5) inches and one hundred fifteen
(115) pounds. Defendant made the observation that Ofc. Steven Corbett stands
approximately five (5) feet, nine (9) inches and weighs no less than one hundred
eighty (180) pounds; and Cpt. Rick Stubbert stands approximately six (6) feet and
weighs no less than two hundred (200) pounds with a combined weight of about
three hundred eighty (380) pounds which is more than enough physical force to
successfully and easily subdue an unarmed petite female, without an actual threat
and intent to use a firearm.
Defendant states that she does not possess any knowledge of martial arts,
self-defense, specialized skills, nor any firearms which would give her an advantage
over and unknown to an attacker.
Defendant affirms that in fact she was in fear for her life during all
interactions with Ofc. Steven Corbett, beginning at 2:10pm on South Alpine Street
and which were in fact exacerbated and aggravated by Cpt. Rick Stubbert at
OneSteel Recycling when he drew and pointed his lethal weapon at Defendant, in
excessive use of his police power, without probable cause or clear and convincing
evidence of a substantial threat of harm or injury by Defendant.
Defendant restates the fact that all Law Enforcement Officers (LEO) knew,
or should have known, the mandatory minimum standards for collection and
preservation of LEO notes and records especially when the LEO activates blue
emergency lights, siren, engages pursuit or when the LEO suspects a controversy
will arise as to the material facts of the events leading up to and including arrest.
Defendant states two possible facts:
1. Ofc. Steven Corbett failed to have the proper equipment on his person or in
his patrol vehicle for the purpose of recording interactions with Defendant
which caused Ofc. Steven Corbett to request Cpt. Rick Stubbert provide an
audio recording device upon physical arrest of Defendant while on the
property of OneSteel Recycling, or
2. Ofc. Steven Corbett was carrying an audio recording device on his physical
person in his shirt pocket and could have, and should have, activated the
device upon the initial traffic stop on South Alpine Street which would have
captured the initial traffic stop, conversation, pursuit and actual physical
arrest of Defendant.
Defendant asserts that this incomplete audio file does not in any way satisfy
Defendant's request for the in-car camera and audio recordings that should have
been taken during the initial traffic stop on South Alpine Street, the subsequent
pursuit and physical arrest by Ofc. Steven Corbett and Cpt. Rick Stubbert at
OneSteel Recycling, or the missing standard video and audio recordings taken
during the booking process by the surveillance system installed within the Oakland
Police Department.
GinA v. State of Maine, Appendix
105a
As evidenced within Oakland Police Department Arrest Report 120AK-86AR, Narrative for Patrol Steven J Corbett, Page 1, paragraph 4, Ofc. Steven Corbett
indicates, "I told Ms. Turcotte that I had requested assistance and that if we had to,
we would break her window to remove her from the car. Ms. Turcotte would not
answer my questions and continued to cite law cases and accusing me of violating
her civil rights. I returned to my car and went to the trunk to get a door tool used to
unlock car doors. As I was walking back towards Ms. Turcottes [sic] car with the
door tool, she suddenly put her car in drive and sped away from the roadside. I
immediately got back into my car and advised my dispatcher that 'she just took off
on me'. I turned on my siren and proceeded to catch up with Ms. Turcotte as she
approached the intersection of South Alpine Street and Kennedy Memorial Drive.
Ms. Turcotte came to a stop at the intersection before pulling out While I was
following Ms. Turcotte, I still had my emergency lights and siren on. As we traveled
west on KMD, I observed Captain Stubbert approaching with his lights and siren on
Ayer Street ends and becomes a driveway into a private business, OneSteel, a metal
recycling operation."
Defendant avers that upon Ofc. Steven Corbett threatening to break her car
window to forcefully (and unconstitutionally) remove Defendant from her
automobile, Defendant did immediately envision her body being ripped to pieces by
being dragged across jagged edges of tempered window glass by Ofc. Steven Corbett.
Defendant avers that there was no way she could have known that Ofc. Steven
Corbett was going to retrieve a tool to allegedly unlock her car door instead of to
break her car window as Ofc. Steven Corbett had expressly threatened.
Defendant believed the item Ofc. Steven Corbett was bringing back from the
trunk of his patrol vehicle was a dangerous weapon that could be used to destroy
her property and cause grave bodily injury and possibly fatal harm. Defendant did
in fact believe she would be killed by Ofc. Steven Corbett if she did not leave the
scene for a safe public place with witnesses.
Defendant feared for her life and emergently decided to leave South Alpine
Street to find a safe public place to surrender under threat, duress and coercion
with unbiased witnesses causing her to choose the private property of OneSteel
Recycling because Defendant did in fact know surveillance video was in use and she
believed its close proximity to the Oakland Police station would confirm her selfdefense claim.
Pursuant to Pursuits and Response to Calls, Mandatory Training Topic 2011,
Prepared by Jim Birt, Maine Criminal Justice Academy Training Staff, Reviewed
by Brian MacMaster, Office of Attorney General, Sgt. Tom Baran, York Police
Department and instructed by Maine Criminal Justice Academy, on page 16, under
Criterion Test Questions, all LEO's MUST know MANDATORY pre-pursuit vehicle
check items which include, but are not limited to:
Emergency lights
Siren
Four-way flashers
Tire pressure
GinA v. State of Maine, Appendix
106a
Tire wear
In-car camera
Engine fluids
Radio checks - mobile and portable
Start engine - listen for unusual noises
Note: drive axle of cruiser. Front or rear wheel drive .
Pursuit termination device (spike mat) available
As evidenced within Oakland Police Department Arrest Report 120AK-86AR, Narrative for Patrol Steven J Corbett, Page 1, paragraph 4, Ofc. Steven Corbett
indicates, "After driving past the gates of One Steel and into their yard, Ms.
Turcotte turned left and came to a stop in front of one of the business' buildings ...
As I was getting out of my car, I observed Ms. Turcotte get out of her car and start
walking towards the rear of her car with her hands above her head.
As I came around the read of my car, I observed Captain Stubbert standing
between his vehicle and the rear of Ms. Turcotte's vehicle with his handgun drawn."
For the purpose of this affidavit and which should have been captured by incar camera and audio recordings, Defendant had already emerged from her private
automobile,_ before Cpt. Rick Stubbert emerged from his vehicle, walking in
surrender mode with both her hands over her head with her audio recording device
grasped tightly in her left hand, which was recording the entire interactions
beginning at the initial traffic stop on South Alpine Street, and which did capture
Cpt. Rick Stubbert scream "Get on the ground! Get on the ground NOW!" while
unnecessarily drawing and pointing his fully loaded lethal weapon at Defendant.
Cpt. Rick Stubbert's excessive use of police force did in fact cause Defendant
to fear she would be shot dead by Cpt. Rick Stubbert in the parking lot of OneSteel
Recycling.
Cpt. Rick Stubbert asked Ofc. Steven Corbett, "What the hell is going on
here?
Ofc. Steven Corbett in fact replied, "Oh it's a constitutional rights issue and I
just violated all of hers ... "
As evidenced by this audio recording taken by Ofc. Steven Corbett on a
handheld device, and in gross violation of LEO mandatory minimum standards for
collecting and preserving evidence, Ofc. Steven Corbett evidently made one or more
of these choices:
1. Ofc. Steven Corbett failed to acquire the necessary equipment to fulfill his
duties, or
2. Ofc. Steven Corbett failed to use the recording devices at the initial traffic
stop, or
3. Ofc. Steven Corbett intentionally destroyed the recordings of the initial
traffic stop.
As evidenced by the recording, it begins with a man saying, "Okay, you're
recording. Go ahead." and then a man said, "[inaudible] for the record. "
The next conversation occurs between Ofc. Steven Corbett and Defendant
when Defendant requires retrieval of her legal notebook, cell phone and recorder.
GinA v. State of Maine, Appendix
107a
Defendant told Ofc. Steven Corbett countless times to retrieve her legal notebook
which Ofc. Steven Corbett responds, "There's nothing in there that you need .... You
don't need it .... You don't need it where we're going."
As evidenced on the recording at the 1 minute 30 seconds mark, Defendant
can be heard insisting several times that Ofc. Steven Corbett retrieve her legal
notebook stating, "Officer, you are a public servant. Get my notebook! [inaudible/ ...
Please get my notebook"
As evidenced on the recording at the 2 minutes 35 seconds mark, Ofc. Steven
Corbett calls into dispatch reporting the beginning of transport of Defendant to
Oakland Police station with a beginning mileage of "203.2".
As evidenced on the recording at the 4 minutes mark, Ofc. Steven Corbett
calls into dispatch reporting the completed transport of Defendant to Oakland
Police station with an ending mileage of "203.5, indicating the final arrest location
was only (3/10ths) three-tenths of one mile, and 1 minute 25 seconds, away from the
Oakland Police station.
Defendant affirms that her need to find a safe public place to surrender
under threat, duress and coercion in the presence of unbiased witnesses caused her
to choose the private property of OneSteel Recycling because Defendant knew
surveillance video was in use and its close proximity to the Oakland Police station
would confirm her self-defense claim.
As evidenced on the recording, it is difficult to understand many things
Defendant says because Defendant was seated about 10 feet away from Ofc. Steven
Corbett's desk and the audio recording device was still located inside Ofc. Steven
Corbett's shirt pocket which caused many of Defendant's statements to be inaudible
but which does clearly capture Ofc. Steven Corbett's verbal statements, responsive
breathing patterns and occasional joyful whistling.
As evidenced on the recording at the 5 minutes 55 seconds mark, Defendant
notified Ofc. Steven Corbett of her lawful right to record all public servants in the
performance of their official duties as established in Simon Glik v. John Cunniffe et
al, No. 10-1764, United States Circuit Court of Appeals, First Circuit, August 26,
2011, and demanded that she be allowed to record the entire booking process with
her black Samsung audio recording device.
Ofc. Steven Corbett continually denied Defendant's demand through nonaction.
As evidenced on the recording at the 12 minutes 20 seconds mark, Defendant
asks Ofc. Steven Corbett if he has a copy of the Maine Law Enforcement Officer's
Manual 2008-2010 which Ofc. Steven Corbett replies, "No."
Defendant informed Ofc. Steven Corbett that, on page 4-11 of the Maine Law
Enforcement Officer's Manual 2008-2010, bottom of the page, it clearly indicates all
traffic stops of private automobiles does in fact automatically invoke protections of
the 4th Amendment.
For the purpose of this affidavit which Defendant did not iterate during the
booking process, page 4-11 states, in part, "With respect to private motor vehicles,
however, "[t]he law is settled that in Fourth Amendment terms a traffic stop entails a
GinA v. State of Maine, Appendix
108a
seizure of the driver "even though the purpose of the stop is limited and the resulting
detention quite brief." (citing Delaware v. Prouse) Brendlin v. California, U.S. , , 127
S.Ct. 2400, 2405-06, 168 L.Ed.2d 132, 138 (2007). Furthermore, the Brendlin case
held that when a police officer makes a traffic stop of a private vehicle, passengers
are seized within the meaning of the Fourth Amendment. The Court stated that "the
relationship between driver and passenger is not the same in a common carrier as it
is in a private vehicle, and the expectations of police officers and passengers differ
accordingly. In those cases, as here, the crucial question would be whether a
reasonable person in the passenger's position would feel free to take. steps to
terminate the encounter." U.S. at n. 6, 12 7 S. Ct. at 241 0 n. 6, 168 L.Ed.2d at 143 n.
6. It follows that "[p]assengers in a motor vehicle subjected to a traffic stop are
deemed seized for Fourth Amendment purposes and, thus, are entitled to challenge
the constitutionality of the stop." United States v. Brown, 500 F. 3d 48, 54 (1st Ci.J;.
2007)."
As evidenced in the recording at the 15 minutes 7 seconds mark Defendant
asked Ofc. Steven Corbett if Cpt. Rick Stubbert's firearm was a stun gun or a bullet
gun.
Ofc. Steven Corbett replied, 'Im not sure.
Defendant asked "You don't know if he had a bullet gun or a stun gun in his hand
when he drew it on me? I would think that you would know what kind of gun he was
holding."
Ofc Steven Corbett replied, "I was."
Defendant asked, "then what kind of gun was it?
Ofc. Steven Corbett replied, "what kind do you think?'
Defendant responded, "I don't know. Im not into guns ... was it a bullet gun
he drew on me?'
Ofc. Steven Corbett sharply replied, ''Yes, it was
As evidenced in the recording at the 17 minutes 55 seconds mark, Defendant
asks Ofc. Steven Corbett if their interactions were being recorded given that he
made effort to read the standard Miranda warnings.
Ofc. Steven Corbett replied, ''Yes."
Defendant can be heard throughout the booking process calling attention to
Maine Law Enforcement Officer's Manual 2008-2010 page 4-11 as quoted above, as
well as 17 M.R.S. 2931 Prohibition which states, "A person may not, by force or
threat of force, intentionally injure, intimidate or interfere with, or intentionally
attempt to injure, intimidate or interfere with or intentionally oppress or threaten
any other person in the free exercise or enjoyment of any right or privilege, secured to
that person by the Constitution of Maine or laws of the State or by the United States
Constitution or laws of the United States."
As evidenced in the recording at the 20 minutes and 25 seconds mark, Ofc.
Steven Corbett inappropriately and erroneously determined that Defendant was not
eligible for a bail bond which is prima facie evidence of Ofc. Steven Corbett's
negligent and improper use of the laws, rules and statutes of this state, and of his
GinA v. State of Maine, Appendix
109a
willful, malicious actions against Defendant and his blatant arrogant abuse of
power under color of law which caused severe injury.
As a direct result of Ofc. Steven Corbett's improper use of laws, rules and
statutes of this state, through his overt, covert and excessive abuse of power under
color of law, Defendant was kidnapped and wrongfully imprisoned totaling about 22
hours from time of arrest at 2:20pm April 5, 2012 until about 12:00pm April 6, 2012.
Bail bondsman Wayne Michaud did in fact authorize a cash bail bond of one
thousand five hundred dollars ($1,500.00) on April 6, 2012 which was secured by
Defendant's father.
As evidenced in the recording at the 21 minutes mark, Defendant clearly
informed Ofc. Steven Corbett that his actions did in fact constitute a violation of
Defendant's "civil rights" and that Ofc. Steven Corbett would be held personally
liable for his actions.
As evidenced in the recording at the 26 minutes 50 seconds mark, Defendant
asked Ofc. Steven Corbett, "So did you take an oath to uphold the Constitution?"
Ofc. Steven Corbett replied, "I did."
Defendant asked, "You did? Are you familiar with what the Constitution
says?'
Ofc. Steven Corbett said, "I am."
Defendant asked, "Are you? So why are you stopping people unlawfully who
are traveling peacefully in a private automobile and seizing their property and
arresting their body?"
Ofc. Steven Corbett replied, "I stopped you for not having an inspection
sticker."
Defendant responded, "which is not a crime."
Ofc. Steven Corbett stated, "It's a reason to stop you."
Defendant responded, "It's not a crime. You invoked the 4th and 14th Amendment
when you stopped me. It was not a crime, Officer. You just admitted that you did not
have probable cause to stop me. I was not committing a crime. You invoked the 4th
and 14th Amendment."
Ofc. Steven Corbett replied, "You were committing a traffic infraction."
Defendant declared, "It is not a crime, Officer!"
Ofc. Steven Corbett indicates in his written narrative that the "reason for the
stop was that she did not have an inspection sticker on her car." clearly violating the
foundational judicial opinion expressed on page 4-11 of the Maine Law Enforcement
Officer's Manual 2008-2010, "The Maine Supreme Judicial Court set out the
standard for stopping a moving automobile in State v. Rowe, 453 A.2d 134, 136 (Me.
1982). An officer may stop a moving automobile if he has specific and articulable
facts that, when combined with rational inferences from those facts, reasonably
warrant suspicion of criminal conduct by the occupants...."[emphasis added]
As evidenced in the recording at the 28 minutes mark, Defendant said, "I am acting
lawfully and you're not. You HAVE violated my rights. You said that. You admitted
it. You're still here admitting it and you're still gonna proceed with the unlawful
processing, uh, arrest. I hope you have a good insurance company. And I AM
GinA v. State of Maine, Appendix
110a
familiar with qualified immunity, and I AM aware that you don't have qualified
immunity when are sued individually, which is exactly what I am going to do . ...
You have as much responsibility for your actions as I have for my own. I have not
committed a crime. You admitted that. You said it was an infraction.... An infraction
is not a crime. You cannot arrest for an infraction. You might want to think about
this before you move any further."
As evidenced in the recording at the 32 minutes and 45 seconds mark,
Defendant asked Cpt. Rick Stubbert to retrieve a copy of Maine Law Enforcement
Officer's Manual 2008-2010.
Ofc. Steven Corbett rebutted, No one's going to read it!! No one's interested
in it!!"
As evidenced in many places throughout the entire audio recording,
Defendant adequately informed Ofc. Steven Corbett and others of the unequivocal
prohibition against violation of her constitutionally secured rights as memorialized
by 17 M.R.S. 2931.
As evidenced in the recording up to and beyond the 45 minutes and 50
seconds mark, Ofc. Steven Corbett intentionally, knowingly, willfully and
maliciously caused physical injury to Defendant's arms, shoulders and back by
forcing her to sit in one position with her hands secured in handcuffs behind her
back for the entirety without any specific articulable facts or clear and convincing
evidence that Defendant would be a threat if the handcuffs were removed, or if her
hands were placed in front of her body within handcuffs.
Defendant avers she posed no threat of injury to anyone regardless of
handcuffs.
Defendant asserts that she was not offered any hydration while Ofc. Steven
Corbett intentionally, knowingly, willfully and maliciously caused injury to
Defendant's general health by forcing her to wear her outer winter coat while
indoors during the heating season (on a day when outdoor temps did not exceed
forty two (42) degrees Fahrenheit in Waterville) thereby causing Defendant to
become dehydrated, overheated, faint, ill and physically weak.
As evidenced in the recording at the 48 minutes and 44 seconds mark,
Defendant was ordered to stand up while her hands were still secured behind her
back with handcuffs.
Defendant clearly stated, "I said I have a bad back. You understand it's
difficult for someone to stand up with their hands cuffed behind their back while
they have a bad back, correct?"
Defendant was offered assistance to stand up.
Defendant affirms that severe pain shot through her entire body as she stood
up and resulting from not being able to shift positions or relieve the tension on her
arms, shoulders and back caused by having her hands unnecessarily bound behind
her back for more than an hour.
Defendant can be heard audibly, genuinely and clearly expressing the
existence of severe pain through verbal sighs, gasps, moans and other expressions of
pain upon first standing, shifting her spine and moving her arms and shoulders.
GinA v. State of Maine, Appendix
111a
Defendant declares that Ofc. Steven Corbett knew, or should have known,
that his decision to leave the recording device inside his shirt pocket would in fact
distort or prevent any of Defendant's testimony from being clearly archived for
exculpatory evidence.
As evidenced in the recording at the 1 hour, 10 minutes, 50 seconds mark,
Defendant asked for Cpt. Rick Stubbert's full legal name.
Cpt. Rick Stubbert replied, "Just Captain."
Defendant rebutted, I can find it online. No problem. I'm pretty resourceful."
Defendant declares that Ofc. Steven Corbett did in fact 1) fail to record initial
traffic stop, pursuit and arrest with in-car camera and audio, 2) destroy Defendant's
independent exculpatory evidence at the final arrest location, 3) began recording
audio with a handheld recording device after arresting Defendant, 4) prevent
Defendant from recording the booking process in violation of law, 5) fail to record or
preserve entire booking process.
Defendant avers that Ofc. Steven Corbett's audio recording ended abruptly
at 1 hour 11 minutes after Defendant's last statement to Cpt. Rick Stubbert.
Defendant avers that her conversations with Ofc. Steven Corbett and Cpt.
Rick Stubbert continued despite lack of corroborating evidence.
Defendant avers that she has not found, nor believes she has ever been given
any other multimedia files by either police department, other than those already
specified.
Defendant declares that both Ofc. Steven Corbett and Cpt. Rick Stubbert's
failure to use their in-car camera and audio recorders during the entire incident
was unfair and prejudicial.
Defendant declares that Cpt. Rick Stubbert's did in fact use excessive police
power when he incorporated his firearm and pointed it at Defendant.
Defendant makes the observation that Cpt. Rick Stubbert did not collect or
maintain exculpatory evidence to defend his excessive use of police power and lethal
force which can be reasonably inferred to mean that if those events had been
recorded they would in fact validate all of Defendant's claims of unlawful conduct by
Ofc. Steven Corbett and Cpt. Rick Stubbert.
Defendant makes the observation that Ofc. Steven Corbett's initial
unconstitutional traffic stop provoked Ofc. Steven Corbett to threaten to unlawfully
break Defendant's window using unnecessary excessive force which were in fact the
causative factors provoking Defendant to leave South Alpine Street for self-defense
and protection which were in fact the causative factors provoking Cpt. Rick
Stubbert to join the pursuit which were in fact the causative factors provoking Cpt.
Rick Stubbert to integrate his firearm, draw it and point it at Defendant with
willful intention to intimidate Defendant under color of law with lethal harm.
Defendant does not have a violent criminal background.
Defendant has never been accused of resisting arrest by any Oakland officer.
Defendant restates judicial opinions from several United States Appeal
courts, to wit: The Fourth Amendment forbids stopping a vehicle even for the limited
purpose of questioning its occupants unless police officers have a founded suspicion
GinA v. State of Maine, Appendix
113a
of criminal conduct. -United States v. Salinas, 940 F.2d 392, No. 89-10350. United
States Court of Appeals, Ninth Circuit, citing United States v. Ramirez-Sandoval,
872 F.2d 1392, 1395 (9th Cir.1989).
"Founded suspicion must exist at the time the officer initiates the stop."-United States v. Thomas, 863 F.2d 622, 625 (9th Cir.1988).
Founded suspicion exists when an officer is aware of specific articulable facts,
that, together with rational inferences drawn from them, reasonably warrant a
suspicion that the person to be detained has committed or is about to commit a
crime. United States v. Cortez, 449 U.S. 411, 416-18, 101 S.Ct. 690, 694-95, 66
L.Ed.2d 621 (1981); United States v. Robert L., 874 F.2d 701, 703 (9th Cir.1989).
"The fact the restraint on [Defendant's] liberty was minimal does not make
the restraint a reasonable one. The Fourth Amendment applies to all seizures of the
person including those consuming no more than a minute. (United States v.
Brignoni-Ponce, supra, 422 U.S. at pp. 879-880 [45 L.Ed.2d at pp. 615-616].) People
v. Spicer, 157 Cal.App.3d 213 [Crim. No. 45072. Court of Appeals of California,
Second Appellate District, Division Seven. June 15, 1984.]
The Fourth Amendment, of course, "applies to all seizures of the person,
including seizures that involve only a brief detention short of traditional arrest."
When the officers detained appellant for the purpose of requiring him to identify
himself, they performed a seizure of his person subject to the requirements of the
Fourth Amendment. -Brown v. Texas (citing Davis v. Mississippi) 394 U.S. 721
(1969); Terry v. Ohio) 392 U.S. 1, 392 U.S. 16-19 (1968)." [W]henever a police officer
accosts an individual and restrains his freedom to walk [or drive] away, he has
seized "that person," id. at 392 U. S. 16, and the Fourth Amendment requires that
the seizure be "reasonable." [Meaning reasonable suspicion of criminal activity].
United States v. Brignoni-Ponce, 422 U. S. 873, 422 U. S. 878 (1975).
Even assuming that purpose is served to some degree by stopping and
demanding identification from an individual without any specific basis for believing
he is involved in criminal activity, the guarantees of the Fourth Amendment do not
allow it. When such a stop is not based on objective criteria, the risk of arbitrary
and abusive police practices exceeds tolerable limits." -Delaware v. Prouse, at 440 U.
S. 661.
... the detainee is not obliged to respond." Berkemer v. McCarty, 468 U.S. 420
(1984). Shapiro v. Thompson, (1969) 394 US 618:
"This Court long ago recognized that the nature of our Federal Union and
our constitutional concepts of personal liberty unite to require that all citizens be
free to travel throughout the length and breadth of our land uninhibited by statutes,
rules, or regulations which unreasonably burden or restrict this movement. That
proposition was early stated by Chief Justice Taney in the Passenger Cases, 7 How.
283, 492 (1849):630.
"For all the great purposes for which the Federal government was formed, we
are one people, with one common country. We are all citizens of the United States;
and, as members of the same community, must have the right to pass and repass
through every part of it without interruption, as freely as in our own States"
GinA v. State of Maine, Appendix
114a
Defendant again swears that she was in fact in fear for her life during all
interactions with Ofc. Steven Corbett, beginning at 2:10pm on South Alpine Street
and Cpt. Rick Stubbert at OneSteel Recycling when he drew and pointed his lethal
weapon at Defendant, in excessive use of their police power, without probable cause
or clear and convincing evidence of a substantial threat of harm or injury by
Defendant. Defendant's background does not substantiate the officers' need to use
excessive force and they both knew it at time of arrest.
Defendant declares that Oakland Police Department's failure to deliver instation video and audio booking surveillance recordings is unfair, prejudicial and in
violation of due process.
Defendant affirms and swears upon her own knowledge, information,
experiences and belief, and so far as upon her information and belief, she believes
this information to be true and correct but it does not represent an exhaustive allinclusive itemization of information.
DATED in Augusta, Maine this 17th day of May 2013.
In Peace,
GINA LYNN TURCOTTE
APPENDIX Y
STATE OF MAINE
SUPERIOR COURT
KENNEBEC, ss.
AUGSC-CR-2012-00286
STATE OF MAINE
Plaintiff
v
GINA LYNN TURCOTTE
Defendant
Defendant's 2nd Affidavit in Support of Defendant's 2nd Motion to Dismiss
for Discovery and Due Process Violations
NOW COMES Defendant GINA LYNN TURCOTTE, and upon her own
knowledge, information, experiences and belief, and so far as upon her information
and belief, she believes this information to be true and correct, submits this 2nd
Affidavit in Support of Defendant's 2nd Motion to Dismiss for Discovery and Due
Process Violations.
All Law Enforcement Officers (LEO) knew, or should have known, the
mandatory minimum standards for preservation of LEO notes and records
adopted January 11, 2012, "Preservation of Recording and Notes: The LEO
conducting the custodial interrogation or the case LEO is responsible for preserving
the recording and investigative notes and records specifically related to the recording
as part of the investigative file until such time as the defendant pleads guilty, is
convicted, sentenced, direct appeal is exhausted, waived or procedurally defaulted,
...All investigative notes kept or retained must be filed with the case. These notes are
generally discoverable."
All Law Enforcement Officers (LEO) knew, or should have known, the subject
matter of the Maine Constitution, Maine Revised Statutes Title 17-A and Title 29A, all pertinent rules in Maine Rules of Evidence, all pertinent rules in Maine Rules
of Criminal Procedure, inter alia.
The District Attorney and its legal assistants can be presumed to be well
educated about the Maine Constitution, Maine Revised Statutes, Maine Rules of
Civil Procedure, Maine Rules of Criminal Procedure, and Maine Rules of Evidence,
inter alia, to a degree sufficient to guarantee their compliance and their knowledge
of penalties for all violations thereof.
Exculpatory evidence comes in various forms. It may be witness testimony,
real evidence or an object from the crime scene, or security video footage.
Exculpatory evidence may be real or documentary, direct evidence or circumstantial
evidence, testimony or a physical exhibit presented in court. If it tends to show the
defendant might not be guilty of the crime, it is "exculpatory".
GinA v. State of Maine, Appendix
118a
In Brady v. Maryland, the U.S. Supreme Court held that if the district
attorney has access to exculpatory evidence, he is required to share that evidence
with the defense. Failing to disclose the information to the defense may result in the
case being thrown out in a motion to dismiss, as a mistrial, or being overturned on
appeal. The Supreme Court based this ruling on the due process clauses of the
Constitution, holding that part of a district attorney's responsibility to seek justice
is to make sure that all evidence, not just evidence that supports the district
attorney's case, is available at trial without the Defendant having to fight for it.
Exculpatory evidence must be handed over to the defendant even if the
district attorney or police believe the evidence is not very solid. In the state of
Maine, a rule is established under M.R.Crim.P. Rule 16(a)(3) which requires the
district attorney to deliver all exculpatory evidence within 10 days from date of
arraignment, which the district attorney has blatantly violated.
On February 17, 2012, the District Attorney, by and through the Augusta
Police Department via email to Lt. Read from Defendant, was put on notice that all
discoverable materials for Defendant's arrest made on February 16, 2012 was being
demanded, specifically including "a true copy of the raw audio/video recording, as
well as any other records I am lawfully permitted to receive". Lt. Read replied, "Any
request for 'discoverable materials' will have to be through the District Attorney's
office ... " indicating Lt. Read's official acknowledgment of Defendant's lawful
demand to receive all exculpatory evidence and discoverable materials.
This email notification was sufficient to inform the District Attorney that
Defendant would be demanding production of each and every discoverable piece of
evidence in both of these cases without exception.
It is reasonable to conclude Defendant expected to receive any and all records
which may be perceived as exculpatory which she is lawfully permitted to receive in
both cases.
A proper discovery request was filed on April 10, 2012 by Defendant's first
court-appointed counsel, Stephen Bourget, specifically requesting "all books, papers,
documents, photographs, (including motion pictures or video tapes), tangible objects
...
On or about August 27, 2012 Defendant filed a Motion to Dismiss for Lack of
Standing; Failure to Follow Due Process of Law; Violation of Constitutionally
Protected Rights demanding a dismissal with prejudice stating the Plaintiff lacks
standing to prosecute, has violated or has permitted the violation of due process of
law, and has violated Defendant's constitutionally protected rights.
Defendant was not given a prompt and appropriate hearing on her Motion to
Dismiss.
On or about October 2, 2012 Defendant filed a Request for Discovery
specifically requesting the following discoverable items from the District Attorney
which included two (2) individual identical requests each referencing the involved
police department.
Defendant believes she erred in her specific articulation of the police
department in one of the requests intending to state the arrest of February 16, 2012
GinA v. State of Maine, Appendix
119a
by the Augusta Police Department and its individual officers but mistakenly
referring to April 5, 2012 by Oakland Police Department and its individual officers,
as follows:
1. All dispatch audio between Officer Corbett, Captain Stubbert and Oakland Police
Dispatch on April 5, 2012.
2. All dispatch written transcripts between Officer Corbett, Captain Stubbert and
Oakland Police Dispatch on April 5, 2012.
3. All dashcam video recordings taken from Officer Corbett's cruiser on April 5,
2012.
4. All dashcam audio recordings taken from Officer Corbett's cruiser on April 5,
2012.
5. All dashcam video recordings taken from Captain Stubbert's SUV on April 5,
2012.
6. All dashcam audio recordings taken from Captain Stubbert's SUV on April 5,
2012.
7. All audio recordings from Officer Corbett's handheld mp3 recorder.
8. All audio recordings from Captain Stubbert's handheld mp3 recorder.
9. All booking video from Oakland Police Department on April 5, 2012.
10. All booking audio from Oakland Police Department on April 5, 2012.
11. All booking and surveillance video from Kennebec County jail from April 5, 2012
at/around 3pm through April 6, 2012, 12:00pm.
12. All booking and surveillance audio from Kennebec County jail from April 5, 2012
at/around 3pm through April 6, 2012, 12:00pm.
13. All internal email messages, written literature, documentation and official
training materials from Oakland Police Department regarding "sovereign
citizens" (a misnomer).
It is reasonable to conclude the Defendant expected to receive identical
records from the Augusta Police Department as those specified above which may be
perceived as exculpatory.
Defendant has received the following discovery items from the District
Attorney:
1. Augusta Police Department, Arrest Report 12002-460-0F,
2. Augusta Police Department booking video, February 16, 2012
3. Augusta Police Department booking audio, February 16, 2012
4. Oakland Police Department, Arrest Report 120AK-86-AR.
Defendant still has not received the following discovery items for
both arrests:
1. dispatch audio regarding Defendant's arrests in both cases,
2. written transcripts of dispatch audio in both cases,
3. all internal email messages and written communications about "sovereign
citizens" from both police departments,
4. all official training materials regarding "sovereign citizens",
GinA v. State of Maine, Appendix
120a
with the Chief about the numerous violations by the Augusta Police Department
officers of Defendant's rights which had been consistently occurring and was once
again occurring with Ofc. Peter Cloutier.
Defendant states that she directed Ofc. Peter Cloutier to leave her home
several times by saying, "You do not have my permission to enter. You need to leave,
NOW."
Defendant states that Ofc. Peter Cloutier falsely. threatened that he was
going to obtain a search warrant as he left Defendant's property but which he failed
to do.
Defendant states that she suspected Ofc. Peter Cloutier was staking out her
property hoping to witness Defendant in a public place at which time Defendant
would not have the same protections that her private domicile provides; therefore,
as a direct result of Ofc. Peter Cloutier's actions, Defendant felt like a virtual
prisoner in her home without due process or probable cause which was
intentionally, prejudicially and fraudulently imposed upon Defendant and condoned
through non-action by Sgt. Christopher Shaw.
Defendant states that although she was significantly emotionally and
physically distressed, she immediately created an email message attaching the
audio recording of Ofc. Peter Cloutier which was sent to Chief Robert Gregoire of
Augusta Police, several law enforcement individuals in the sheriff's office, select
local and state representatives, Timothy Cason, and two news reporters at two local
newspapers.
Defendant states that she did in fact create a video from the audio recording
and uploaded the file to YouTube for public viewing o~ January 19, 2012 with the
title, Peter Cloutier, Augusta Maine Police, violated My 4th Amend. Rights" which
has received 1,384 views.
Defendant and Timothy Cason met with Sgt. Christopher Shaw on January
25, 2012, which was wholly recorded and now published publicly on YouTube and
other video sharing websites, discussing specific details of Ofc. Peter Cloutier's
unlawful behaviors and essentially authenticating the audio file sent to Augusta
Police Department; and discussing how Defendant wanted to proceed against Ofc.
Peter Cloutier for his unprofessional conduct.
Defendant states that she did in fact reserve her right to file a civil lawsuit
for economic and non-economic damages pending disciplinary sanctions issued by
Sgt. Christopher Shaw.
Defendant states she demanded an immediate internal investigation which
was commenced and completed by Sgt. Christopher Shaw and Major Jared Mills on
or about February 21, 2012 stating, On January 18th 2012, Officers Cloutier and
Drouin met with you in response to a complaint they received from your neighbor.
During the course of their investigation Officer Cloutier began to question you in
reference to the odor of marijuana he believed he smelled coming from your
apartment. You filed a complaint with the Chief of Police in regards Officer
Cloutier's behavior during this incident. Sergeant Shaw investigated the incident
and determined that Officer Cloutier did in fact act inappropriate in regards to his
GinA v. State of Maine, Appendix
123a
demeanor, and the way in which he questioned you. Due to the fact that Officer
Cloutier's behavior was unprofessional, sanctions have been taken against him and
his behavior has been corrected. I want to apologize on behalf of Officer Cloutier and
the Augusta Police Department for this unfortunate situation you had to endure.
Thank you for bringing this incident to our attention, and please contact me if you
have any issues with the Augusta Police Department in the future. If you have any
questions or if you would like to discuss this situation in person or by telephone
please let me know and I will make myself available upon your request. Major Jared
Mills"
Defendant states Sgt. Christopher Shaw did in fact, as evidenced above, find
Ofc. Peter Cloutier guilty of unprofessional conduct and violating Defendant's
constitutionally secured rights against unlawful search and seizure on January 18,
2012.
Defendant states that she has never been informed of the disciplinary
sanctions issued against Ofc. Peter Cloutier referenced in the aforementioned
message from Major Jared Mills.
Defendant alleges that Sgt. Christopher Shaw did not sanction nor
discipline Ofc. Peter Cloutier for the unlawful intrusion and criminal trespassing
upon Defendant's private domicile under false pretenses, citing fraudulent probable
cause, and in fact using excessive physical force against Defendant in order to enter
Defendant's domicile.
Defendant states that Major Jared Mills and Sgt. Christopher Shaw do in
fact condone through their non-action, support and encourage the use of excessive
physical force, improper application of laws, rules and statutes, regular destruction
of evidence, falsifying police reports, and general violation of Defendant's
constitutionally secured rights, inter alia.
Defendant alleges Sgt. Christopher Shaw of the Augusta Police Department
did in fact intentionally and knowingly destroy exculpatory evidence on February
16, 2012 of his and his officers' improper, excessively forceful and unlawful actions
which were evidenced and preserved on Defendant's personal handheld mp3
recorder which was in Sgt. Christopher Shaw's personal possession while Defendant
was in police custody.
Defendant discovered upon her immediate release from police custody on
February 16, 2012 while standing outside the Augusta Police Department, in the
company of and witnessed by Clark Leach and Timothy Cason, that the audio
recording taken of the entire interaction between the Augusta Police Department
and Defendant was in fact manually deleted.
Defendant, Clark Leach and Timothy Cason immediately went directly to
Defendant's residence where Defendant checked again and confirmed that the
recording was in fact deleted by or under the direction of Sgt. Christopher Shaw.
Defendant showed Clark Leach and Timothy Cason that the file was in fact
deleted and then proceeded to use file recovery software which allowed her to
successfully recover parts of the deleted mp3 audio file. Defendant successfully and
sequentially joined the parts together into one file of which the contents and
GinA v. State of Maine, Appendix
124a
Defendant affirms that she did in fact intentionally, knowingly and willfully
activate the recording device upon the initial traffic stop by Ofc. Steven Corbett on
South Alpine Street in Oakland on April 5, 2012, 2:10pm.
Defendant states the Oakland Police Department did in fact use excessive
force with prejudicial and malicious motives on April 5, 2012 in that Ofc. Steven
Corbett threatened to break Defendant's car window in order to forcefully extract
Defendant from the automobile because Ofc. Corbett suspected Defendant to be a
"sovereign citizen" and a person of high risk for firearm possession and violent
actions without any specific evidence that Defendant posed any risk of harm or
bodily injury to Ofc. Steven Corbett.
Defendant states that her physical build is currently 5 feet, 5 inches in
height, one hundred fifteen (115) pounds in weight, and who opposes firearms and
all violence. Defendant obviously posed no risk of injury, bodily harm or threat to
Ofc. Steven Corbett.
Defendant affirms that her decision to leave the original location of the
Oakland traffic stop on South Alpine Street was provoked by her fear of grave
bodily injury and possibly fatal harm which Ofc. Steven Corbett had maliciously
threatened and the fact that they were in a deserted residential neighborhood with
no witnesses and that Defendant was scared for her life and feared that Ofc. Steven
Corbett would fatally assault her if he was successful in breaking her car window
and forcefully extracting her without any public oversight or supervision.
Defendant states that her decision to leave the scene of the original traffic
stop on South Alpine Street was in her desperate effort to find a safe public place
where she could voluntarily surrender, under threat, duress, and coercion, to Ofc.
Steven Corbett without the risk of being fatally injured or assaulted and without
unbiased witnesses.
Defendant decided to travel back in the direction of the Oakland Police
Department, and in fact passed by the police station on her way to the final arrest
location, in an effort to display her fear-provoked need to find a publicly safe place
to show that she had no intention of fleeing or escaping arrest. In fact, Defendant
intentionally travelled down a dead end road past the police department into a
private commercial parking lot which she knew used surveillance video cameras
with the expectation that the incident would be recorded by their surveillance
system.
Defendant states that she traveled and parked safely and emerged from the
car holding the black Samsung audio recording device in her left hand which was
actively recording audio at the time of Defendant's arrest and which was in the air
above her head along with her right hand in an act of submission.
Defendant states that Cpt. Rick Stubbert unnecessarily and without probable
cause drew his firearm and pointed it at Defendant with intention to intimidate her
with grave bodily injury while screaming, "Get on the ground!! Get on the ground
NOW !'
Defendant states that she heard Cpt. Rick Stubbert ask Ofc. Corbett, "what
the hell is going on here??" which Ofc. Corbett replied, "Oh it's a constitutional
rights issue and I just violated all of hers...
Defendant states Cpt. Rick Stubbert personally incorporates and condones
the use of excessive force, unnecessary and improper use of a firearm, officers'
violation of Defendant's constitutionally secured rights, falsifying police reports,
destruction of evidence, inter alia.
Defendant states that she observed Ofc. Steven Corbett and Cpt. Rick
Stubbert attempting to turn off the audio recording device but appeared to have
difficulty understanding how to release the "hold" which protected any interruption
of the current active recording.
Defendant alleges Ofc. Steven Corbett and/ or Cpt. Rick Stubbert of the
Oakland Police Department, acting together and/ or individually, did in fact
intentionally and knowingly destroy exculpatory evidence of their improper,
excessively forceful and unlawful actions which were evidenced and preserved on
Defendant's personal handheld audio recorder which was in Ofc. Steven Corbett's
and/ or Cpt. Rick Stubbert's personal possession while Defendant was in police
custody on April 5, 2012.
Defendant communicated with Ofc. Steven Corbett during the entire booking
process at Oakland Police Department clearly, explicitly and adequately informing
him of the unlawful arrest and detention he had just committed against her giving
him an opportunity to correct his mistakes.
Defendant specifically asked Ofc. Steven Corbett if the firearm that Cpt. Rick
Stubbert pulled and pointed at her was a bullet gun or a stun gun. Ofc. Steven
Corbett replied that it was a bullet gun.
Defendant explicitly, clearly and adequately informed Ofc. Steven Corbett
that his unlawful and malicious actions were captured on her audio recording device
and that Defendant was going to upload it to YouTube upon her release from
custody.
Defendant states that she was told by Ofc. Steven Corbett that their
conversation was also being captured by his handheld audio recording device at
which time he patted his shirt pocket indicating that was where the device was
located.
Defendant discovered upon her immediate release from police custody on
April 6, 2012 that the audio recording of the entire interaction between the Oakland
Police Department and Defendant on her Samsung audio recording device had in
fact been manually deleted.
Defendant used file recovery software which did not successfully recover any
evidence of Ofc. Steven Corbett's and/ or Cpt. Rick Stubbert's unlawful behaviors
because Ofc. Steven Corbett and/or Cpt. Rick Stubbert did in fact successfully delete
and completely destroy the audio recording which would have shown that Ofc.
Corbett and Cpt. Stubbert did in fact act outside of their statutory authority,
without jurisdiction to arrest or detain, with excessive force, in violation of
Defendant's constitutionally secured rights, without probable cause that a lawful
GinA v. State of Maine, Appendix
127a
crime had been, was about to be, or was being committed, and in violation of this
state's laws, rules and statutes.
Defendant affirms that Kennebec County Jail intake inventory list of
Defendant's possessions dated April 5, 2012 does in fact show that Defendant
possessed a black Samsung audio recording device.
Defendant again alleges that Ofc. Steven Corbett and/or Cpt. Rick Stubbert
of the Oakland Police Department, acting together and/or individually, did in fact
intentionally and knowingly destroy exculpatory evidence of their improper,
excessively forceful and unlawful actions which were evidenced and preserved on
Defendant's personal handheld mp3 recorder which was in Ofc. Steven Corbett's
and/or Cpt. Rick Stubbert's personal possession while Defendant was in police
custody on April 5, 2012.
Defendant states that Ofc. Steven Corbett did in fact issue a fraudulent
Uniform Summons and Complaint for OAS, supported by Ofc. Steven Corbett's own
statement made within Oakland Police Department Arrest Report 120AK-86-AR,
Page 2, middle of the bottom paragraph, "Ms. Turcotte was initially issued a USAC
for OAS, but after she was taken to Kennebec County jail, I realized that her OAS
was for failure to pay fines and fees, which she should have been given a VSAC for."
Defendant states that Ofc. Steven Corbett indicates in the police report
120AK-86-AR, Page 2, end of the bottom paragraph, "Ms. Turcotte signed each
summons, 'TDC'. When I asked what 'TDC' stood for, Ms. Turcotte stated, 'threat
duress, coercion'."'
Defendant states that Ofc. Steven Corbett indicates in police report 120AK86-AR, Page 2, middle of the bottom paragraph, "Throughout the booking process,
Ms. Turcotte continued to accuse me of violating all her civil rights and maintaining
that I had conducted an illegal stop and thus an unlawful arrest. The entire booking
process was recorded, see enclosed CD.
Defendant states that Oakland Police Department's continued, willful and
intentional failure to produce the raw audio and video recordings of the booking
process is a gross and substantial violation of Defendant's right to receive prompt
unedited exculpatory discovery.
Defendant affirms that she has never received any CD of the booking process on
April 5, 2012 from District Attorney, Oakland Police Department or from her standby counsel.
Defendant alleges that the failure of both the Augusta Police Department and the
Oakland Police Department to properly deliver raw, unedited video and audio of the
initial traffic stop, the subsequent pursuit, and arrest and detention of Defendant
can be reasonably inferred to indicate the evidence either was not properly collected
and maintained or was in fact manually, purposefully and willfully destroyed.
Defendant alleges that all law enforcement officers involved in these cases
did in fact violate their internal mandatory minimum standards for collection and
preservation of evidence with the knowledge that their actions would have
substantial negative implications on Defendant's ability to properly defend her
actions in these matters.
GinA v. State of Maine, Appendix
128a
Defendant states that two distinct Requests for Discovery were sent on or
about October 2, 2012 to the District Attorney regarding individual cases AUG-CR2012-286 and AUG-CR-2012-667 (which has been joined with AUGSC-CR-2012-286)
itemizing an extensive list of evidence Defendant is requesting from both the
Augusta and Oakland police departments.
Defendant states that she requested a hearing on her Motion to Dismiss plus
other motions in a letter to the court dated October 5, 2012 notifying the court, in
part, that, "Proceeding with any jury selection at this juncture would be a gross
violation of constitutional due process, a gregarious waste of court time and
resources, and would also provide Defendant with several valid grounds for appeal
to a higher court."
Defendant states that the court did not schedule a proper hearing as
requested.
Defendant states she received two (2) discovery packages from the District
Attorney in late November 2012, one for each arrest, both consisting of the
respective arrest records and supplemental background data. Defendant also
received multiple copies of the booking video and audio from Augusta Police
Department dated February 16, 2012.
Defendant has never received any audio or video from Oakland Police
Department nor any other supplemental evidence as requested.
Defendant was given a brief opportunity on February 11, 2013 to argue her
Motion to Dismiss at which time the court rejected her claims and sustained
AUGSC-CR-2012-286 for trial.
Defendant filed another Request for Discovery, individually in each case, with
the District Attorney in a letter dated March 4, 2013 specifically itemizing an
extensive, but not all-inclusive, list of requested exculpatory evidence from both
police departments and county jail.
Defendant states that Oakland Police Department has knowingly and
willfully failed to produce the audio and video footage of the April 5, 2012 booking
process, which Ofc. Steven Corbett reported did in fact exist, for the purpose of
concealing their unlawful behavior.
Defendant states the District Attorney has failed to produce all the requested
evidence after repeated specific written requests without a reasonable and lawful
explanation.
Defendant states the District Attorney has not provided any acceptable
reasons for the unlawful exclusion of exculpatory evidence except to indicate the
evidence does not exist.
Defendant states the police officers' failure to properly collect, maintain,
preserve and deliver all requested, and unrequested, exculpatory evidence is a
blatant violation of their mandatory minimum standards for collection and
preservation of evidence, records and notes, as well as a blatant and gross violation
of this state's laws, rules and statutes regarding production of, or providing a
reasonable explanation for missing, exculpatory evidence.
GinA v. State of Maine, Appendix
129a
Defendant states that it was improper for the District Attorney to only
provide the name of the agency who produces the materials and failing to provide
the actual training materials, because Defendant will now have to issue a subpoena
to the contracted agency in order to gain access to these exculpatory records which
is a gross and blatant violation of the District Attorney's obligation under
M.R.Crim.P. 16(a)(3) to provide ALL EXCULPATORY EVIDENCE which may, or
may not, be requested and retained on site within 10 days of arraignment.
Defendant states the undisputed fact that Ofc. Christopher Guay has failed
to produce the email message regarding "sovereign citizens" which Ofc. Christopher
Guay mentioned in his arrest report 12002-460-0F, specifically, "I had recently read
an email containing a picture of a similar license plate that read 'USDOT' on top
and 'Private Peaceful' on the bottom."
Defendant restates an official statement made by Ofc. Christopher Guay as
recorded in arrest report 12002-460-0F, Page 2, middle of first paragraph, to wit, "I
then informed Turcotte that if she did not exit the vehicle she would also be charged
with refusing to submit to arrest."
Defendant states the undisputed fact that Ofc. Christopher Guay did in fact
arrest and charge Defendant with a crime which Ofc. Christopher Guay knew, or
should have known, was improper and unsubstantiated, specifically the crime of
"Refusing to submit to arrest when Ofc. Christopher Guay knew, or should have
known, that Defendant had not committed any offense to justify a charge under
that section, to wit:
1. A person is guilty of refusing to submit to arrest or detention ~t with the
intent to hinder, delay or prevent a law enforcement officer from effecting the
arrest or detention of that person, the person
A Refuses to stop on request or signal of a law enforcement officer.
B. Uses physical force against the law enforcement officer. or
C. Creates a substantial risk of bodily injury to the law enforcement
officer.
Defendant states the undisputed fact that no evidence exists within the
arrest report 12002-460-0F or any other records to indicate Defendant had "refused
to stop on request', "used physical force against the law enforcement officer', or that
Defendant had "created as substantial risk of bodily injury to anyone involved in the
arrest and detention.
Defendant states the undisputed fact that the charge of "refusing to submit to
arrest or detention" within arrest report 12002-460-0F and criminal complaint
AUGSC-CR-2012-286 is more prima facie evidence of prejudicial and malicious
behavior by Ofc. Christopher Guay and Sgt. Christopher Shaw in their attempt to
maliciously prosecute Defendant for actions that are not lawful crimes.
Defendant states the logical fact that both police departments would have
preserved the in-car camera "dashcam" video and audio recordings if the Defendant
had committed any aggressive or violent action against the officers knowing full
well raw video and audio evidence is virtually irrefutable.
GinA v. State of Maine, Appendix
131a
Defendant states the logical fact that if the video and audio evidence was
beneficial to the District Attorney's case, it is reasonable to conclude that both
police departments would take special care to preserve and deliver that evidence in
a timely fashion to support their case.
Defendant states the obvious fact that the District Attorney and the police
departments are attempting to apply only those laws, rules and statutes which
benefit their actions but are requiring Defendant to comply with every written law,
rule and statute and even those laws, rules and statutes that do not exist (i.e.
operating after administrative medical suspension).
Defendant affirms and swears upon her. own knowledge, information,
experiences and belief, and so far as upon her information and belief, she believes
this information to be true and correct but it does not represent an exhaustive allinclusive itemization of information.
DATED in Augusta, Maine this 2nd day of May 2013. GINA LYNN TURCOTTE
APPENDIX Z
STATE OF MAINE
SUPERIOR COURT
KENNEBEC, ss.
AUGSC-CR-2012-00286/AUGSC-CR-2012-00667
STATE OF MAINE
Plaintiff
v.
GINA LYNN TURCOTTE
Defendant
adverse operation, without having clear and sufficient evidence of a health or safety
hazard, and without the advice of the Medical Advisory Board or any other
competent medical professional. Additionally, Plaintiff maintained the
administrative medical suspension for 397 days beyond the statutory limitations as
imposed by 5 M.R.S. 10004(3) Action without Hearing which states:
Notwithstanding the provisions of sections 10003 and 10051, an agency may
revoke, suspend or refuse to renew any license without proceedings in conformity
with subchapters IV or VI, when:
3. Health or safety hazard. The health or physical safety of a person or the
continued well-being of a significant natural resource is in immediate
jeopardy at the time of the agency's action, and acting in accordance with
subchapter IV or VI would fail to adequately respond to a known risk,
provided that the revocation, suspension or refusal to renew shall not
continue for more than 30 days.
Plaintiff initially suspended license# 1491178 under the statutory authority
of 29-A M.R.S. 2458(2)(D) citing incompetence; therefore, it is reasonable that
Plaintiff was also invoking 5 M.R.S. 10004(3) Action without Hearing because of
the alleged potential danger allegedly caused by Defendant's continued operation;
but which also places clear restrictions on Plaintiff's statutory authority and their
irrevocable duties to Defendant.
On February 10, 2011, Augusta Police Officer Eric DosSantos initiated a
traffic stop without jurisdiction or any evidence that a crime had been, was being, or
was about to be committed, and which resulted in Defendant being released from
the scene after being issued a Violation Summons and Complaint for failure to obey
a traffic control device. Officer DosSantos did not indicate in any way nor inform
Defendant that license #1491178 was suspended or revoked.
On March 7, 2011, which was four hundred twenty seven (427) days after the
administrative medical suspension began, Augusta Police Officer Eric DosSantos,
without jurisdiction or any evidence that a crime had been, was being, or was about
to be committed, affected a traffic stop and twice asked Defendant if her license was
suspended which Defendant twice denied; this communication served as
Defendant's first actual notice of the administrative medical suspension only.
Officer DosSantos asked Defendant if she knew any reason the Medical Unit at
Bureau of Motor Vehicle would have to suspend the license which Defendant
declined any knowledge and insisted the license should be active.
Officer DosSantos advised Defendant that she was being served with two (2)
Uniform Summons And Complaints under 29-A M.R.S. 2412-A(1-A)(A) (for
February 10, 2011 and March 7, 2011) with a court appearance for April 13, 2011.
Officer DosSantos and Defendant discussed the medical suspension at length
at which time Officer DosSantos indicated there was a possibility the District
Attorney's office would dismiss both complaints upon Defendant immediately
GinA v. State of Maine, Appendix
134a
providing proof that the medical suspension was properly terminated. Defendant
called a friend for a ride from traffic stop to her residence at which time she
immediately contacted the Medical Unit at Bureau of Motor Vehicle but because of
the lateness of the day, Defendant was unable to contact her physician's office until
the next day.
On March 8, 2011, Defendant fulfilled Plaintiffs request for a medical
evaluation by submitting a declaration signed by Defendant's physician that
Defendant, in fact, was not under the influence of any medications nor did her mild
medical conditions cause any known difficulty to her safely operating any type of
automobile.
At no time on March 7th or 8th, 2011, or at any time thereafter, during
Defendant's conversations with the employees in the Medical Unit at Bureau of
Motor Vehicle, did Defendant receive any type of notice that she was entitled to an
administrative hearing or that the license had been suspended for incompetency
without any adverse report or the advice of the Medical Advisory Board.
Effectively, all medical restrictions against license # 1491178 were
terminated on March 8, 2011.
Plaintiff did not require Defendant to remit any reinstatement fee nor
surrender to any other civil sanctions, administrative remedies or criminal
penalties.
Plaintiff deleted the administrative medical suspension from record
#1491178 on March 8, 2011.
Plaintiff properly issued a "violation free credit" on March 8, 2011 for the
calendar year 2010.
Defendant personally contacted the District Attorney's office immediately
upon Plaintiff administratively reinstating license # 1491178 asking that the
USAC's be dismissed with prejudice, which the District Attorney explicitly rejected.
Defendant had no reason to know the Assistant District Attorney Steve
Parker would knowingly and passionately prosecute Defendant for actions not
defined as any type of crime under the Maine Constitution or laws of this state, and
that Defendant would be continually intimidated, coerced and threatened with
excessive and punitive fines, wrongful imprisonment and a continued violation of
her liberties if she did not plead guilty to at least one of the USAC's issued on
March 7, 2011.
Defendant has expressly reserved and continues to expressly reserve all of
her natural and common law rights as protected and guaranteed by the federal and
Maine Constitutions, on and for the record, nunc pro tunc.
On July 5, 2011, Defendant submitted a certified copy of driving record
#1491178 to the court which was printed and certified by Plaintiff on July 5, 2011
clearly showing that no suspension existed on February 10, 2011 (AUGDC-CR2011-513) nor on March 7, 2011 (AUGDC-CR-2011-512), but the District Attorneys
office willfully and knowingly refused to accept Plaintiffs true and certified records
issued by Plaintiff on that day as evidence of Defendants innocence.
GinA v. State of Maine, Appendix
135a
Defendant repeatedly expressed to the court that she had not received notice
nor did she have actual knowledge of any suspension until March 7, 2011 and that
all charges must be dismissed for Plaintiff's failure to comply with notice
requirements under 29-A M.R.S. 2412-A(l-A)(A) which specifies:
1-A. Offense; penalty. A person commits operating while license suspended or
revoked if that person:
A. Operates a motor vehicle on a public way or in a parking area when
that person's license has been suspended or revoked, and that person:
(1) Has received written notice of a suspension or revocation
from the Secretary of State or a court;
(2) Has been orally informed of the suspension or revocation by a
law enforcement officer or a court;
(3) Has actual knowledge of the suspension or revocation;
(4) Has been sent written notice in accordance with section 2482
or former Title 29, section 2241, subsection 4; or
Driving record# 1491178 clearly shows evidence of two failed notices, lack of
evidence to support a suspension for incompetence nor any other kind of violation,
and, in fact, the administrative medical suspension was not an offense of any kind
as evidenced by no reinstatement fee and the violation free credit issued on March
8, 2011.
Plaintiff's records clearly prove that proper notices were not served pursuant
to 29-A M.R.S. 2482(3) which clarifies "The notice is deemed received 3 days after
mailing, unless returned by postal authorities."
Because both notices were returned to Plaintiff by the United States Postal
Service, Plaintiff cannot claim that proper notices were either sent or received by
Defendant because those notices were returned to Plaintiff by postal authorities
effectively nullifying any notices Plaintiff attempted to serve.
DELETE DATE ENTRY DATE ACTION DATE
DESCRIPTION
010109
123108
111009
111009
122909
122909
010110
123109
110109
010510
030811
RESTORED: 03/08/11
030811
123110
Despite both the District Court and the Assistant District Attorney having
clear evidence that continued prosecution of Defendant was suspect, the court
knowingly accepted a coerced plea agreement from Defendant for one violation of
29-A M.R.S. 2412-A (1-A)(A) for the offense dated February 10, 2011 docketed
under AUG-CR-2011-513. Defendant expressly reserved all her natural and
common law rights, on and for the record, and expressly indicated that her
acceptance of the plea agreement was being made under threat, duress and
coercion. Nonetheless, the court entered a guilty verdict and assessed a $250 fine
and a 60-day license suspension.
On December 19, 2011, Defendant was attending to unrelated civil personal
business at district court at which time she was ordered by Judge Beth Dobson to
answer a bench warrant for failure to pay the fine assessed on July 5, 2011.
Defendant indicated that her refusal to pay the fine was a peaceful civil protest for
the illegal and improper prosecution of a non-crime which was pursued in express
violation of the statutes of this state. Judge Dobson ordered Defendant to pay the
fine or immediately be arrested and taken to jail. Defendant once again expressly
reserved all her natural and common law rights and indicated her payment of the
fine was made under threat of being kidnapped, duress, intimidation and coercion
by the court. Judge Dobson indicated that she took exception to Defendant's use of
the word "kidnapped"; Defendant responded that she took exception to being
threatened with being kidnapped for peacefully and civilly protesting something
that was not a crime.
Defendant has been attempting to exhaust her lawful and procedural
remedies for the unlawful prosecution of AUG-CR-2011-513 through Defendant
filing a Petition for Post-Conviction Review on July 6, 2012 which was summarily
dismissed by Justice William Anderson on September 13, 2012 and filed with this
court on September 1, 2012, followed up by Defendant's Motion to Reconsider
Petition for Post-Conviction Review dated and filed on October 5, 2012 which was
denied by Justice William Anderson on October 31, 2012 and filed Defendant claims
that Justice Anderson's denial for post-conviction review was made with this court
on November 5, 2012 without having all the necessary facts and evidence describing
the improper basis and lack of required notices for the administrative medical
suspension because that administrative action was not reviewable under Justice
Anderson's jurisdiction at the time the petition for post-conviction review was filed.
At the time of her petition for post-conviction review Defendant was still
unaware of her right to request an administrative hearing to challenge the integrity
of the administrative medical suspension, nor did Defendant know the specific
statutory authority and subject matter of the administrative medical suspension
until March 2013 which was discovered during her review of evidence for pending
cases docketed as AUG-CR-2012-286 and AUG-CR-2012-667.
On March 18, 2013, Defendant sent her first request for an administrative
hearing to Plaintiff which was rejected by Assistant Director Susan Cole on March
GinA v. State of Maine, Appendix
137a
20, 2013 citing no statutory authority for her rejection and only that Defendant's
"current suspensions" do not allow for an administrative hearing with the agency.
On March 28, 2013, Defendant sent her second demand for an administrative
hearing clarifying the administrative medical suspension was commenced
improperly, without sufficient evidence to support the suspension, without required
notices and in violation of due process which was addressed and sent directly to
Robert O'Connell, Director of Legal Affairs, Adjudications and Hearings.
On April 2, 2013, Mr. O'Connell rejected Defendant's demand for an
administrative hearing specifying, "Your request for an administrative hearing on a
license suspension of which you became knowledgeable two years ago and that was
terminated two years past is denied as untimely."
On April 8, 2013, Defendant sent her third demand for an administrative
hearing and notice of violation of procedural due process to Plaintiff again
demanding an administrative hearing and the opportunity to review the evidence
which supported Plaintiff's decision to suspend license #1491178 without notice or
opportunity for preliminary hearing.
On April 10, 2013, Mr. O'Connell rejected Defendant's demand for an
administrative hearing specifying, "I am in receipt of your correspondence of April
8, 2013 in response to my letter of April 2, 2013 to you denying your request for an
administrative hearing. As I advised you in that letter, my decision represents final
agency action in this matter. You may seek judicial review of this final agency
action pursuant to the provisions of 5 M.R.S. 11001-11008."
At no time has Plaintiff disputed or contested any facts as set forth in the
record including the facts stated above. Nor has Plaintiff presented any other facts
or evidence in considering and denying Defendant's statutory demands.
Plaintiff has abused their discretion by suspending license #1491178 without
sufficient and clear evidence and in violation of procedural due process, and then
improperly denying Defendant's right to an administrative hearing upon the
unfounded presumption that Defendant's actual knowledge of her right to an
administrative hearing was properly given by Plaintiff.
Plaintiff improperly suspending license# 1491178 has resulted in Defendant
being abusively prosecuted under 29-A M.R.S. 2412-A (1-A)(A) for actions which
are protected and secured by the Maine constitution and which do not constitute
any type of civil or_ criminal violation and docketed as AUG-CR-2011-512 (violation
date March 7, 2011) and AUG-CR-2011-513 (violation date February 10, 2011).
Defendant is being required to defend herself against 'criminal' charges in
this court for 'operating after suspension' which are all based on an improper
administrative medical suspension from January 2010 which was not known until
March 7, 2011 and a coerced plea agreement from July 5, 2011.
Defendant has been consistently asserting that the administrative medical
suspension from January 2010 was commenced without clear evidence of
incompetency, without the advice and consult of the Medical Advisory Board,
without proper notices and in clear violation of the administrative suspension
process.
GinA v. State of Maine, Appendix
138a
APPENDIX AA
STATE OF MAINE
SUPERIOR COURT
KENNEBEC, ss.
AUGSC-CR-2012-00286/AUGSC-CR-2012-00667
STATE OF MAINE
Plaintiff
v
GINA LYNN TURCOTTE
Defendant
2nd Motion to Dismiss for Discovery and Due Process Violations with
Incorporated Memorandum of Law in Support
NOW COMES Defendant GINA LYNN TURCOTTE and moves this court to
dismiss, with prejudice, all seven charges in both cases against her for the STATE
OF MAINE's continuing and aggravated violations of Defendant's constitutionally
secured right to due process and prompt compulsory discovery of all exculpatory
evidence, regardless if the Defendant directly requested the evidence or not.
Fourteen (14) months into AUGSC-CR-2012-00286 and twelve (12) months into
AUGSC-CR-2012-00667 have now passed and the STATE OF MAINE has failed to
completely produce compulsory exculpatory evidence pursuant to M.R.Crim.P. Rule
16(a)(3), "Discovery shall be provided to a defendant charged with a Class D or Class
E crime in District Court within 1 0 days of arraignment."
Defendant's constitutionally secured right to due process has been blatantly
trampled and abused by the Plaintiff in that their failure to promptly provide
exculpatory evidence within the 10 day compulsory timeframe pursuant to Rule
16(a)(3) has caused the Defendant's inability to receive a significant proportion of
video and audio evidence showing the Plaintiff did in fact act outside of their
authority and beyond statutory provisions and constitutional protections in both
cases.
Defendant has independent audio footage from AUGSC-CR-2012-00286
which was under the Plaintiff's control for a significant portion of time which will
corroborate Defendant's claim that Plaintiff and their agents did not maintain, did
in fact attempt to destroy, and did in fact destroy, a significant portion of
exculpatory evidence which would show a jury that Plaintiff's actions were in fact
outside of their authority and beyond statutory provisions and constitutional
protections of this state.
"It is a well-established and long-standing principle of law that a party's
intentional destruction of evidence relevant to proof of an issue at trial can support
an inference that the evidence would have been unfavorable to the party responsible
for its destruction. See, e.g., Nation-Wide Check Corp. v. Forest Hills Distributors,
692 F.2d 214, 217-18 (1st Cir.1982) ... In order for an adverse inference to arise from
GinA v. State of Maine, Appendix
142a
the destruction of evidence, the party having control over the evidence must have
had an obligation to preserve it at the time it was destroyed. This obligation to
preserve evidence arises when the party has notice that the evidence is relevant to
litigation - most commonly when suit has already been filed, providing the party
responsible for the destruction with express notice, but also on occasion in other
circumstances, as for example when a party should have known that the evidence
may be relevant to future litigation. See Turner, 142 F.R.D. at 72-73;" Kronisch v.
United States, United States Court of Appeals, Second Circuit, 1998
Additionally, all Law Enforcement Officers (LEO) knew or should have
known the mandatory minimum standards for preservation of LEO notes and
records as adopted January 11, 2012, "Preservation of Recording and Notes: The
LEO conducting the custodial interrogation or the case LEO is responsible [or
preserving the recording and investigative notes and records specifically related to
the recording as part o[the investigative tile until such time as the defendant pleads
guilty, is convicted, sentenced, direct appeal is exhausted, waived or procedurally
defaulted; ... All investigative notes kept or retained must be filed with the case.
These notes are generally discoverable."
Neither Augusta or Oakland police department, nor their individual officers,
nor the various Assistant District Attorneys who have worked. on this case can
claim good cause for their gregarious failure to follow the rules of procedure and due
process which they expect and require the Defendant to strictly obey. The time has
come for this court to thoroughly review all the evidence on the record and dismiss
all seven (7) charges with prejudice and with sanctions against the Plaintiff.
I. PROCEDURAL HISTORY OF DEFENDANT'S MOTIONS FOR
DISCOVERY AND MOTION TO DISMISS
a. On February 17, 2012 Defendant sent an email to Lt. Read of the Augusta Police
Department requesting raw audio/video recording, as well as any other records I
am lawfully permitted to receive, that were taken during the booking process
yesterday. Lt. Read replied that "any request for 'discoverable materials' will have
to be through the District Attorney's Office."
b. On February 28, 2012 Plaintiff provided Defendant with a pink document
entitled Automatic Discovery which does not sufficiently satisfy Defendant's
discovery request. Defendant is unsure if the purpose for this form is Defendant's
request for discovery from Plaintiff or if this is Plaintiff's discovery statement.
c. On April 12, 2012 Stephen Bourget filed a discovery request on Defendant's
behalf 8 which included "all books, papers, documents, photographs (including
motion pictures or video tapes), tangible objects...
d. On August 27, 2012 Defendant filed a Motion to Dismiss for Lack of Standing;
Failure to Follow Due Process of Law; Violation of Constitutionally Protected
Rights; Statement of Facts, Points and Authorities in Support moving this court to
dismiss all charges with prejudice on the grounds that the Plaintiff lacks standing
to prosecute, has not followed or has permitted its agents to violate due process of
law and has violated Defendant's constitutionally protected rights. Defendant was
not given a prompt and complete hearing on this Motion.
GinA v. State of Maine, Appendix
143a
p. A review of the extensive evidence in this case of Defendant's innocence and the
blatantly incomplete discovery which has now culminated in the destruction of
exculpatory evidence should easily lead the court to the conclusion that both these
cases must be dismissed because the Plaintiff's failure to follow due process, their
agents' knowing and willful destruction of or failure to maintain compulsory
discoverable evidence and the severity of the prejudice that has been shown during
the past fourteen months undeniably supports the extreme sanction of a complete
dismissal with prejudice.
q. This extreme case requires an extreme response by the court with the sanction of
a dismissal because the allegedly skilled and knowledgeable Assistant District
Attorneys and Law Enforcement Officers obviously failed to fulfill their obligations
thereby trampling all over Defendant's constitutional protected rights which has
caused Defendant irreparable harm causing both economic and non-economic
injuries including but not limited to wrongful imprisonment, double jeopardy, and
gross violations of many amendments to the Bill of Rights including but certainly
not limited to the 4th, 5th, 6th Amendments.
III. MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
"The general principles concerning the inferences to be drawn from the loss or
destruction of documents are well established. When the contents of a document are
relevant to an issue in a case, the trier of fact generally may receive the fact of the
document's nonproduction or destruction as evidence that the party which has
prevented production did so out of the well-founded fear that the contents would
harm him. Wigmore has asserted that nonproduction is not merely "some" evidence,
but is sufficient by itself to support an adverse inference even if no other evidence for
the inference exists:
The failure or refusal to produce a relevant document, or the destruction of it,
is evidence from which alone its contents may be inferred to be unfavorable to
the possessor ...
2 Wigmore on Evidence 291, at 228 (Chadbourn rev. 1979) (emphasis added). The
inference depends, of course, on a showing that the party had notice that the
documents were relevant at the time he failed to produce them or destroyed them.
The adverse inference is based on two rationales, one evidentiary and one not.
The evidentiary rationale is nothing more than the common sense observation that a
party who has notice that a document is relevant to litigation and who proceeds to
destroy the document is more likely to have been threatened by the document than is
a party in the same position who does not destroy the document. The fact of
destruction satisfies the minimum requirement of relevance: it has some tendency,
however small, to make the existence of a fact at issue more probable than it would
otherwise be. See Fed.R.Evid. 401. Precisely how the document might have aided the
party's adversary, and what evidentiary shortfalls its destruction may be taken to
redeem, will depend on the particular facts of each case, but the general evidentiary
rationale for the inference is clear.
GinA v. State of Maine, Appendix
145a
The other rationale for the inference has to do with its prophylactic and
punitive effects. Allowing the trier of fact to draw the inference presumably deters
parties from destroying relevant evidence before it can be introduced at trial. The
inference also serves as a penalty, placing the risk of an erroneous judgment on the
party that wrongfully created the risk."
Fundamental error is shown when "the Government's evidentiary
suppression undermines confidence in the outcome of the trial."' Kyles v. Whitley,
115 S. Ct. 1555, 1566 (1995).
Brady and Due Process Violations:
It is well settled that the government has the obligation to turn over evidence
in its possession that is both favorable to the accused and material to guilt or
punishment. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); United States v. Agurs,
427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83, 87 (1963).
Under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States,
405 U.S. 150, 153-154 (1972), the Due Process Clause is implicated when the
government destroys evidence that might have proved favorable to a criminal
defendant; see also, United States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir. 1993),
cert. denied, 114 S. Ct. 2714 (1994); see also Fed. R. Crim.P. 16(a)(1)(C) (discovery
relating to documents material to defense); 16(c) (continuing duty to disclose).
The U.S. Supreme Court has developed a two-pronged test that turns upon
whether or not the good faith of the government actors involved must be considered
in determining whether failure to disclose evidence is a violation of the rights of due
process or "what might loosely be called the area of constitutionally guaranteed
access to evidence." United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982):
(1) Clearly Exculpatory Evidence: If the missing evidence is shown to be
exculpatory, the Defendant's rights to fundamental fairness under the due process
are violated, regardless of the good or bad faith of the state actors involved. Brady v.
Maryland, 373 U.S. 83 (1963). Suppression by the prosecution of evidence favorable
to an accused violates the Defendant's rights of due process where the evidence has
been requested by the accused and is material either to the guilt or punishment
irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland
(1963), 373 U.S. 83,87 83 S.Ct. 1194,_ 10 L.Ed.2d 215,_).
In order to mount a successful Brady challenge, a defendant must establish
that "the evidence is material, that is, that 'there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would
have been different.' United States v. Bagley, 473 U.S. 667,682, 105 S.Ct. 3375,
3383, 87 L.Ed.2d. 481 (1985)." United States v. Marshall, 109 F.3d 94,97 (1st Cir.
1997).
Although courts have used different terminologies to define "materiality," the
U.S. Supreme Court has determined that evidence is material if there exists a
"reasonable probability" that its disclosure to the defense would have changed the
result of the trial. Kyles v. Whitley,_ U.S._,_, 115 S. Ct. 1555, 1566 (1995); United
States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383 (1985).
GinA v. State of Maine, Appendix
146a
several reasons: first, "the officers here were acting in "good faith and in accord with
their normal practice," id. at 488, quoting Killian v. United States, 368 U.S. 231,
242 (1961); second, in the light of the procedures actually used, the chances that
preserved samples would have exculpated the defendants were slim, 467 U.S. at
489; and, third, even if the samples might have shown inaccuracy in the tests, the
defendants had "alternative means of demonstrating .their innocence." Id. at 490.
In relying upon Trombetta and several other cited cases for deciding that the
issue turned upon the good or bad faith of the state actors involved, the Supreme
Court in Arizona v. Youngblood explained that it was unwilling to read the
fundamental fairness requirement of the Due Process Clause, see Lisenba v.
California, 314 U.S. 219, 236 (1941), as imposing on the police an undifferentiated
and absolute duty to retain and to preserve all material that might be of conceivable
evidentiary significance in a particular prosecution.
The Court concluded that in order to establish a due process violation
through the loss or destruction of "potentially useful" evidence (as distinguished
from Brady's standard that dealt with "(clearly exculpatory" evidence), the
defendant is required to show bad faith on the part of the police, limiting the finding
of a due process violation resulting from the loss of merely potentially useful, but
not provably exculpatory, evidence to ''those cases in which the police themselves,
by their conduct, indicate that the evidence could form a basis for exonerating the
defendant." Arizona v. Youngblood, 448 U.S. 51 (1988).
The Sixth Amendment also guarantees the right to effective assistance of
counsel in criminal prosecutions. McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970). There is a narrow category of cases in which prejudice to the defendant's
Sixth Amendment right to effective assistance of counsel is presumed. Strickland v.
Washington, 466 U.S. 668 (1984). The presumption applies when there has been an
"[a]ctual or constructive denial of the assistance of counsel altogether." Strickland,
466 U.S. at 692; see Rauter v. U.S., 871 F.2d 693, 697 (7th Cir. 1989) (denial of
counsel at evidentiary hearing held to withdraw guilty plea prejudiced defendant);
and when there are "various kinds of state interference with counsel's assistance,"
Strickland, 466 U.S. at 692. In this case, misrepresentation and deliberate
concealment and then destruction of evidence by the government has prevented
[Defendant] from being able to adequately prepare his defense and has deprived
[Defendant] of exculpatory and possibly exculpatory, relevant and probative
evidence, in clear violation of his rights to due process and to adequate assistance of
counsel.
The U.S. Supreme Court has also recognized that prosecutorial misconduct
may "so infec[t] the trial with unfairness as to make the resulting conviction a
denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). To
constitute a due process violation, the prosecutorial misconduct must be "of
sufficient significance to result in the denial of the defendant's right to a fair trial."
United States v. Bagley, 473 U.S. 667, 676 (1985) (quoting United States v. Agurs,
427 U.S. 97, 108 (1976)).
GinA v. State of Maine, Appendix
148a
To determine a Brady violation, the Court must first determine that a due
process violation has occurred by the loss or destruction of evidence that is provably
exculpatory to the defendant. If it was clearly exculpatory, then it must also be
material and not cumulative. If these conditions are met, then the Court need look
no further, the Defendant's rights of due process have been violated.
If the evidence was not provably exculpatory, but merely potentially useful, it
must also be material and not cumulative. If these conditions are met, the Court
must determine whether the police acted in bad faith, to determine whether the
defendant's due process rights are implicated under the Arizona v. Youngblood
standard.
If the Court finds a due process violation under either standard, because the
evidence is missing or destroyed, there is no possibility of a trial or of preventing or
curing the due process violation in a trial or re-trial. The only remedy is dismissal of
the charge against the defendant. This dismissal is not a sanction against the
government, rather, it is the preservation of the Defendant's right to fundamental
fairness as articulated by the Fifth due process clause and the Sixth Amendment
right to present a defense and to confront witnesses, which the Court is bound by
law to uphold, pursuant to Article VI, Section 2 of the Constitution of the United
States.
This textbook example of failure to maintain or destruction of evidence, and
continued violations of due process does in fact merit the prophylactic and punitive
effects of a dismissal with prejudice to send the strong message that no
constitutional violations are acceptable none will be tolerated by anyone.
WHEREFORE, Defendant moves this court to DISMISS WITH PREJUDICE
all seven (7) 2 charges in cases AUG-CR-2012-286 and AUG-CR-2012-667 for the
aforementioned reasons.
DATED in Augusta, Maine this 22nd day of April 2013. In Peace,
GINA LYNN TURCOTTE
3 WASHINGTON STREET PLACE, UNIT 1
AUGUSTA, MAINE
Matthew Dunlap
Secretary of State
APPENDIX BB
Department of
the Secretary of State
BUREAU OF MOTOR VEHICLES
Patty A. Morneault
Deputy Secretary of State
Robert E. O'Connell, Jr.
Director of Legal Affairs,
Adjudications & Hearings
APPENDIX CC
April 8, 2013
Robert E. O'Connell, Jr., Director
Legal Affairs, Adjudications & Hearings
Bureau of Motor Vehicles, Hearing Section
101 Hospital Street
Augusta, Maine 04333
RE: License Number/Class: 1491178/C
CDL: NO OUI: NO ENDORSEMENTS: NONE
Notice printed: December 17, 2009
Notice USPS RETURNED: December 28, 2009
ADMINISTRATIVE SUSPENSION Effective: January 5, 2010
ADMINISTRATIVE SUSPENSION Restored: March 8, 2011
ADMINISTRATIVE SUSPENSION Reason:
FAILURE TO COMPLY WITH MEDICAL EVALUATION REQUEST
Notice Of Violation Of Procedural Due Process
OBJECTION TO YOUR REFUSAL TO GRANT
ADMINISTRATIVE HEARING for ADMINISTRATIVE MEDICAL SUSPENSION
Dear Bob:
Your letter dated April 2, 2013 refusing to grant an administrative hearing
for the prior administrative medical suspension from January 5, 2010 as being
requested untimely is a blatant violation of "procedural due process", as defined by
Black's Law, 9th Edition, "The minimal requirements of notice and a hearing
guaranteed by the Due Process Clauses of the 5th and 14th Amendments, esp. if the
deprivation of a significant life, liberty, or property interest may occur."
As previously indicated, your assistance is required to resolve an improper
administrative medical suspension which was commenced in violation of due process
of laws, without sufficient evidence to support the suspension, and without proper
notices being served prior to the effective date of the suspension of January 5, 2010.
The records in this matter clearly show that Secretary of State failed to follow
procedural due process in the improper administrative medical suspension of license
1491178; therefore, an administrative hearing must be granted without further
delay.
GinA v. State of Maine, Appendix
151a
the pending suspension so I could properly resolve the incorrect mailing address
and immediately complete the medical evaluation showing that no potential
dangers existed.
Driving record 1491178 shows that, in fact, no potential dangers existed "at
the time of the agency's action" as evidenced by the Driver Medical Evaluation dated
March 8, 2011, which states, "Current prescribed medications: None" and the
Functional Ability Profile indicates "none/minimal' adverse reactions resulted from
the indicated medical diagnoses of "Bipolar Disorder" and "Malnutrition".
Further exculpatory evidence will show that all psychiatric medications were
in fact completely terminated in late 2006.
Secretary of State has no evidence "that ... continued operation of a motor
vehicle presents a potential danger' "at the time of the agency's action' because
VIOLATION FREE CREDITS were in fact issued for consecutive years 2008, 2009
and 2010.
Secretary of State cannot claim that required notices were properly served
and received because driving record 1491178 shows notices were returned
undeliverable by the postal service on 111009 & 122809, and there is no evidence
that the Secretary of State posted any public notices to satisfy the notification
requirement.
When notices are returned undeliverable and public notices are not posted,
Secretary of State knows, or should have known, that the person has no knowledge of
the notice because Secretary of State did not post required public notices in an effort
to notify the person.
There is no evidence that Secretary of State posted required notices pursuant
to 5 M.R.S. 9052.
Actual knowledge of the request for medical evaluation and subsequent
suspension ONLY did not occur until March 7, 2011 when Augusta Police Officer
Eric DosSantos gave verbal notice during an unconstitutional traffic stop.
Secretary of State's request for medical evaluation was satisfied on March 8,
2011 with a favorable medical evaluation effectively nullifying all medical
restrictions and restoring license 1491178 without reinstatement fees or limitations.
DMV employees DID NOT advise me on March 8, 2011, nor at any time
thereafter, of my right to request a hearing.
A copy of MD-LT-18 was not received nor reviewed until March 2013 thereby
preventing receipt and actual knowledge of the statutory authority, subject matter
and hearing rights as provided by Maine statutes.
Knowledge of my right to a hearing was not known until March 2013.
A timely request for an administrative hearing was impossible due to lack of
actual notice or knowledge of the medical evaluation request, notice of suspension,
statutory authority, subject matter and hearing rights as guaranteed by law.
In preparation for a full administrative hearing, you are required to answer
the following questions completely and with specificity.
ANSWER THE FOLLOWING QUESTIONS:
1.
Provide the date and time the medical restriction was entered on driving
record 1491178.
2.
Provide the name of the person who entered the medical restriction on record
1491178.
3.
List names of all employees, date and time each employee accessed Driving
Record 1491178 and action initiated, beginning January 1, 2006 through present
day, which are preserved in the Driving record's log of events.
4.
Show proof of recent explicit behavior occurring prior to March 7, 2011
clearly indicating incompetency which "presents a potential danger as evidenced by
Driving Record 1491178.
5.
Specify how three (3) years of consecutive VIOLATION FREE CREDITS
serves as substantial factual evidence of incompetency for medical reasons.
6.
Specify how failure to update a mailing address serves as substantial factual
evidence of incompetency to operate a motor vehicle for medical reasons.
7.
Provide the names of all Medical Advisory Board members who were
consulted prior to suspending license 1491178 without preliminary hearing.
8.
Provide a. summary of individual expert opinions derived from members of
the Medical Advisory Board in consultation to suspend license 1491178.
9.
Provide the name, address, phone number and professional credentials of all
independent medical professionals who analyzed Driving Record 1491178 prior to
suspending the license.
10.
Provide a summary of individual expert opinions derived from all
independent medical professionals consulted prior to suspending license 1491178.
11.
Provide the names of all other people who were consulted, credentials and
individual opinions about evidence of incompetency in Driving Record 1491178 prior
to suspending the license.
12.
Specify if the Request for Medical Review issued in 2009 on License 1491178
was provoked by an adverse report of operation, the subject matter, date and
location of alleged incompetent operation, name of person making the adverse
report and date the adverse report was filed.
GinA v. State of Maine, Appendix
155a
13.
Specify and itemize all pieces of evidence, sources of evidence. and the date
that evidence was acquired by the Medical Advisory Board to support suspending
license 1491178.
14.
Provide actual proof and indicate the date, time and source of publication(s)
where successful public notice was served, if any, prior to suspending license
1491178. If no public notice was posted, specify and give reasons.
15.
Indicate the procedure used and all steps taken to justify suspension of
license 1491178 without preliminary hearing.
16.
Indicate all adverse symptoms and other items from the "Functions Profile''
which supported suspension of License 1491178 without preliminary hearing.
17.
Indicate and specify all other information, documentation, records, opinions
or laws which were relied upon to justify suspending License 1491178 without
preliminary hearing.
18.
Specify the relevant statutory authority and all penalties (judicial/criminal
and administrative) for "operating after medical suspension", if any. If none exist, so
specify.
19.
MD-LT-18 specifies, "the further operation by you of any motor vehicle, until
your privilege to operate has been restored will be in violation of the laws of this state
for which you will be liable to arrest and prosecution.''
QUESTION: Specify all statutory authority the .Secretary of State relies upon for
"arrest and prosecution" of 'operating after medical suspension' for "failure to file
medical evaluation request".
20.
YES or NO?? Cam an administrative "medical suspension" be deemed to be a
"prior offense'' for the purpose of calculating previous "criminal" operating after
suspension convictions?
21.
YES or NO?? When an entry on a driving record is "deleted" can that entry be
used in the calculation of prior offenses?
Please provide an enumerated list of complete and specific answers in the same
letter indicating the date and time of the administrative hearing.
Please allow no less than 30 days advance notice of the date of the administrative
hearing so witnesses and evidence can be obtained and reviewed prior to that date.
Thank you for your immediate attention to this matter.
In Peace,
Gina Turcotte
No. _____________
IN THE
___________________________________________
Matthew Dunlap
Secretary of State
APPENDIX DD
Department of
the Secretary of State
BUREAU OF MOTOR VEHICLES
Patty A. Morneault
Deputy Secretary of State
Robert E. O'Connell, Jr.
Director of Legal Affairs,
Adjudications & Hearings
April 2, 2013
Gina L. Turcotte
3 Washington Street Place, Unit 1
Augusta ME 04330
Dear Ms. Turcotte:
I am in receipt of your letter dated March 28, 2013 requesting an
administrative hearing on a driver's license suspension for failure to file a medical
evaluation with the Bureau of Motor Vehicles, effective January 5, 2010, which
suspension was terminated on March 8, 2011 when the evaluation was received.
The notice of suspension was mailed to the address you had provided to the
Bureau of Motor Vehicles, although returned to the Bureau by the United States
Postal Service, and you were given actual notice of the suspension by a law
enforcement officer on March 7, 2011.
Your request for an administrative hearing on a license suspension of which
you became knowledgeable two years ago and that was terminated two years past is
denied as untimely. This letter represents final agency action in this matter.
Sincerely,
Robert E. OConnell
Director, Legal Affairs, Adjudications and Hearings
APPENDIX EE
When notices are returned undeliverable and public notices are not posted,
Secretary of State knows, or should have known, that the person has no knowledge
of the notice because Secretary of State did not post required public notices in an
effort to notify the person.
There is no evidence that Secretary of State posted required notices pursuant
to 5 M.R.S. 9052.
29-A M.R.S. 112. NOTICE OF HEARING
Notice of any hearing held by the Secretary of State or by the Secretary of
State's authority under this Title must be consistent with Title 5, section
9052 and notify the licensee or registrant that the licensee or registrant may
then and there appear, in person or through counsel, to show cause why that
license or certificate of registration should not be suspended or revoked.
Service of that notice is sufficient if sent by regular mail [unless returned by
the postal service[ to the address given by the licensee or registrant at least
10 days before the date set for hearing.
29-A M.R.S. 2412-A(l-A)(A) Offense; penalty. A person commits operating while
license suspended or revoked if that person:
A.
Operates a motor vehicle on a public way or in a parking area when
that person's license has been suspended or revoked, and that person:
(1) Has received written notice of a suspension or revocation from the
Secretary of State or a court;
(2) Has been orally informed of the suspension or revocation by a law
enforcement officer or a court;
(3) Has actual knowledge of the suspension or revocation;
(4) Has been sent written notice in accordance with section 2482 ...
29-A M.R.S. 2482. NOTICE OF SUSPENSION OR REVOCATION OF LICENSE
1.
Notification by Secretary of State. Upon determining that a person is
subject to license suspension or revocation, the Secretary of State shall
immediately notify the person, in writing, of the license suspension or
revocation. The notice:
A.
Must be sent to the last name and address provided under
section 1407 or, if the person has not applied for a license, on record
with the Secretary of State;
B.
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
C.
May be served in hand.
2.
Notice contents. The notice must clearly state:
GinA v. State of Maine, Appendix
162a
A.
The reason and statutory grounds for the suspension or
revocation;
B.
The effective date of the suspension or revocation;
C.
Unless the suspension or revocation is ordered by a court or
rests solely upon a conviction or adjudication in court of an offense that
is, by statute, expressly made grounds for that suspension or
revocation, the right of the person to request a hearing and the
procedure for requesting a hearing...
3.
Receipt date. The notice is deemed received 3 days after mailing,
unless returned by postal authorities.
5 M.R.S. 9052. NOTICE
1.
Notice of hearing. When the applicable statute or constitutional law
requires that an opportunity for hearing shall be provided, notice shall be
given as follows:
A.
To the person or persons whose legal rights, duties or privileges
are at issue, by regular mail, sufficiently in advance of the anticipated
time of the decision to afford an adequate opportunity to prepare and
submit evidence and argument, and to request a hearing if so desired;
and
B.
In any proceeding deemed by the agency to involve the
determination of issues of substantial public interest, to the public
sufficiently in advance of the anticipated time of the decision to afford
interested persons an adequate opportunity to prepare and submit
evidence and argument, and to request a hearing if so desired.
2.
Hearing required. When a hearing is required by the applicable statute
or by agency regulation, or has been requested pursuant to subsection 1,
paragraph A, or has been set in an exercise of the agency's discretion, notice
shall be given as follows:
A.
To the person or persons whose legal rights, duties or privileges
are at issue, by regular mail, sufficiently in advance of the hearing
date to afford an adequate opportunity to prepare and submit. evidence
and argument; and
B.
In any proceeding deemed by the agency to involve the
determination of issues of substantial public interest, to the public
sufficiently in advance of the hearing date to afford interested persons
an adequate opportunity to prepare and submit evidence and
argument and to petition to intervene pursuant to section 9054.
3.
Notice to the public. Notice to the public shall be given:
A.
By publication, at least twice in a newspaper of general
circulation in the area of the state affected;
B.
By publication in any other trade, industry, professional or
interest group publication which the agency deems effective in
GinA v. State of Maine, Appendix
163a
4.
3.
Health or safety hazard. The health or physical safety of a person or
the continued well-being of a significant natural resource is in immediate
jeopardy at the time of the agency's action, and acting in accordance with
subchapter IV or VI would fail to adequately respond to a known risk,
provided that the revocation, suspension or refusal to renew shall not
continue for more than 30 days;
4.
Notice of hearing. Upon suspending or revoking a certificate of title,
certificate of registration, license or fuel use decal pursuant to subsection 2,
the Secretary of State shall notify that person of opportunity for hearing as
provided in section 2483
29-A M.R.S. 2483. Hearing request
1.
Request for hearing. A person may make a written request for a
hearing to review the determination of the Secretary of State. The request
must be made within 1 0 days from the effective date of the suspension.
2.
Issuance of decision. The Secretary of State shall conduct a hearing
and issue a decision within 30 days of receipt of a written request for hearing.
3.
Delayed requests. If a request is made after the 10-day period and the
Secretary of State finds that the person was unable to make a timely request
due to lack actual notice of the suspension or due to factors of physical
incapacity, the Secretary of State shall waive the period of limitation, reopen
the matter and grant the hearing request, except a stay may not be granted .
Actual knowledge of the request for medical evaluation and subsequent
suspension did not occur until March 7, 2011 when Augusta Police Officer Eric
DosSantos gave verbal notice during an unconstitutional traffic stop.
Secretary of State's request for medical evaluation was satisfied on March 8,
2011 with a favorable medical evaluation effectively nullifying all medical
restrictions and restoring license 1491178 without restoration fees or limitations.
The subject matter and statutory authority cited in MD-LT-18 dated
December 17, 2009 was not known until recently.
A letter dated March 18, 2013 was sent to Hearing Unit explicitly requesting
an ADMINISTRATIVE HEARING for the ADMINISTRATIVE MEDICAL
SUSPENSION dated January 5, 2010 for FAILURE TO FILE MEDICAL
EVALUATION.
In response, Assistant Director Susan Cole's letter dated March 20, 2013
stated I have reviewed your driving record and determined that your current
suspensions do not offer opportunity for hearing through the Bureau of Motor
Vehicles.
Ms. Cole's decision has no application or relevance to the explicit request.
Secretary of State failed to follow statutory procedure in the improper suspension of
license 1491178 on January 5, 2010, therefore, an administrative hearing must be
granted without further delay to discuss supplementary remedial action.
GinA v. State of Maine, Appendix
165a
13.
Indicate all adverse symptoms and other items from the "Functions
Profile" which supported suspension of License 1491178 without preliminary
hearing.
14.
Indicate and specify all other information, documentation , records,
opinions or laws which were relied upon to justify suspending License
1491178 without preliminary bearing.
15.
List names of all employees, date and time each employee accessed
Driving Record 1491178 and action initiated, beginning January 1, 2006
through present day, which are preserved in the Driving record's log of
events.
16.
Specify the relevant statutory authority and all penalties (judicial,
criminal and administrative) for "operating after medical suspension, if any .
If none exist, so specify.
17.
MD-LT-18 specifies, ''the further operation by you of any motor vehicle
, until your privilege to operate has been restored, will be in violation of the
laws of this state for which you will be liable to arrest and prosecution."'
QUESTION: Specify all statutory authority the Secretary of State relies upon
for "arrest and prosecution'' of 'operating after medical suspension' for
"failure to file medical evaluation request".
18. YES or NO Can an administrative "medical suspension be deemed to be a
"prior offense" for the purpose of calculating previous "criminal" operating
after suspension convictions?
19. YES or NO?'? When an entry on a driving record is "deleted" can that
entry be used in the calculation of prior offenses?
Please provide an enumerated list of complete and specific answers in the
same letter indicating the date and time of the administrative hearing.
Please allow no less than 30 days advance notice of the date of the
administrative hearing so witnesses and evidence can be obtained and reviewed
prior to that date.
Thank you for your immediate attention to this matter.
In Peace,
Gina Turcotte
Matthew Dunlap
Secretary of State
APPENDIX FF
Department of
the Secretary of State
BUREAU OF MOTOR VEHICLES
Patty A. Morneault
Deputy Secretary of State
Robert E. O'Connell, Jr.
Director of Legal Affairs,
Adjudications & Hearings
APPENDIX GG
March 18, 2013
Bureau of Motor Vehicles
Hearing Section
101 Hospital Street
Augusta, Maine 04333
RE:
2.
Proceeding. In any proceeding involving a proposed modification or
amendment of a license which was the subject of an earlier hearing, the agency
shall give notice thereof to all parties to the earlier proceeding and in any other
manner required by section 9052, and may reopen the earlier proceeding for
consideration of the proposed amendment or modification.
5 M.R.S. 10004. Action without hearing
Notwithstanding the provisions of sections 1 0003 and 10051, an agency may
revoke, suspend or refuse to renew any license without proceedings in conformity
with subchapters IV or VI, when:
1.
Judicial action. The decision to take that action rests solely upon a finding or
conviction in court of any violation which by statute is expressly made grounds for
revocation;
2.
Reciprocal license. The Maine license has been issued upon the basis of a
reciprocal agreement with another government, and the Maine action is based upon
evidence, in the form of a certified copy, that the authority issuing the license which
provided the basis for reciprocal licensing in Maine has revoked or suspended their
license;
3.
Health or safety hazard. The health or physical safety of a person or the
continued well-being of a significant natural resource is in immediate jeopardy at
the time of the agency's action, and acting in accordance with subchapter IV or VI
would fail to adequately respond to a known risk, provided that the revocation,
suspension or refusal to renew shall not continue for more than 30 days;
4.
Notice of hearing. Upon suspending or revoking a certificate of title,
certificate of registration, license or fuel use decal pursuant to subsection 2, the
Secretary of State shall notify that person of opportunity for hearing as provided in
section 2483, except when:
A. The suspension or revocation rests solely upon a conviction in court of an offense
that by statute is expressly made grounds for that suspension or revocation;
B. The basis of the Secretary of State's action is a condition of bail or conditional
release pursuant to subsection 2, paragraph Q; or
C. The suspension or revocation is required by federal statute or regulation.
Driving record 1491178 serves as prima facie evidence that required notices were
NOT properly served.
VIOLATION FREE CREDITS on 010109 for 2008
USPS RETURNED MD-LT-01 on 111009
GinA v. State of Maine, Appendix
172a
The Secretary of State's violation of due process of law, improper use of the
suspension process and unlawfully suspending License # 1491178 without giving
proper notices is grounds for immediate reversal and nullification of all
administrative and court actions which have resulted either directly. or indirectly
from the unlawful suspension.
A full administrative hearing is required.
Gina Turcotte
APPENDIX HH
Order Denying Petitioner's Motion To Reconsider
STATE OF MAINE
KENNEBEC, ss.
also asserts that she only paid her fine under "duress, coercion, and intimidation"
because "Judge Dobson was telling her, 'pay your fine or go to jail."' (M. Reconsid.)
The post-conviction review statute does permit a person to collaterally
challenge a conviction when that conviction is being used to enhance a sentence in a
pending action, under certain circumstances. 15 M.R.S. 2124(3)(A) permits postconviction review for an indirect impediment when "[i]ncarceration pursuant to a
sentence imposed in this State, in another state or in a Federal Court for a crime
punishable by incarceration for a year or more, if the length of the incarceration is
greater than it would otherwise have been in the absence of the challenged criminal
judgment of this State." (emphasis added). In the present case, none of the pending
charges in CR-12-286 and CR -12-667 are punishable by a year or more because the
highest charge is a Class D. 17 M.R.S. 1252(D).
Petitioner's claim that she only paid the fine under duress is similarly
unavailing. Petitioner's election to pay the fine rather than go to jail took her out of
the purview of the post-conviction review statute. Accordingly, the Court denies
Petitioner's motion for reconsideration.
The entry is:
The petitioner's motion to reconsider the summary dismissal of the
petitioner's May 2012 post-conviction petition in DENIED.
Dated: October 31, 2012
APPENDIX II
STATE OF MAINE
SUPERIOR COURT
KENNEBEC, ss.
DOCKET NO. AUGSC-CR- 12-553
APPENDIX JJ
STATE OF MAINE
KENNEBEC, ss.
SUPERIOR COURT
CRIMINAL ACTION
DOCKET NO. CR- 12-553
Because it plainly appears from the face of the petition that Petitioner fails to show
subject matter jurisdiction, the petition is summarily dismissed. M. R. Crim. P.
70(b).
Therefore it is hereby ORDERED:
The petition for post-conviction review is summarily dismissed.
Dated: September 13, 2012
Superior Court
APPENDIX KK
STATE OF MAINE
SUPERIOR COURT
KENNEBEC, ss.
AUGSC-CR-2012-00667
STATE OF MAINE
Plaintiff
v
GINA LYNN TURCOTTE
Defendant
17-A M.R.S. 2 defines "public servant" as "any official officer or employee of any
branch of government and any person participating as juror, advisor, consultant or
otherwise, in performing a governmental junction. A person is considered a public
servant upon the person's election, appointment or other designation as such,
although the person may not yet officially occupy that position. "
5 CFR 2635.101 Basic obligation of public service.
Public service is a public trust. Each employee has a responsibility to the
United States Government and its citizens to place loyalty to the Constitution,
laws and ethical principles above private gain.
General principles. The following general principles apply to every employee
and may form the basis for the standards contained in this part. Where a
situation is not covered by the standards set forth in this part, employees shall
apply the principles set forth in this section in determining whether their
conduct is proper.
(1) Public service is a public trust, requiring employees to place loyalty
to the Constitution, the laws and ethical principles above private gain.
(2) Employees shall not hold financial interests that conflict with the
conscientious performance of duty.
(7) Employees shall not use public office for private gain.
(8) Employees shall act impartially and not give preferential treatment
to any private organization or individual.
(11) Employees shall disclose waste, fraud, abuse, and corruption to
appropriate authorities.
(14) Employees shall endeavor to avoid any actions creating the
appearance that they are violating the law or the ethical standards set
forth in this part. Whether particular circumstances create an
appearance that the law or these standards have been violated shall be
determined from the perspective of a reasonable person with knowledge
of the relevant facts.
Maine Code of Judicial Conduct, Preamble ... is founded on the precepts that judges,
individually and collectively, must respect and honor the judicial office as a public
trust" and "is to be applied consistent with constitutional requirements, statutes,
rules of court, decisional law, and common sense and in the context of all relevant
circumstances ... "
The following Statements of Fact, Points of Law, and Judicial Authorities are
offered in support thereof:
1. Defendant is one of the freeborn, living, breathing, sovereign inhabitants of
the republic of Maine.
2. Defendant has given lawful and properly certified notice reclaiming and
redeeming her sovereign status effectively nullifying all unlawful contracts in
May 2012, hereby attached to this Motion as exhibits, those notifications
GinA v. State of Maine, Appendix
180a
3.
4.
5.
6.
10. Defendant's actions "did not actually cause or threaten the harm sought to be
prevented".
11. Defendant did not violate 17-A M.R.S. 751-A nor 17-A M.R.S. 751-B.
As to Count III of Plaintiffs Complaint, 29-A M.R.S. 2104(1-A) "IMPROPER
PLATES"
12. 2104(1-A). Improper plates. Permitting attachment of false plates. "A person
commits a Class E crime if that person permits to be attached to a vehicle a
registration plate assigned to another vehicle or not currently assigned to that
vehicle.
13. 29-A M.R.S. 451(4) dictates the mandatory standard design of all vehicle
registration plates:
Registration plate design. Registration plates must be designed as follows:
B. Registration plates must bear the year of issue or the last 2 numerals of
that year and the word "Maine" or the abbreviation "Me." in letters of at
least 3/4 inch in height centered at the top of the registration plate.
C. Except on motorcycle plates, registration plate numbers may not be
substantially less than 3 inches high.
D. On registration plates issued for private use, the word "Vacationland" must
be centered at the bottom...
14. Plaintiffs Agent, Ofc. Christopher Guay states, "I had recently read an email
containing a picture of a similar license plate that read 'USDOT' on top and
'Private Peaceful' on the bottom. The plate number I observed was 2177825
and this did not register in any DMV checks."
15. A false 'vehicle registration plate cannot be deemed to be 'false' unless it
substantially mimics or appears to replicate, or is in fact an authentic 'vehicle
registration plate'.
16. Defendant affixed a black and white sign obviously contrasting a vehicle
registration plate.
17. Defendant's private sign does not resemble nor mimic a vehicle registration
plate.
18. Defendant did not attempt to forge, counterfeit nor replicate a vehicle
registration plate.
19. Plaintiffs Agent Ofc. Guay states, "The plate number I observed was 2177825
and this did not register in any DMV checks." being prima facie evidence of
the irrelevance and inapplicability of 29-A M.R.S. 2104(1-A).
20. Defendant has never requested a state vehicle registration plate for her 1994
Toyota Celica.
21. Defendant did not attach a state vehicle registration plate assigned to
another motor vehicle.
22. Defendant did not have possession of a false state vehicle registration plate
upon arrest.
23. Defendant did not violate 29-A M.R.S. 2104(1-A).
GinA v. State of Maine, Appendix
184a
24. Defendant did not commit any crime to substantiate any traffic stop by Ofc.
Guay.
25. Plaintiffs Agent Ofc. Guay did not know the identity of the Defendant before
the traffic stop.
26. Plaintiffs Agent, Ofc. Guay did not have articulable suspicion of the
commission of any crime prior to seizing Defendant via an unlawful and
constitutionally prohibited traffic stop for "having a false plate attached"
which was not a 'false plate' in any way whatsoever.
27. Plaintiffs Agent, Ofc. Christopher Guay violated Defendant's 4th Amendment
protections against unlawful search and seizure without reasonable suspicion
or objective justification.
28. Plaintiffs Agent Ofc. Guay states, "I am aware that people who claim to be
'sovereign citizens' display these types of plates."
29. Plaintiffs Agent Ofc. Guay did not "reasonably suspect that [Defendant] is
engaged in, or poised to commit, a criminal act at that moment." thereby
prohibiting the traffic stop, nunc pro tunc.
30. See, e. g., Brown v. Texas, 443 U S. 47, 51 (1979) " ... before detaining an
individual, law enforcement officers must reasonably suspect that he is
engaged in, or poised to commit, a criminal act at that moment. (to detain,
officers must "have a reasonable suspicion, based on objective facts, that the
individual is involved in criminal activity'');"
31. Plaintiffs Agents cannot lawfully initiate a traffic stop because the Defendant
was suspected of being sovereign.
32. Plaintiffs Agent Ofc. Guay violated Defendant's constitutionally protected
rights by initiating a traffic stop based on the unfounded assumption that the
woman who entered the automobile was a 'sovereign citizen' (which is
impossible. One cannot be sovereign and a citizen at the same time).
33. Defendant is in fact divinely, spiritually, lawfully, legally, and statutorily
sovereign.
34. Being sovereign is not a crime.
35. Defendant was not "engaged in, or poised to commit, a criminal act at that
moment".
36. 17-A M.R.S. 12. De Minimus Infractions. "The court may dismiss a
prosecution if, upon notice to or motion of the prosecutor and opportunity to be
heard, having regard to the nature of the conduct alleged and the nature of the
attendant circumstances, it finds the defendant's conduct:
B. Did not actually cause or threaten the harm sought to be prevented by the
law defining the crime or did so only to an extent too trivial to warrant the
condemnation of conviction;
C. Presents such other extenuations that it cannot reasonably be regarded as
envisaged by the Legislature in defining the crime."
37. Defendant's actions "did not actually cause or threaten the harm sought to be
prevented ".
GinA v. State of Maine, Appendix
185a
38. Defendant's right to unhindered locomotion and free speech, inter alia, have
been and are now violated by Plaintiffs requirement that all owners of
automobiles register their private property and display 'vehicle registration
plates' for the effective purpose of unlawfully monitoring, controlling and
restricting Defendant's free movement in blatant violation of federal and
state constitutional protections.
39. 18 U.S.C. 31(6) defines "Motor vehicle" as "every description of carriage or
other contrivance propelled or drawn by mechanical power and used for
commercial purposes on the highways in the transportation of passengers,
passengers and property, or property or cargo."
40.18 U.S.C. 31(10) defines "Used for commercial purposes" as "the carriage of
persons or property for any fare, fee, rate, charge or other consideration, or
directly or indirectly in connection with any business, or other undertaking
intended for profit."
41. Plaintiffs 29-A M.R.S. 101(42) defines "Motor vehicle" as "a self-propelled
vehicle not operated exclusively on tracks ... in direct conflict with 18 U.S.C.
31(6).
42. 29-A M.R.S. 101(91) defines "vehicle" as "a device for conveyance of persons
or property on a way. Vehicle" does not include conveyances propelled or
drawn by human power or used exclusively on tracks or snowmobiles as
defined in Title 12, section 13001 or an electric personal assistive mobility
device as defined in this section."
43. 29-A M.R.S. 101(50) defines "Owner" as a person holding title to a vehicle or
having exclusive right to the use of the vehicle for a period of 30 days or more."
44. 29-A M.R.S. 101(59) defines "public way" as "a way, owned and maintained
by the State, a county or a municipality, over which the general public has a
right to pass."
45. 29-A M.R.S. 101(75) defines "street or highway" as "a public way."
46. 29-A M.R.S. 351. Registration required "The owner of a vehicle that is
operated or remains on a public way is responsible for registering the vehicle."
47. Plaintiffs 29-A M.R.S. fails to establish any difference between a private
conveyance and a commercial motor vehicle as required by 18 U.S.C. 31(6).
48. Defendant solely owns her 1994 Toyota Celica which is not a commercial
motor vehicle.
49. Defendant does not use her 1994 Toyota Celica for hire nor for commercial
purposes.
50. Plaintiff cannot enforce state 'laws' which directly and blatantly contradict
federal 'laws'.
51. 29-A M.R.S. 351 is prima facie evidence of Plaintiffs willful infringement o~
several constitutional protections.
As to Count II of Plaintiffs Complaint, 29-A M.R.S. 2412-A(1-A)(D)
"OPERATING AFTER SUSPENSION''
GinA v. State of Maine, Appendix
186a
52. 29-A M.R.S. 2412-A (1-A). A person commits operating while license
suspended or revoked if that person:
A. Operates a motor vehicle on a public way or in a parking area when that
person's license has been suspended or revoked, and that person:
1. Has received written notice of a suspension or revocation from the
Secretary of State or a court;
2. Has been orally informed of the suspension or revocation by a law
enforcement officer or a court;
3. Has actual knowledge of the suspension or revocation;
4. Has been sent written notice .in accordance with section 2482 or former
Title 29, section 2241, subsection 4;
D. Violates paragraph A, the suspension was not for OUI or an OUI offense
and the person has one or more prior convictions for violating this section.
53. The aforementioned "prior offense" (AUGDC-11-CR-512; dismissed) and
AUGDC-11-CR-513 resulted from an unlawful fraudulent plea agreement
willfully and knowingly coerced by Plaintiffs Agent, A.D.A. STEVE PARKER,
on July 5, 2011.
54. The aforementioned ''prior offense" is now pending post-conviction review
filed on July 6, 2012, for unlawful criminal prosecution of a 'traffic violation'
which may be exclusively adjudicated, if at all, by:
29-A M.R.S. 2412-A(8) Traffic infraction. A person commits a traffic
infraction operating while license suspended as described in subsection 1A, paragraph A if the person has not been convicted or adjudicated of a
prior offense under this section and the sole basis for the suspension is:
A. Failure to pay a fine;
B. Failure to pay a license reinstatement fee; or
C. Suspension for a dishonored check.
a. Plaintiffs Agent, Bureau of Motor Vehicles, Medical Review Unit made a
record entry on # 1491178 for an 'indefinite suspension' for 'failure to
comply with medical e valuation request' on November 10, 2009 effective
January 5, 2010, without due process of law.
b Defendant did not commit any actions to provoke the request for medical
review.
c. Plaintiffs Agent, Bureau of Motor Vehicles, Medical Review Unit,
attempted to send two (2) undelivered notices to Defendant's last known
mailing address.
d. Plaintiffs Agent, Bureau of Motor Vehicles, Medical Review Unit, received
both notices returned undeliverable as addressed, dated November 10,
2009 and December 28, 2009.
e. Defendant never received any written notice of suspension as required by
29-A M.R.S. 2412-A(1-A)(A)(1) evidenced by two entries on driving
record# 1491178, USPS RETURNED.
f. Plaintiffs Agent, Bureau of Motor Vehicles, Medical Review Unit cannot
claim Defendant "Has been sent written notice in accordance with section
GinA v. State of Maine, Appendix
187a
2482" which implies successful delivery because said notices were USPS
RETURNED on November 10, 2009 and December 28, 2009, respectively.
g. Defendant did not have knowledge of any suspension prior to March 7,
2011.
h. Plaintiffs Agent, Bureau of Motor Vehicles, Medical Review Unit, despite
knowingly and willfully violating due process of law and without holding
mandatory hearings, suspended driver's license #1491178 on January 5,
2010.
1. Driver's license #1491178 received "violation free credits" for years 2008,
2009, and 2010.
J. Defendant completed Bureau of Motor Vehicle's medical evaluation on
March 8, 2011.
k. Plaintiffs Agent, Bureau of Motor Vehicles, Medical Review Unit
immediately 'restored' license #1491178 without 'restoration fees' on
March 8, 2011.
1. Plaintiffs Agent, Bureau of Motor Vehicles, Medical Review Unit
effectively 'deleted' the aforementioned 'medical suspension' from record
#1491178 on March 8, 2011.
m. A "medical suspension" is not and can not be calculated as a prior offense
"operating after suspension" pursuant to 29-A M.R.S. 2412-A(1-Al(D).
n. Driving record # 1491178 is void of all "medical" restrictions, effective
March 8, 2011.
55. Plaintiff has unclean hands and cannot prevail, pursuant to maxims of law.
56. By stealthy encroachment through the use of 'statutes' and 'administrative
rules', the corporation/state takes away our liberty and sells it back to us as a
license. The stealthy encroachment process of the corporation/ state against
the human depends on time for its success. The human lives perhaps 85
years. The corporation/state has eternal life. As each succeeding generation
dies off, the next generation fails to remember the lessons and history of the
previous generation. The corporation/state depends on that. Defendant
remembers the way it was. We use the road as common tenants- not as
renters/licensees from the corporation/state. By looking back at old disputes
regarding roads, rivers, and other ways of passage, we see clearly that public
property is nothing more than property held in common tenancy for use by
the public.
57. Defendant peacefully asserts her sovereignty and personal liberty to freely
possess private property liberated from all governmental interferences and
encumbrances which is a guaranteed right to every citizen under our
Constitution and common equity laws.
58. The Plaintiff cannot require or issue a license to exercise a fundamental
liberty of not-for-hire traveling.
59. The Plaintiff cannot require or issue a license to exercise a fundamental
liberty of possessing private property.
GinA v. State of Maine, Appendix
188a
75. 17 M.R.S. 2931. Prohibition. A person may not, by force or threat of force,
intentionally injure, intimidate or interfere with, or intentionally attempt to
injure, intimidate or interfere with or intentionally oppress or threaten any
other person in the free exercise or enjoyment of any right or privilege, secured
to that person by the Constitution of Maine or laws of the State or by the
United States Constitution or laws of the United States."
76. Section 2 of the Bill of Rights clarifies "that all power is vested in, and
consequently derived from, the people; that Magistrates are their trustees and
servants, and at all times amenable to them".
77 Article 1, Section 2 of the Maine Constitution, states, "All power is inherent in
-the people; all free governments are founded in their authority and instituted
for their benefit; they have therefore an unalienable and indefeasible right to
institute government, and to alter, reform, or totally change the same, when
their safety and happiness require it."
78. Article 4 of the Amendments to the Federal Constitution and Article 1,
Section 5 of the Maine Constitution, declares, "The people shall be secure in
their persons, houses, papers and possessions from all unreasonable searches
and seizures; and no warrant to search any place, or seize any person or thing,
shall issue without a special designation of the place to be searched, and the
person or thing to be seized, nor without probable cause -- supported by oath
or affirmation."
79. Gibbons v. Ogden, 22 US 1 -Supreme Court 1824, "The word "license," means
permission, or authority; and a license to do any particular thing, is a
permission or authority to do that thing; and if granted by a person having
power to grant it, transfers to the grantee the right to do whatever it purports
to authorize."
80. Boyd v. United States, 116 US 616- Supreme Court 1886, "It is the duty of
courts to be watchful for the constitutional rights of the citizen, and against
any stealthy encroachments thereon."
8l. Mattox v. United States, 156 US 237- Supreme Court 1895, "We are bound to
interpret the Constitution in the light of the law as it existed at the time it was
adopted':
82. Norton v. Shelby County, 118 US 425- Supreme Court 1886, "An
unconstitutional act is not a law; it confers no rights; it imposes no duties; it
affords no protection; it creates no office; it is, in legal contemplation, as
inoperative as though it had never been passed."
83. 29-A M.R.S. 351. Registration required is null pursuant to Norton v. Shelby
Cty.
84. 29-A M.R.S. 2412-A Operating After Suspension is null pursuant to Norton
v. Shelby Cty.
85. Pinkerton v. Verberg, 78 Mich. 573- 1889, "Personal liberty, which is
guaranteed to every citizen under our constitution and laws, consists of the
right of locomotion,-to go where one pleases, and when, and to do that which
GinA v. State of Maine, Appendix
190a
may lead to one's business or pleasure, only so far restrained as the rights of
others may make it necessary for the welfare of all other citizens."
86. Pinkerton v. Verberg, 78 Mich. 573- 1889, "The right to travel is a part of the
liberty of which the citizen cannot be deprived without due process of law ....
87. City of Chicago v. Collins, 175 Ill. 445 - 1898, "A license being regarded as a
privilege can not possibly exist with reference to something which is a right,
free and open to all, as is the right of the citizen to ride over the highways by
motor vehicle, or horse vehicle in a reasonable manner."
88. Bonnett v. Vallier, 136 Wis. 193- 1908, "This Court has said with respect to
an unconstitutional law that the matter stands as if the law had not been
passed."
89. 29-A M.R.S. 351. Registration required is null pursuant to Bonnett v.
Vallier.
90. 29-A M.R.S. 2412-A Operating After Suspension is null pursuant to Bonnett
v. Vallier.
9l. Frost v. Railroad Commission, 271 U.S. 583; 46 S.Ct. 605 (1926), "it would be
a palpable incongruity to strike down an act of state legislation which, by
words of express divestment, seeks to strip the citizen of rights guaranteed by
the federal Constitution, but to uphold an act by which the same result is
accomplished under the guise of a surrender of a right in exchange for a
valuable privilege which the state threatens otherwise to withhold. It is not
necessary to challenge the proposition that, as a general rule, the state, having
power to deny a privilege altogether, may grant it upon such conditions as it
sees fit to impose. But the power of the state in that respect is not unlimited,
and one of the limitations is that it may not impose conditions which require
the relinquishment of Constitutional rights. If the state may compel the
surrender of one constitutional right as a condition of its favor, it may, in like
manner, compel a surrender of all. It is inconceivable that guaranties
embedded in the Constitution of the United States may thus be manipulated
out of existence."
92. Thompson v. Smith, 155 Va. 367- Va: Supreme Court 1930, "The right of a
citizen to travel upon the public highways and to transport his property
thereon in the ordinary course of life and business is a common right which he
has under his right to enjoy life and liberty, to acquire and possess property,
and to pursue happiness and safety. It includes the right in so doing to use the
ordinary and usual conveyances of the day; and under the existing modes of
travel includes the right to drive a horse-drawn carriage or wagon thereon, or
to operate an automobile thereon, for the usual and ordinary purposes of life
and business. It is not a mere privilege, like the privilege of moving a house in
the street, operating a business stand in the street, or transporting persons or
property for hire along the street, which a city may permit or prohibit at will.
The exercise of such a common right the city may, under its police power,
regulate in the interest of the public safety and welfare; but it may not
arbitrarily or unreasonably prohibit or restrict it, nor may it permit one to
GinA v. State of Maine, Appendix
191a
something which otherwise he would not have the right to do-a special
privilege rather than a right common to all persons."
97. Miller v. United States, 230 F. 2d 486- Court of Appeals, 5th Circuit
1956, "The claim and exercise of a constitutional right cannot thus be
converted into a crime."
98. Berberian v. Lussier, 139 A. 2d 869- RI: Supreme Court 1958, "The use
of the automobile as a necessary adjunct to the earning of a livelihood in
modern life requires us in the interest of realism to conclude that the right to
use an automobile on the public highways partakes of the nature of a liberty
within the meaning of the constitutional guarantees of which the citizen may
not be deprived without due process of law"
99. Cooper v. Aaron, 358 US 1 -Supreme Court 1958, "No state legislator or
executive or judicial officer can war against the Constitution without violating
his undertaking to support it. Chief Justice Marshall spoke for a unanimous
Court in saying that: 'If the legislatures of the several states may, at will,
annul the judgments of the courts of the United States, and destroy the rights
acquired under those judgments, the constitution itself becomes a solemn
mockery' United States v. Peters, 5 Cranch 115, 136."
100. United States v. Guest, 383 US 745 -Supreme Court 1966, "The
constitutional right to travel from one State to another, and necessarily to use
the highways and other instrumentalities of interstate commerce in doing so,
occupies a position fundamental to the concept of our Federal Union. It is a
right that has been firmly established and repeatedly recognized. In Crandall
v. Nevada, 6 Wan 35, invalidating a Nevada tax on every person leaving the
State by common carrier, the Court took as its guide the statement of Chief
Justice Taney in the Passenger Cases, 7 How. 283, 492:
"For all the great purposes for which the Federal government was formed, we are
one people, with one common country. We are all citizens of the United States;
and, as members of the same community, must have the right to pass and
repass through every part of it without interruption, as freely as in our own
States." Although the Articles of Confederation provided that "the people of
each State shall have free ingress and regress to and from any other State,"
that right finds no explicit mention in the Constitution. The reason, it has
been suggested, is that a right so elementary was conceived from the beginning
to be a necessary concomitant of the stronger Union the Constitution created.
In any event, freedom to travel throughout the United States has long been
recognized as a basic right under the Constitution. See Williams v. Fears, 179
U. S. 270, 274; Twining v. New Jersey, 211 U. S. 78, 97; Edwards v.
California, 314 U. S. 160, 177 (concurring opinion), 181 (concurring opinion);
New York v. O'Neill, 359 U.S. 1, 6-8; 12-16 (dissenting opinion) Although
there have been recurring differences in emphasis within the Court as to the
source Of the constitutional right of interstate travel, there is no need here to
canvass those differences further. All have agreed that the right exists. Its
explicit recognition as one of the federal rights protected by what is now 18 U.
GinA v. State of Maine, Appendix
193a
S. C. 241 goes back at least as far as 1904. United States v. Moore, 129 F.
630, 633. We reaffirm it now."
101. Adams v. City of Pocatello, 416 P. 2d 46- Idaho: Supreme Court 1966
"The right to operate a motor vehicle upon the public streets and highways is
not a mere privilege. It is a right or liberty, the enjoyment of which is protected
by the guarantees of the fede ral-and state constitutions. Arrow
Transportation Co. v. Idaho Public Utilities Com'n, 85 Idaho 307, 379 P.2d
422 (1963); State v. Kouni, 58 Idaho 493, 76 P.2d 917 (1938); Packard v.
O'Neil, 45 Idaho 427, 262 P. 881, 56 A.L. R. 31-7(1927); Abrams v. Jones, 35
Idaho 532, 207 P. 724 (1922); Schecter v. Killingsworth, 93 Ariz_ 273, 380
P.2d 136 (1963); People v. Nothaus, 147 Colo. 210, 363 P.2d 180 (1960);
Escobedo v. State Dept. of Motor Vehicles, 35 Cal.2d 870, 222 P.2d 1 (1950);
Hadden v. Aitken, 156 Neb. 215, 55 N. W2d 620, 35 A.L.R.2d 1003 (1952);
Doyle v. Kahl, 242 Iowa 153, 46 N. W2d 52 (1951); Ballow v. Reeves, 238 S.
W2d 141 (Ky.1951); Berberian v. Lussier, 87 R.I. 226, 139 A.2d 869 (1958);
Wall v. King, 206 F.2d 878 (1st Cir. 1953). "
102. Miranda v. Arizona, 384 US 436 - Supreme Court 1966, "Where rights
secured by the Constitution are involved, there can be no rule making or
legislation which would abrogate them."
103. Terry v. Ohio, 392 US 1 -Supreme Court 1968, "Courts which sit under
our Constitution cannot and will not be made party to lawless invasions of the
constitutional rights of citizens by permitting unhindered governmental use of
the fruits of such invasions.''
104. Terry v. Ohio, 392 US 1 - Supreme Court 1965, "The Fourth Amendment
provides that "the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated .... " This inestimable right of personal security belongs as much to
the citizen on the streets of our cities as to the homeowner closeted in his study
to dispose of his secret affairs. For, as this Court has always recognized, "No
right is held more sacred, or is more carefully guarded, by the common law,
than the right of every individual to the possession and control of his own
person, free from all restraint or interference of others, unless by clear and
unquestionable authority of law." Union Pac. R. Co. v. Botsford, 141 U.S. 250,
251 (1891).
We have recently held that "the Fourth Amendment protects people, not places,
Katz v. United States, 389 U. S. 347, 351 (1967), and wherever an individual
may harbor a reasonable "expectation of privacy," id., at 361 (MR. JUSTICE
HARLAN, concurring), he is entitled to be free from unreasonable
governmental intrusion. Of course, the specific content and incidents of this
right must be shaped by the context in which it is asserted. For "what the
Constitution forbids is not all searches and seizures, but unreasonable
searches and seizures. " Elkins v. United States. 364 U. S. 206, 222 (1960).
Unquestionably petitioner was entitled to the protection of the Fourth
Amendment as he walked down the street in Cleveland. Beck v. Ohio, 379 US
GinA v. State of Maine, Appendix
194a
89 (1964); Rios v. United States, 364 US 253 (1960); Henry v. United States,
361 US 98 (1959); United States v. Di Re, 332 US 581 (1948); Carroll v.
United States, 267 US 132 (1925). The question is whether in all the
circumstances of this on-the-street encounter, his right to personal security
was violated by an unreasonable search and seizure.
105. Shuttlesworth v. Birmingham, 394 US 147- Supreme Court 1969, ...
our decisions have made clear that a person faced with such an
unconstitutional licensing law may ignore it and engage with impunity in the
exercise of the right of free expression for which the law purports to require a
license ... "
106. People v. Horton, 14 Cal. App. 3d 930- Cal: Court of Appeal, 5th
Appellate Dist. 1971, " ... the right of the citizen to drive on a public street
with freedom from police interference, unless he is engaged in suspicious
conduct associated in some manner with criminality, is a fundamental
constitutional right which must be protected by the courts."
107. Defendant did not commit any crime to substantiate any traffic stop by Ofc.
Guay.
108. Plaintiffs Agent Ofc. Guay did not know the identity of the Defendant before
the traffic stop.
109. Plaintiffs Agent, Ofc. Guay did not have articulable suspicion of the
commission of any crime prior to seizing Defendant via an unlawful and
constitutionally prohibited traffic stop for "having a false plate attached"
which was not a 'false plate' in any way whatsoever.
110. Plaintiffs Agent, Ofc. Christopher Guay violated Defendant's 4th Amendment
protections against unlawful search and seizure without reasonable suspicion
or objective justification.
111. Plaintiffs Agent Ofc. Guay states, "I am aware that people who claim to be
'sovereign citizens display these types of plates."
112. Plaintiffs Agent Ofc. Guay did not "reasonably suspect that [Defendant] is
engaged in, or poised to commit, a criminal act at that moment.'' thereby
prohibiting the traffic stop, nunc pro tunc.
113. See, e. g., Brown v. Texas, 443 U. S. 47, 51 (1979) " ... before detaining an
individual, law enforcement officers must reasonably suspect that he is
engaged in, or poised to commit, a criminal act at that moment. (to detain,
officers must "have a reasonable suspicion, based on objective facts, that the
individual is involved in criminal activity'');"
114. Plaintiffs Agents cannot lawfully initiate a traffic stop because the Defendant
was suspected of being sovereign.
115. Plaintiffs Agent Ofc. Guay violated Defendant's constitutionally protected
rights by initiating a traffic stop based on the unfounded assumption that the
woman who entered the automobile was a 'sovereign citizen' (which is
impossible. One cannot be sovereign and a citizen at the same time).
116. Defendant is in fact divinely, spiritually, lawfully, legally, and statutorily
sovereign.
GinA v. State of Maine, Appendix
195a
ME 34, , 7, 707 A.2d 79, 82. A seizure occurs when an officer, by a show of
authority, in some way restrains a citizen such that "he is not free to walk
away." Id. (quotation marks omitted). The test for whether a seizure has
occurred is an objective one, i.e., whether a reasonable person would have
believed that he was not free to leave. See United States v. Mendenhall, 446
U.S. 544, 554. 100 S. Ct. 1870, 64 L.Ed.2d 497 (1980)."
126. State v. Ronald A. LaPlante, 26 A. 3d 337- Me: Supreme Judicial
Court 2011, '~ traffic stop of a motorist by a law enforcement officer is a
seizure for purposes of the Fourth Amendment of the United States
Constitution and article I, section 5, of the Maine Constitution. Illinois v.
Lidster, 540 U.S. 419, 425-26, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004); State v.
Hutchinson, 2009 ME 44, , 18 n. 9, 969 A.2d 923, 928; State v. Brewer, 1999
ME 58, , 12,727 A.2d 352, 355. A seizure is unlawful if it is unreasonable.
U.S. Const. amend. IV; Me. Canst. art. I, 5. In almost all circumstances, a
warrantless seizure is unreasonable in the absence of an objectively
reasonable, articulable suspicion "that criminal conduct has taken place, is
occurring, or imminently will occur."[2] State v. Donatelli, 2010 ME 43, 11,
995 A.2d 238, 241 (quotation marks omitted). However, the Supreme Court
recognized in Brown that even in the absence of reasonable articulable
suspicion, a seizure for information-seeking purposes may be reasonable if "the
gravity of the public concerns served by the seizure [and] the degree to which
the seizure advances the public interest" outweigh "the severity of the
interference with individual liberty. "443 U.S. at 50-51, 99 S.Ct. 2637 ...
" ... We thus examine the reasonableness of the trooper's stop of LaPlante by
evaluating (1) the gravity of the public concern in addressing a civil speeding
infraction; (2) the degree to which the seizure of a motorist advances a
speeding investigation; and (3) the severity of the interference with a motorist's
constitutionally-protected liberty interest when that motorist is stopped for
questioning by law enforcement ...
" ... The requirement that searches and seizures be reasonable "reflects the Framers'
recognition 'that searches and seizures were too valuable to law enforcement to
prohibit them entirely' but that 'they should be slowed down. Thomas K.
Clancy, The Fourth Amendment: Its History and Interpretation 11.1 at 466
(2008) (quoting Berger v. New York, 388 U.S. 41, 75, 87 S.Ct. 1873, 18
L.Ed.2d 1040 (1967) (Black, J., dissenting). Accordingly, when the State
points to a public concern to justify the reasonableness of a search or seizure,
courts must consider the gravity of that public concern in the context of the
constitutionally-protected right to be free from unreasonable searches and
seizures. See Brown, 443 U.S. at 50-51, 99 S. Ct. 2637 ... "
" ...In contrast, the investigation of noncriminal offenses is generally not a
sufficiently grave public concern to outweigh the interference with a motorist's
liberty interest that occurs when the motorist is stopped without any
reasonable articulable suspicion.[3] See, e.g., State v. Ryland, 241 Neb. 74,
486 N. W2d 210, 213-14 (1992).
GinA v. State of Maine, Appendix
198a
133. Brooks v. State, 258 SW 2d 317- Tex: Court of Criminal Appeals 1953,
"The information upon which this conviction was predicated alleged that
appellant 'did then and there unlawfully drive and operate a motor vehicle
upon a public highway ... while his .. . drivers license was suspended.'
In Hassell v. State, 149 Tex.Cr.R. 333, 194 S. W2d 400, 401, we said: "There being
no such license as a 'driver's' license known to the law, it follows that the
information, in charging the driving of a motor vehicle upon a public highway
without such a license, charges no offense." See also Holloway v. State,
Tex.Cr.App., 237 S. W2d 303.
Because the information fails to charge an offense, the judgment is reversed and the
prosecution ordered dismissed. "
134. Plaintiffs Law Enforcement Agents must all know about Maine Law
Enforcement Officer's Manual 2008- 2010, pg 4-11 which clearly and well
advises its readers that 4th Amendment protections exist for ALL traffic stops
of private non-commercial automobiles.
WHEREFORE, DEFENDANT hereby requires this court dismiss all charges
with prejudice.
Dated: August, 27, 2012
APPENDIX LL
Petition For Post-Conviction Review
APPENDIX MM
Secretary Of State Certificate Of Suspension Apr 6 2012
APPENDIX NN
Narrative Of Steven J. Corbett Apr 6 2012
APPENDIX OO
Confidential Screening Sheet
ARRAIGN: April 06, 2012
D.A.: David W. Jackson
DOB: 12/17/1968
APPENDIX PP
Narrative Of Christopher Guay And Christopher Shaw
APPENDIX QQ
Notice of Suspension and Opportunity for Hearing Aug 9 2011
APPENDIX RR
Judgment And Commitment July 5, 2011
APPENDIX SS
Complaint AUGDC-CR-11-512/513
APPENDIX TT
Notice Of Suspension Deletion
Department of
the Secretary of State
Bureau of Motor Vehicles
Charles E. Summers, Jr.
Secretary of State
Gina L. Turcotte
239 Cony St, Apt 2
Augusta, ME 04330
Thomas Arnold
Deputy Secretary of State
Patty Morneault
Director of Driver License Services
Print Date: March 8, 2011
Date of Birth: December 17, 1968
License Number/Class: 1491178/C
License Expiration: December 17, 2012
APPENDIX UU
Notice of Suspension and Opportunity for Hearing Dec. 17, 2009
APPENDIX VV
Medical Evaluation Request NOV. 2, 2009
APPENDIX WW
Driving Record 04/02/13
APPENDIX XX
Petition for Review of Final Agency Action MRCivP 80C
APPENDIX YY
Motion for Reconsideration Denied
APPENDIX ZZ
Defendants Motion for Reconsideration
APPENDIX AAA
Motion for Reconsideration
No. _____________
IN THE
APPENDIX, VOLUME IV
___________________________________________
Ignorance of those things that anyone is bound to know does not excuse.
Ignorantia excusatur non juris sed facti.
Ignorance of fact is excused but not ignorance of law.
Ignorantia facti excusat, ignorantia juris non excusat.
Ignorance of fact excuses; ignorance of law does not excuse. Every person must be
considered cognizant of the law; otherwise, there is no limit to the excuse of
ignorance.
Ignorantia judicis est calamitas innocentis.
The ignorance of the judge is the misfortune of the innocent.
Ignorantia juris non excusat.
Ignorance of the law does not excuse.
Ignorantia juris quod quisque scire tenetur neminem excusat.
Ignorance of the law, which everyone is bound to know, excuses no one.
Ignorantia juris sui non praejudicat juri.
Ignorance of one's right does not prejudice the right.
Ignorantia legis neminem excusat.
Ignorance of law excuses no one.
Ignorantia praesumitur ubi scientia non probatur.
Ignorance is presumed where knowledge is not proved.
Ignorare legis est lata culpa.
To be ignorant of the law is gross neglect of it.
Impius et crudelis judicandus est qui libertat; non favet.
A person is to be judged impious and cruel who does not favor liberty.
GinA v. State of Maine, Appendix
253a
The law is the rule of right; and whatever is contrary to the rule of right is an
injury.
Jus respicit aequitatem.
Law regards equity.
Justitia nemini neganda est.
Justice is to be denied to no one.
Justitia non est neganda, non differenda.
Justice is not to be denied or delayed.
La ley favour la vie d'un home.
The law favors a man's life.
Leges naturae perfectissimae sunt et immutabiles; humani vero juris conditio semper
in infinitum decurrit, et nihil est in eo quod perpetuo stare possit.
The laws of nature are most perfect and immutable; but the condition of human law
is an unending succession, and there is nothing in it that can stand forever.
Leges suum ligent latorem.
Laws should bind their own author.
Lex aequitate gaudet.
Law delights in equity.
Lex aequitate gaudet; appetit perfectum; est norma recti.
The law delights in equity: it covets perfection; it is a rule of right.
Lex nemin; facit injuriam.
The law does wrong to no one.
Libertas est naturalis facultas ejus quod cuique facere libet, nisi quod de jure aut vi
prohibetur.
GinA v. State of Maine, Appendix
255a
Liberty is the natural power of doing whatever one pleases, except what is
prevented by law or force.
Libertas omnibus rebus favorabilior est.
Liberty is more favored than all things.
Maxime ita dicta quia maxima est ejus dignitas et certissima auctoritas, atque quod
maxime omnibus probetur.
A maxim is so called because its dignity is chiefest and its authority is the most
certain, and because it is most approved by all.
Neminem laedit qui jure suo utitur.
A person who exercises his own rights injures no one.
Neminem oportet esse sapientiorem legibus.
No one ought to be wiser than the laws.
Obedientia est legis essentia.
Obedience is the essence of the law.
Quotiens dubia interpretatio libertatis est, secundum libertatem respondendum erit.
Whenever there is an interpretation doubtful as to liberty (or slavery), the decision
must be in favor of liberty.
Probandi necessitas incumbit illi qui agit.
The necessity of proving rests on the one who sues.
Regula est, juris quidem ignorantiam euique nocere, facti vero ignorantiam non
noeere.
The rule is that ignorance of the law is harmful (or prejudicial) to anyone, but
ignorance of a fact is not. Ignorance of a fact may excuse a party from the legal
consequences of his conduct, but not ignorance of law.
Regula pro lege, si deficit lex.
GinA v. State of Maine, Appendix
256a
license. A permission, usu. revocable, to commit some act that would otherwise be
unlawful.
originalism. Constitutional law. The theory that the U.S. Constitution should be
interpreted according to the intent of those who drafted and adopted it.
overbreadth doctrine. Constitutional law. The doctrine holding that if a statute is so
broadly written that it deters free expression, then it can be struck down on its face
because of its chilling effect - even if it also prohibits acts that may legitimately be
forbidden.
penalty. 1. Punishment imposed on a wrongdoer, usu. in the form of imprisonment
or fine; esp., a sum of money exacted as punishment for either a wrong to the state
or a civil wrong. Though usu. for crimes, penalties are also sometimes imposed for
civil wrongs.
civil penalty. A fine assessed for a violation of a statute or regulation.
statutory penalty. A penalty imposed for a statutory violation; esp., a penalty
imposing automatic liability on a wrongdoer for violation of a statute's terms
without reference to any actual damages suffered.
power. 1. The ability to act or not act; esp., a person's capacity for acting in such a
manner as to control someone else's responses. 2. Dominance, control, or influence
over another; control over one's subordinates. 3. The legal right or authorization to
act or not act; a person's or organization's ability to alter, by an act of will, the
rights, duties, liabilities, or other legal relations either of that person or of another.
privilege. 1. A special legal right, exemption, or immunity granted to a person or
class of persons; an exception to a duty. A privilege grants someone the legal
freedom to do or not to do a given act. It immunizes conduct that, under ordinary
circumstances, would subject the actor to liability.
public, adj. 1. Relating or belonging to an entire community, state, or nation. 2.
Open or available for all to use, share, or enjoy.
public, n. 1. The people of a nation or community as a whole. 2. A place open or
visible to the public.
punishment, n. 1. A sanction - such as a fine, penalty, confinement, or loss of
property, right, or privilege - assessed against a person who has violated the law.
reasonable suspicion. A particularized and objective basis, supported by specific and
articulable facts, for suspecting a person of criminal activity.
GinA v. State of Maine, Appendix
259a
CONSTITUTIONAL PROVISIONS
United States Constitution, Article IV, Section 2:
The Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.
United States Constitution, Article VI:
This Constitution, and the Laws of the United Statesshall be the supreme Law
of the Land; and the Judges in every State shall be bound thereby
United States Constitution, Amendment I:
Congress shall make no lawabridging the freedom of speech
United States Constitution, Amendment IV :
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated
United States Constitution, Amendment V:
No person shallbe deprived of life, liberty, or property, without due process of
law
United States Constitution, Amendment IIVX:
Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.
United States Constitution, Amendment IVX:
No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
CONSTITUTIONAL RESEARCH
CONSTITUTIONAL LAW: The Orphaned Right: The Right to Travel by
Automobile, 1890-1950
STATUTES
United States Code
18 U.S. Code 31(a) (6) Motor vehicle. The term motor vehicle means every
description of carriage or other contrivance propelled or drawn by mechanical power
and used for commercial purposes on the highways in the transportation of
passengers, passengers and property, or property or cargo.
18 U.S. Code 31(a) (10) Used for commercial purposes. The term used for
commercial purposes means the carriage of persons or property for any fare, fee,
rate, charge or other consideration, or directly or indirectly in connection with any
business, or other undertaking intended for profit.
18 U.S. Code 1589 - Forced labor
(a) Whoever knowingly provides or obtains the labor or services of a person
by any one of, or by any combination of, the following means
(1) by means of force, threats of force, physical restraint, or threats of
physical restraint to that person or another person;
(2) by means of serious harm or threats of serious harm to that person
or another person;
(3) by means of the abuse or threatened abuse of law or legal process;
or
(4) by means of any scheme, plan, or pattern intended to cause the
person to believe that, if that person did not perform such labor or
services, that person or another person would suffer serious harm or
physical restraint,
shall be punished as provided under subsection (d).
(b) Whoever knowingly benefits, financially or by receiving anything of value,
from participation in a venture which has engaged in the providing or
obtaining of labor or services by any of the means described in subsection (a),
knowing or in reckless disregard of the fact that the venture has engaged in
the providing or obtaining of labor or services by any of such means, shall be
punished as provided in subsection (d).
(c) In this section:
(1) The term abuse or threatened abuse of law or legal process means
the use or threatened use of a law or legal process, whether administrative,
civil, or criminal, in any manner or for any purpose for which the law was not
GinA v. State of Maine, Appendix
284a
wrongful neglect or refusal may be joined as defendants in the action; and if the
death of any party be caused by any such wrongful act and neglect, the legal
representatives of the deceased shall have such action therefor, and may recover not
exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if
there be one, and if there be no widow, then for the benefit of the next of kin of the
deceased. But no action under the provisions of this section shall be sustained which
is not commenced within one year after the cause of action has accrued.
42 U.S. Code 10801 - Congressional findings and statement of purpose
(a) The Congress finds that
(1) individuals with mental illness are vulnerable to abuse and serious
injury;
(2) family members of individuals with mental illness play a crucial role in
being advocates for the rights of individuals with mental illness where the
individuals are minors, the individuals are legally competent and choose to
involve the family members, and the individuals are legally incompetent and
the legal guardians, conservators, or other legal representatives are members
of the family;
(3) individuals with mental illness are subject to neglect, including lack of
treatment, adequate nutrition, clothing, health care, and adequate discharge
planning; and
(4) State systems for monitoring compliance with respect to the rights of
individuals with mental illness vary widely and are frequently inadequate.
(b) The purposes of this chapter are
(1) to ensure that the rights of individuals with mental illness are protected;
and
(2) to assist States to establish and operate a protection and advocacy system
for individuals with mental illness which will
(A) protect and advocate the rights of such individuals through
activities to ensure the enforcement of the Constitution and Federal
and State statutes; and
(B) investigate incidents of abuse and neglect of individuals with
mental illness if the incidents are reported to the system or if there is
probable cause to believe that the incidents occurred.
42 U.S. Code 10802 Definitions
For purposes of this subchapter:
GinA v. State of Maine, Appendix
287a
(1) The term abuse means any act or failure to act by an employee of a facility
rendering care or treatment which was performed, or which was failed to be
performed, knowingly, recklessly, or intentionally, and which caused, or may have
caused, injury or death to a [1] individual with mental illness, and includes acts
such as
(A) the rape or sexual assault of a [1] individual with mental illness;
(B) the striking of a [1] individual with mental illness;
(C) the use of excessive force when placing a [1] individual with mental
illness in bodily restraints; and
(D) the use of bodily or chemical restraints on a [1] individual with mental
illness which is not in compliance with Federal and State laws and
regulations.
(2) The term eligible system means the system established in a State to protect
and advocate the rights of persons with developmental disabilities under subtitle C
of the Developmental Disabilities Assistance and Bill of Rights Act of 2000
[42 U.S.C. 15041 et seq.].
(3) The term facilities may include, but need not be limited to, hospitals, nursing
homes, community facilities for individuals with mental illness, board and care
homes, homeless shelters, and jails and prisons.
(4) The term individual with mental illness means, except as provided in
section 10804 (d) of this title, an individual
(A) who has a significant mental illness or emotional impairment, as
determined by a mental health professional qualified under the laws and
regulations of the State; and
(B)
(i)
(I) who is an inpatient or resident in a facility rendering care or
treatment, even if the whereabouts of such inpatient or resident
are unknown;
(II) who is in the process of being admitted to a facility
rendering care or treatment, including persons being
transported to such a facility; or; [2]
(III) who is involuntarily confined in a municipal detention
facility for reasons other than serving a sentence resulting from
conviction for a criminal offense; or
(ii) who satisfies the requirements of subparagraph (A) and lives in a
community setting, including their own home.
(5) The term neglect means a negligent act or omission by any individual
responsible for providing services in a facility rendering care or treatment which
caused or may have caused injury or death to a [1] individual with mental illness or
which placed a [1] individual with mental illness at risk of injury or death, and
includes an act or omission such as the failure to establish or carry out an
appropriate individual program plan or treatment plan for a [1] individual with
mental illness, the failure to provide adequate nutrition, clothing, or health care to
GinA v. State of Maine, Appendix
288a
a [1] individual with mental illness, or the failure to provide a safe environment for
a [1] individual with mental illness, including the failure to maintain adequate
numbers of appropriately trained staff.
(6) The term Secretary means the Secretary of Health and Human Services.
(7) The term State means each of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, the Commonwealth of the Northern Mariana
Islands, American Samoa, the Virgin Islands, and the Trust Territory of the Pacific
Islands.
42 U.S. Code 9501 - Bill of Rights and
42 U.S. Code 10841 - Restatement of bill of rights
It is the sense of the Congress that, as previously stated in title V of the Mental
Health Systems Act [42 U.S. Code 9501 et seq.], each State should review and
revise, if necessary, its laws to ensure that mental health patients receive the
protection and services they require, and that in making such review and revision,
States should take into account the recommendations of the Presidents
Commission on Mental Health and the following:
(1) A person admitted to a program or facility for the purpose of receiving mental
health services should be accorded the following:
(A) The right to appropriate treatment and related services in a setting and
under conditions that
(i) are the most supportive of such persons personal liberty; and
(ii) restrict such liberty only to the extent necessary consistent with
such persons treatment needs, applicable requirements of law, and
applicable judicial orders.
(B) The right to an individualized, written, treatment or service plan (such
plan to be developed promptly after admission of such person), the right to
treatment based on such plan, the right to periodic review and reassessment of
treatment and related service needs, and the right to appropriate revision of such
plan, including any revision necessary to provide a description of mental health
services that may be needed after such person is discharged from such program or
facility.
(C) The right to ongoing participation, in a manner appropriate to such
persons capabilities, in the planning of mental health services to be provided such
person (including the right to participate in the development and periodic revision
of the plan described in subparagraph (B)), and, in connection with such
participation, the right to be provided with a reasonable explanation, in terms and
language appropriate to such persons condition and ability to understand, of
GinA v. State of Maine, Appendix
289a
(3)
(4)
(D) Each program and facility should post a notice listing and describing, in
language and terms appropriate to the ability of the persons to whom such
notice is addressed to understand, the rights described in this section of all
persons admitted to such program or facility. Each such notice should
conform to the format and content for such notices, and should be posted in
all appropriate locations.
(A) In the case of a person adjudicated by a court of competent jurisdiction as
being incompetent to exercise the right to consent to treatment or
experimentation described in subparagraph (D) or (E) of paragraph (1), or the
right to confidentiality of or access to records described in subparagraph (H)
or (I) of such paragraph, or to provide authorization as described in
paragraph (3)(C)(iii), such right may be exercised or such authorization may
be provided by the individual appointed by such court as such persons
guardian or representative for the purpose of exercising such right or such
authorization.
(B) In the case of a person who lacks capacity to exercise the right to consent
to treatment or experimentation under subparagraph (D) or (E) of paragraph
(1), or the right to confidentiality of or access to records described in
subparagraph (H) or (I) of such paragraph, or to provide authorization as
described in paragraph (3)(C)(iii), because such person has not attained an
age considered sufficiently advanced under State law to permit the exercise of
such right or such authorization to be legally binding, such right may be
exercised or such authorization may be provided on behalf of such person by a
parent or legal guardian of such person.
(C) Notwithstanding subparagraphs (A) and (B), in the case of a person
admitted to a program or facility for the purpose of receiving mental health
services, no individual employed by or receiving any remuneration from such
program or facility should act as such persons guardian or representative.
verifies the authority of the operator. The registered owner must be notified
immediately of the impoundment.
4. Violation. A person is guilty of a Class E crime if a law enforcement officer has
probable cause to believe the person violated or is violating this Title and the person
intentionally fails or refuses upon request to give the person's correct name, address
or date of birth to a law enforcement officer.
29-A M.R.S. 112. Notice Of Hearing
Notice of any hearing held by the Secretary of State or by the Secretary of State's
authority under this Title must be consistent with Title 5, section 9052 and notify
the licensee or registrant that the licensee or registrant may then and there appear,
in person or through counsel, to show cause why that license or certificate of
registration should not be suspended or revoked. Service of that notice is sufficient
if sent by regular mail to the address given by the licensee or registrant at least 10
days before the date set for hearing.
29-A M.R.S. 113. Computer Transcripts as Evidence
1. Transcript. A properly certified transcript of entries of conviction, adjudication,
suspension or revocation in official records stored within a computer or data
processing device is admissible in evidence to show the truth of the facts stated in
the transcript.
2. Certification. A transcript may be certified by:
A. A clerk or deputy clerk of any judicial division of the District Court or the
violations bureau for records from a judicial division or the violations bureau;
B. A clerk or deputy clerk of a Superior Court for Superior Court records; or
C. The Secretary of State for any court's records received by the Secretary of
State from a court, including records received by electronic means.
3. Secretary of State's certification. Notwithstanding any other law or rule of
evidence, the certificate of the Secretary of State or a deputy, under seal of the
State, must be received in a judicial or administrative proceeding as prima facie
evidence of any fact stated in the certificate or documents attached to the
certificate.
29-A M.R.S. 256. Federal Driver's Privacy Protection Act of 1994
The Secretary of State shall comply with the provisions of Title 18, United States
Code, Chapter 123 in disclosing records.
29-A M.R.S. 351. Registration Required
The owner of a vehicle that is operated or remains on a public way is responsible for
registering the vehicle.
1. Failure to register. A person who operates a vehicle that is not registered in
accordance with this Title, fails to register a vehicle or permits a vehicle that is not
registered to remain on a public way commits:
GinA v. State of Maine, Appendix
299a
A. A traffic infraction for which a forfeiture of not more than $50 may be adjudged if
the vehicle was registered and the registration has been expired for more than 30
days but less than 150 days; or
B. A Class E crime if the vehicle was not registered or the registration has been
expired for 150 days or more.
1-A. Residents required to register. An owner of a vehicle who becomes a resident of
this State shall register that vehicle in this State within 30 days of establishing
residency. A person who operates or allows a vehicle that is not registered in
accordance with this subsection to remain on a public way commits:
A. A traffic infraction for which a fine of not more than $50 may be adjudged if more
than 30 days but less than 150 days has elapsed since establishing residency; or
B. A Class E crime if more than 150 days have elapsed since establishing residency.
29-A M.R.S. 1251. License required
1. Violation. Except as provided in section 510, subsection 1, a person commits
an offense of operating a motor vehicle without a license if that person operates a
motor vehicle on a public way or parking area:
A. Without being licensed. Violation of this paragraph is a Class E crime, which is a
strict liability crime as defined in Title 17-A, section 34, subsection 4-A;
B. In violation of a condition or restriction on the license. Violation of this
paragraph is a Class E crime, which is a strict liability crime as defined in Title 17A, section 34, subsection 4-A;
C. Without a license issued by this State if a resident of this State for more than 30
days but fewer than 90 days. Violation of this paragraph is a traffic infraction;
D. Without a license issued by this State if a resident of this State for more than 90
days. Violation of this paragraph is a Class E crime, which is a strict liability crime
as defined in Title 17-A, section 34, subsection 4-A; or
E. Unless a permit is issued pursuant to subsection 7, with a license issued by this
State that expired within the previous 90 days. Violation of this paragraph is a
traffic infraction.
1-A. Residents required to obtain license. Within 30 days of becoming a resident of
this State, a person shall apply to obtain a license in accordance with section 1301.
Except as provided in section 510, subsection 1, a person who fails to comply with
the requirement of this subsection and operates a motor vehicle on a public way or
parking area commits:
A. A traffic infraction if the person has been a resident for less than 90 days; or
B. A Class E crime if the person has been a resident for at least 90 days.
2. Penalty.
3. Issue restrictions. A person may not receive a license unless:
A. That person surrenders all valid licenses in that person's possession issued by
any jurisdiction; and
B. The Secretary of State is satisfied that the applicant is a proper person to receive
a license.
GinA v. State of Maine, Appendix
300a
4. Number limited. A person may not have more than one valid license, unless
authorized by the Secretary of State. A person may not have more than one
commercial license.
5. Age limit. A license, except a special restricted license under section 1256, may
not be issued to a person who has not attained 16 years of age.
6. Exemptions. The following people are exempt from the license requirements of
this chapter:
A. A nonresident who is 16 years of age or older and who has in that person's
possession a valid license or learner's permit issued by that person's state or
province. A nonresident operator shall adhere to all restrictions applied to the
license or learner's permit issued by that person's state or province. A nonresident
who is not yet 16 years of age may not operate a motor vehicle;
B. A person on active duty in the United States Armed Forces, if that person
possesses:
(1) A valid license issued by that person's state of domicile; or
(2) For a period of 45 days after return from duty outside the United States, a valid
license issued by the United States Armed Forces in foreign countries;
C. A spouse of a member of the United States Armed Forces while accompanying
that member on active duty assignment to this State, and who is not a resident of
this State and who has a valid license issued by another jurisdiction; and
D. A person operating a motor vehicle in a parking area under the supervision of an
instructor during career and technical education as defined by Title 20-A, section
8301-A, subsection 2-A.
7. Temporary permit to operate a motor vehicle with an expired license. Upon
stopping an operator of a motor vehicle who is in violation of subsection 1,
paragraph E, a law enforcement officer may issue a permit to the operator of the
motor vehicle to operate the motor vehicle to the operator's residence or to an office
of the bureau for the sole purpose of renewing the operator's license.
29-A M.R.S. 1253. Commercial Licenses
1. Classifications. A Class A or Class B license, or a Class C license carrying an
endorsement under subsection 3, is a commercial license.
2. Compliance with federal law. The State must comply with the Commercial Motor
Vehicle Safety Act of 1986, Public Law 99-570, Title XII, the federal Motor Carrier
Safety Improvement Act of 1999, Public Law 106-159, 113 Stat. 1748 and
regulations adopted under those Acts in issuing or suspending a commercial license.
In the case of any conflict between the federal statute or regulation and a statute or
rule of this State, the federal statute or regulation must apply and take precedence.
To ensure compliance, the Secretary of State shall adopt rules, administrative
procedures, practices and policies, organizational structures, internal control
mechanisms and resource assignments.
These compliance measures must include, but are not limited to, provisions that:
A. Provide for full state participation in the national commercial driver's license
clearinghouse;
GinA v. State of Maine, Appendix
301a
C. The Secretary of State may request that the board interview in person someone
whose ability to operate a motor vehicle safely is unascertainable through written
reports or records.
5. Suspension pending compliance. The license of a person under review who
refuses to submit to an examination or to provide information as requested by the
Secretary of State pursuant to this subchapter may be suspended until the
individual complies with the request.
29-A M.R.S. 1407. Change of Location or Status
When a person, after applying for or receiving a driver's license or registration,
moves from the address named in the application or on the license or registration
issued or changes name, that person shall, within 30 days, notify the Secretary of
State, in writing or by other means approved by the Secretary of State, of the old
and new addresses or former and new names and of the number of the licenses and
registrations held.
29-A M.R.S. 2412-A. Operating While License Suspended Or Revoked
1. Offense; penalty.
1-A. Offense; penalty. A person commits operating while license suspended or
revoked if that person:
A. Operates a motor vehicle on a public way or in a parking area when that person's
license has been suspended or revoked, and that person:
(1) Has received written notice of a suspension or revocation from the Secretary of
State or a court;
(2) Has been orally informed of the suspension or revocation by a law enforcement
officer or a court;
(3) Has actual knowledge of the suspension or revocation;
(4) Has been sent written notice in accordance with section 2482 or former Title 29,
section 2241, subsection 4; or
(5) Has failed to answer or to appear in court pursuant to a notice or order specified
in section 2605 or 2608; B. Violates paragraph A and the suspension was for OUI or
an OUI offense;
C. Violates paragraph A and the suspension was for OUI or an OUI offense, the
person was subject to the mandatory minimum sentence and the person:
(1) Has one prior conviction for violating this section;
(2) Has 2 prior convictions for violating this section; or
(3) Has 3 or more prior convictions for violating this section; or D. Violates
paragraph A, the suspension was not for OUI or an OUI offense and the person has
one or more prior convictions for violating this section.
Except for an offense under subsection 8 or as otherwise provided, operating while
license suspended or revoked is a Class E crime, which is a strict liability crime as
defined in Title 17-A, section 34, subsection 4-A.
2. Exception. This section does not apply to a person whose license has been revoked
under the laws in subchapter V governing habitual offenders.
GinA v. State of Maine, Appendix
303a
3. Minimum mandatory sentences for certain suspension. If the suspension was for
OUI or an OUI offense, the court shall impose a minimum fine of $600, a term of
imprisonment of 7 consecutive days and a suspension of license of not less than one
year nor more than 3 years consecutive to the original suspension.
The penalties may not be suspended.
A. If the person has a prior conviction for violating this section within a 10-year
period and was subject to the minimum mandatory sentences, then the following
minimum penalties, which may not be suspended by the court, apply in the event
the suspension was for OUI:
(1) A minimum fine of $1,000, a term of imprisonment of 30 consecutive days and a
suspension of license for not less than one year nor more than 3 years consecutive to
the original suspension in the event of one prior conviction;
(2) A minimum fine of $2,000, a term of imprisonment of 60 consecutive days and a
suspension of license for not less than one year nor more than 3 years consecutive to
the original suspension in the event of 2 prior convictions; or
(3) A minimum fine of $3,000, a term of imprisonment of 6 months and a suspension
of license for not less than one year nor more than 3 years consecutive to the
original suspension in the event of 3 or more prior convictions. The sentencing class
for this offense is a Class C crime. B. For all other suspensions, the minimum fine
for a first offense is $250, which may not be suspended by the court. The minimum
fine for 2nd and subsequent offenses is $500, which may not be suspended by the
court. A separate reading of the allegation and a separate trial are not required
under this subsection.
4. Suspension of license. The following provisions apply when a person's license is
required to be suspended under this section.
A. The court shall give notice of the suspension and shall take physical custody of
an operator's license or permit as provided in section 2434.
B. If the court fails to impose a suspension as provided in subsection 3, the
Secretary of State shall impose the minimum one-year suspension.
C. The minimum mandatory sentences of subsection 3 apply only to the original
period of suspension imposed by the court or the Secretary of State or as extended
by the Secretary of State. The minimum mandatory sentences of subsection 3 do not
apply to any extension of the original suspension imposed to compel a person's
compliance with conditions for the restoration of a license or for failure to pay a
reinstatement fee for a license. 5. Prior convictions. For purposes of this section, a
prior conviction or suspension has occurred within a 10-year period if the date of the
suspension or the docket entry of a judgment of conviction by the clerk is 10 years or
less from the date of the new conduct that is penalized or for which the new penalty
may be enhanced.
6. Ignition interlock device.
7. Ignition interlock device. As a condition of license reinstatement, the Secretary of
State, pursuant to section 2508, may require a person subject to the minimum
mandatory sentencing provisions of subsection 3 to have installed in the motor
vehicle the person operates for a period of up to 2 years an ignition interlock
GinA v. State of Maine, Appendix
304a
The rules must include a designated level of point accumulation that identifies
those drivers.
The Secretary of State may assess points for convictions or adjudications in other
states or provinces of offenses that, if committed in this State, would be grounds for
assessment.
Notice of assessment of points must be given when the point accumulation reaches
50% of the number at which suspension is authorized.
Points may not be assessed for violating a provision of this Title or a municipal
ordinance regulating standing, parking, equipment, size or weight.
4. Notice of hearing. Upon suspending or revoking a certificate of title, certificate of
registration, license or fuel use decal pursuant to subsection 2, the Secretary of
State shall notify that person of opportunity for hearing as provided in section 2483,
except when:
A. The suspension or revocation rests solely upon a conviction in court of an offense
that by statute is expressly made grounds for that suspension or revocation;
B. The basis of the Secretary of State's action is a condition of bail or conditional
release pursuant to subsection 2, paragraph Q; or
C. The suspension or revocation is required by federal statute or regulation.
29-A M.R.S. 2482. Notice of Suspension or Revocation of License
1. Notification by Secretary of State. Upon determining that a person is subject to
license suspension or revocation, the Secretary of State shall immediately notify the
person, in writing, of the license suspension or revocation. The notice:
A. Must be sent to the last name and address provided under section 1407 or, if the
person has not applied for a license, on record with the Secretary of State;
B. 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 C. May be served in hand.
2. Notice contents. The notice must clearly state:
A. The reason and statutory grounds for the suspension or revocation; B. The
effective date of the suspension or revocation; C. Unless the suspension or
revocation is ordered by a court or rests solely upon a conviction or
adjudication in court of an offense that is, by statute, expressly made grounds for
that suspension or revocation, the right of the person to request a hearing and the
procedure for requesting a hearing; and
D.
E.
F. If the suspension or revocation is based on a report under section 2453-A or 2481,
that a copy of the report of the law enforcement officer and any alcohol test
certificate and the confirmed positive drug or metabolite test result and the report
of the drug recognition expert will be provided to the person upon request to the
Secretary of State.
3. Receipt date. The notice is deemed received 3 days after mailing, unless returned
by postal authorities.
GinA v. State of Maine, Appendix
306a
169.985
or criminal punishment and shall not affect or impair the credibility as a witness or
otherwise of any person convicted thereof.
LEGISLATION
http://www.legis.ga.gov/Legislation/20112012/108135.pdf
11
LC 34 2781
http://www.njleg.state.nj.us/2014/Bills/A3500/3457_I1.PDF
ASSEMBLY, No. 3457
STATE OF NEW JERSEY, 216th LEGISLATURE
INTRODUCED JUNE 26, 2014
Sponsored by:
Assemblyman DECLAN J. O'SCANLON, JR.
District 13 (Monmouth)
Co-Sponsored by:
Assemblywoman McHose, Assemblymen Space and Webber
SYNOPSIS
Prohibits law enforcement agencies from considering number of arrests made and
citations issued when evaluating police officers professional performance.
CURRENT VERSION OF TEXT
As introduced.
(Sponsorship Updated As Of: 9/12/2014)
AN ACT concerning quotas for arrests and citations and amending P.L.2000, c.164.
BE IT ENACTED by the Senate and General Assembly of the State of New Jersey:
1. Section 2 of P.L.2000, c.164 (C.40A:14-181.2) is amended to read as follows:
2. a. A State, county or municipal police department or force engaged in the
enforcement of Title 39 of the Revised Statutes or any local ordinance adopted
pursuant to this title shall not establish any quota for arrests or citations. The
department or force may, however, collect, analyze and apply information
concerning the number of arrests and citations in order to ensure that a particular
officer or group of officers does not violate any applicable legal obligation and for the
purpose of forwarding that information to the Superintendent of State Police for
inclusion in the Uniform Crime Report.
b. The department or force shall not use the number of arrests or citations
issued by a law enforcement officer [as the sole] when evaluating the performance of
a law enforcement officer, or as a criterion for promotion, demotion, dismissal,
discipline, or the earning of any benefit provided by the department or force. [Any
such arrests or citations, and their ultimate dispositions, may be considered in
evaluating the overall performance of a law enforcement officer.] EXPLANATION
GinA v. State of Maine, Appendix
311a
Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is
intended to be omitted in the law. Matter underlined thus is new matter.
(cf: P.L.2000, c.164, s.2)
2. This act shall take effect immediately.
STATEMENT
This bill prohibits law enforcement agencies from using the volume of an officers
arrests or citations as a factor when evaluating that officers overall performance or
when making personnel determinations such as promotions, demotions and other
benefits of employment. The bill provides that a law enforcement agency may
collect, analyze and apply information concerning the number of arrests and
citations for the purpose of forwarding that information to the Superintendent of
State Police for inclusion in the Uniform Crime Report.
Under current law, State and local law enforcement agencies are prohibited from
establishing policies requiring officers to meet quotas for arrests and citations in
enforcing the States motor vehicle code. However, these agencies may consider
arrest and citation data as part of the officer's overall performance evaluation. This
bill prohibits this practice.
2015
STATE OF WYOMING
15LSO-0366
http://legisweb.state.wy.us/2015/Introduced/HB0125.pdf
HOUSE BILL NO. HB0125
Law enforcement citation quotas-prohibition.
Sponsored by: Representative(s) Pelkey, Baker, Byrd,
Edmonds, Esquibel, K., Halverson, Kroeker
and Krone and Senator(s) Rothfuss
A BILL
for
AN ACT relating to regulation of traffic on highways; prohibiting the use of citation
quotas by law enforcement for traffic violations; and providing for an effective date.
Be It Enacted by the Legislature of the State of Wyoming:
Section 1. W.S. 31-5-1215 is created to read:
31-5-1215. Citation quotas prohibited.
(a) No state, county, municipal or other governmental entity engaged in the
enforcement of any motor vehicle laws of this state or any local ordinance governing
motor vehicle traffic, may establish or maintain any policy, formally or informally,
requiring any officer to meet a quota or suggest, formally or informally, a quota for
any such officer.
(b) As used in this section:
(i) "Officer" means any peace officer as defined in W.S. 7-2-101(a)(iv)(A) and (B); and
(ii) "Quota" means any requirement regarding the number of arrests or
investigative stops made, or summonses or citations issued, by an officer regarding
motor vehicle traffic violations.
Section 2. This act is effective July 1, 2015.
(END)
http://www.azleg.gov/legtext/52leg/1r/bills/hb2410h.pdf
State of Arizona HOUSE BILL 2410
House of Representatives
Fifty-second Legislature
First Regular Session
2015
House Engrossed
AN ACT
AMENDING TITLE 9, CHAPTER 4, ARTICLE 8, ARIZONA REVISED
STATUTES, BY ADDING SECTION 9-500.34; AMENDING TITLE 11, CHAPTER
3, ARTICLE 2, ARIZONA REVISED STATUTES, BY ADDING SECTION 11459.02; AMENDING TITLE 41, CHAPTER 12, ARTICLE 3, ARIZONA REVISED
STATUTES, BY ADDING SECTION 41-1757; RELATING TO MUNICIPAL LAW
ENFORCEMENT.
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 9, chapter 4, article 8, Arizona Revised Statutes, is amended by
adding section 9-500.34, to read:
9-500.34. Traffic complaint quota; determination of rank or classification based on
traffic complaints;
prohibition
A MUNICIPALITY OR POLICE DEPARTMENT MAY NOT ESTABLISH A
TRAFFIC COMPLAINT QUOTA FOR PEACE OFFICERS EMPLOYED BY THE
POLICE DEPARTMENT, BASE THE DETERMINATION OF A PEACE
OFFICER'S RANK OR CLASSIFICATION ON THE NUMBER OF TRAFFIC
COMPLAINTS THE PEACE OFFICER ISSUES OR CONSIDER AS A FACTOR
THE NUMBER OF TRAFFIC COMPLAINTS A PEACE OFFICER ISSUES WHEN
DETERMINING THE PEACE OFFICER'S RANK OR CLASSIFICATION.
Sec. 2. Title 11, chapter 3, article 2, Arizona Revised Statutes, is amended by adding
section 11-459.02, to read:
11-459.02. Traffic complaint quota; determination of rank or classification based on
traffic complaints;
prohibition
A BOARD OF SUPERVISORS OR SHERIFF MAY NOT IMPLEMENT A
TRAFFIC COMPLAINT QUOTA FOR PEACE OFFICERS EMPLOYED BY THE
SHERIFF'S DEPARTMENT, BASE THE DETERMINATION OF A PEACE
OFFICER'S RANK OR CLASSIFICATION ON THE NUMBER OF TRAFFIC
COMPLAINTS THE PEACE OFFICER ISSUES OR CONSIDER AS A FACTOR
GinA v. State of Maine, Appendix
314a
http://docs.legis.wisconsin.gov/statutes/statutes/349/I/025
WISCONSIN STATE LEGISLATURE
CHAPTER 349
VEHICLES POWERS OF STATE AND LOCAL AUTHORITIES
SUBCHAPTER I
GENERAL PROVISIONS
349.025 Quotas relating to the enforcement of traffic regulations
prohibited.
(1) In this section:
(a) "Law enforcement officer" has the meaning given in s. 165.85 (2) (c).
(b) "Political subdivision" means a city, village, town or county.
(c) "State agency" means an office, commission, department or independent
agency in the executive branch of state government.
(d) "Traffic regulation" means a provision of chs. 194 or 341 to 348 or an
ordinance enacted in accordance with this chapter.
(2) No state agency or political subdivision of this state may require a law
enforcement officer to issue a specific number of citations, complaints or warning
notices during any specified time period for violations of traffic regulations.
(3) A state agency or political subdivision may, for purposes of evaluating a law
enforcement officer's job performance, compare the number of citations, complaints
or warning notices issued by the law enforcement officer to the number of citations,
complaints or warning notices issued by all law enforcement officers employed by
the state agency or political subdivision who have similar job duties and who serve
in the same administrative unit as the law enforcement officer.
History: 1999 a. 16.
https://www.legis.iowa.gov/docs/code/321.492a.pdf
Iowa Code - 2015
Title VIII TRANSPORTATION
CHAPTER 321 MOTOR VEHICLES AND LAW OF THE ROAD
321.492A QUOTAS ON CITATIONS PROHIBITED.
A political subdivision or agency of the state shall not order,
mandate, require, or in any other manner, directly or indirectly,
suggest to a peace officer employed by the political subdivision or
agency that the peace officer shall issue a certain number of traffic
citations, police citations, memorandums of traffic violations, or
memorandums of faulty equipment on a daily, weekly, monthly,
quarterly, or yearly basis.
Section History: Recent Form
85 Acts, ch 226, 1; 96 Acts, ch 1034, 25
RULES
Federal Rules of Evidence
Rule 410. Pleas, Plea Discussions, and Related Statements
(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not
admissible against the defendant who made the plea or participated in the plea
discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made during a proceeding on either of those pleas
under Federal Rule of Criminal Procedure 11 or a comparable state
procedure; or
(4) a statement made during plea discussions with an attorney for the
prosecuting authority if the discussions did not result in a guilty plea or they
resulted in a later-withdrawn guilty plea.
(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
(1) in any proceeding in which another statement made during the same plea
or plea discussions has been introduced, if in fairness the statements ought to
be considered together; or
(2) in a criminal proceeding for perjury or false statement, if the defendant
made the statement under oath, on the record, and with counsel present.
Maine Rules of Evidence
Rule 410. Pleas, Plea Discussions, and Related Statements
In a civil or criminal case, evidence of the following is not admissible against the
person who made the plea or participated in the plea discussions:
(a)
A guilty plea that was later withdrawn;
(b)
A nolo contendere plea;
(c)
A statement made in connection with a guilty or nolo contendere plea or
during a proceeding on either of those pleas under Maine Rule of Criminal
Procedure 11 or a comparable Federal or state procedure; or
(d)
An offer to plead guilty or nolo contendere..
Maine Rules of Criminal Procedure
RULE 16. Discovery by the Defendant
(a)
Automatic Discovery.
(1)
Duty of the Attorney for the State. The attorney for the state shall furnish to
the defendant within a reasonable time:
(A)
A statement describing any testimony or other evidence intended to be used
against the defendant which:
GinA v. State of Maine, Appendix
318a
(i)
Was obtained as a result of a search and seizure or the hearing or recording
of a wire or oral communication;
(ii)
Resulted from any confession, admission, or statement made by the
defendant; or
(iii) Relates to a lineup, showup, picture, or voice identification of the defendant.
(B)
Any written or recorded statements and the substance of any oral statements
made by the defendant.
(C)
A statement describing any matter or information known to the attorney for
the state which may not be known to the defendant and which tends to create a
reasonable doubt of the defendants guilt as to the crime charged.
(D)
A copy of any notification provided to the Superior Court by the attorney for
the state pursuant to Rule 6(h) that pertains to the case against the defendant.
(2)
Continuing Duty to Disclose. The attorney for the state shall have a
continuing duty to disclose the matters specified in this subdivision.
(3)
Charge of a Class D or Class E Crime in District Court. Discovery shall be
provided to a defendant charged with a Class D or Class E crime in District Court
within 10 days of arraignment.
(b)
Discovery Upon Request.
(1)
Duty of the Attorney for the State. Upon the defendants written request, the
attorney for the state, except as provided in subdivision (3), shall allow access at
any reasonable time to those matters specified in subdivision (2) which are within
the attorney for the states possession or control. The attorney for the states
obligation extends to matters within the possession or control of any member of the
attorney for the states staff and of any official or employee of this state or any
political subdivision thereof who regularly reports or with reference to the
particular case has reported to the attorney for the states office. In affording this
access, except as otherwise limited by 15 M.R.S. 1121 relative to sexually explicit
material, the attorney for the state shall allow the defendant at any reasonable time
and in any reasonable manner to inspect, photograph, copy, or have reasonable
tests made.
(2)
Scope of Discovery. The following matters are discoverable:
(A)
Any books, papers, documents, photographs (including motion pictures and
video tapes), tangible objects, buildings or places, or copies or portions thereof,
which are material to the preparation of the defense or which the attorney for the
state intends to use as evidence in any proceeding or which were obtained or belong
to the defendant;
(B)
Any reports or statements of experts, made in connection with the particular
case, including results of physical or mental examinations and of scientific tests,
experiments, or comparisons;
(C)
The names and, except as provided in Title 17-A M.R.S. 1176(4), addresses
of the witnesses whom the state intends to call in any proceeding;
(D)
Written or recorded statements of witnesses and summaries of statements of
witnesses contained in police reports or similar matter;
GinA v. State of Maine, Appendix
319a
(E)
The dates of birth of the witnesses the state intends to call in any proceeding.
The fact that a listed witness is not called shall not be commented upon at trial.
(3)
Exception: Work Product. Disclosure shall not be required of legal research or
of records, correspondence, reports, or memoranda to the extent that they contain
the mental impressions, conclusions, opinions, or legal theories of the attorney for
the state or members of his or her legal staff.
(4)
Continuing Duty to Disclose. If matter which would have been furnished to
the defendant under this subdivision comes within the attorney for the states
possession or control after the defendant has had access to similar matter, the
attorney for the state shall promptly so inform the defendant.
(5)
Charge of a Class D or Class E Crime in District Court. Discovery shall be
provided to a defendant charged with a Class D or Class E crime in District Court
within 10 days of the request.
(6)
Protective Order. Upon motion of the attorney for the state, and for good
cause shown, the court may make any order which justice requires.
(c)
Discovery Pursuant to Court Order.
(1)
Bill of Particulars. The court for cause may direct the filing of a bill of
particulars if it is satisfied that counsel has exhausted the discovery remedies under
this rule or it is satisfied that discovery would be ineffective to protect the rights of
the defendant. The bill of particulars may be amended at any time subject to such
conditions as justice requires.
(2)
Grand Jury Transcripts. Discovery of transcripts of testimony of witnesses
before a grand jury is governed by Rule 6.
(3)
Order for Preparation of Report by Expert Witness. If an expert witness
whom the state intends to call in any proceeding has not prepared a report of
examination or tests, the court, upon motion, may order that the expert prepare and
the attorney for the state serve a report stating the subject matter on which the
expert is expected to testify, the substance of the facts to which the expert is
expected to testify and a summary of the experts opinions and the grounds for each
opinion.
(d)
Sanctions for Noncompliance. If the attorney for the state fails to comply with
this rule, the court on motion of the defendant or on its own motion may take
appropriate action, which may include, but is not limited to, one or more of the
following: requiring the attorney for the state to comply, granting the defendant
additional time or a continuance, relieving the defendant from making a disclosure
required by Rule 16A, prohibiting the attorney for the state from introducing
specified evidence and dismissing charges with prejudice.
Maine Rules of Appellate Procedure
Rule 3. Docketing the Appeal
(a) Law Court Docket. Upon receipt of the notice of appeal and, when required, the
requisite fee or waiver, the trial court clerk shall mark the case Law on the
GinA v. State of Maine, Appendix
320a
docket. The trial court clerk shall then transmit a copy of the notice of appeal
together with a copy of all docket entries to the Clerk of the Law Court.
Upon receipt of the copies of the notice of appeal and the docket entries, the Clerk of
the Law Court shall forthwith docket the appeal and send each party of record a
written notice of the docketing, the Law Court docket number, and the date within
which the record on appeal and the reporters transcript must be filed.
(b) Further Trial Court Action. The trial court shall take no further action pending
disposition of the appeal by the Law Court except: (1) in criminal cases, the
appointment of counsel for an indigent defendant; the granting of stay of execution
and the fixing or revocation of bail pending appeal; and proceedings either for a new
trial or for the correction or reduction of a sentence under M.R.Crim. P. 35(a) or (c);
Rule 14. Mandate; Reconsideration; and Suspension of the Rules in the
Law Court
(b) Motions for Reconsideration.
(1) A motion for reconsideration of any decision of the Law Court, together with the
fee specified in the Court Fees Schedule, shall be filed with the Clerk of the Law
Court within 14 days after the date of that decision. An original and seven copies of
the motion and any supporting papers shall be filed and shall conform to Rule 9(f).
The motion shall state with particularity the points of law or fact that the moving
party asserts the Court has overlooked or misapprehended and shall contain such
argument in support of the motion as the moving party desires to present. No
response to a motion for reconsideration shall be filed unless requested by the Law
Court. The motion is not subject to oral argument except by specific order of the
Court.
(2) A motion for reconsideration will not be granted except at the instance of a
justice who concurred in the decision and with the concurrence of a majority of the
justices who participated in the original decision and are still available and
qualified to act on the motion.
(3) If a motion for reconsideration is granted, the Law Court may make a final
disposition of the cause without reargument or may restore it to the calendar for
reconsideration or may make such other orders as are appropriate. Frivolous or
repetitive motions for reconsideration may result in the imposition of appropriate
sanctions.
(c) Suspension of Rules. In the interest of expediting decision upon any matter, or
for other good cause shown, the Law Court may modify or suspend any of the
requirements or provisions of these Rules, except those of Rule 2 and those of Rule
14(b), on application of a party or on its own motion, and may order proceedings in
accordance with its direction.
SECRETARY OF STATE
BUREAU OF MOTOR VEHICLES
1.
PURPOSE
Pursuant to 29-A M.R.S. Section 2458, subsection 3, the Secretary of State has adopted these
rules for the purpose of identifying the reckless or negligent driver of a motor vehicle and to
establish a uniform system of assigning demerit points for specified convictions or adjudications
of violations of statutes and regulations governing the operation of motor vehicles. These rules
will serve as the basis for the Secretary of State or any Deputy Secretary of State to suspend the
license or privilege to operate a motor vehicle or the certificate of registration of any person
without preliminary hearing determined to be incompetent to operate a motor vehicle, or whom is
found to be a reckless or negligent operator of a motor vehicle, or whom has been convicted or
adjudicated of designated traffic offenses.
2.
7.
Every person holding a Maine operator's license whose driving record does not contain any
convictions, adjudications, suspensions or revocations during a calendar year shall be awarded
one (1) violation free credit at the end of each calendar year, except that no person may be
permitted to accumulate more than four (4) violation free credits. The Secretary of State may
apply such credits to offset an equivalent number of demerit points assigned to a traffic violation.
If the Secretary of State receives notice of any motor vehicle violation which resulted in a
conviction or adjudication which violation occurred during the period that violation free credits
were awarded, the violation free credits shall become invalid.
8.
HEARING
Any person whose license, permit or privilege to operate is suspended by the Secretary of State
pursuant to these rules may request a hearing and the suspension may remain in effect pending
such hearing.
29
250
2.
3.
4.
2.
2.
3.
Limit the issues to be heard or vary any procedure prescribed by Bureau rule
if the parties and the Bureau agree to such limitation or variation, and if no
prejudice to any party will result.
SECTION 6. Default.
1.
If a party who requested a hearing fails to appear at the hearing, the hearing
request shall be dismissed. If within ten days following the dismissal a party
submits information demonstrating good cause for the failure to appear, the
request for hearing may be reinstated, at the discretion of the Hearing
Examiner.
2.
Good cause. The following circumstances constitute good cause for the
purpose of Subsection 1:
A.
B.
C.
D.
E.
F.
B.
C.
(1)
(2)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
2.
3.
B.
C.
B.
C.
(1)
(2)
Discovery. Prior to the scheduled hearing, a party has the right to obtain
copies of any documents, records or exhibits intended to be introduced into
evidence at the hearing. Problems or disagreements shall be made known to
the Hearing Examiner at least five days prior to the scheduled hearing date.
2.
Subpoenas.
A.
B.
SECTION 10.
(a)
(b)
(c)
(d)
(e)
(f)
Conduct of hearings.
1.
2.
The Hearing Examiner shall have full and exclusive control of the conduct of
the hearing. In cases of disorder or refusal to comply with the rules of the
hearing or orders of the Hearing Examiner, the Hearing Examiner shall use
reasonable means to control the hearing. Parties, representatives, and
witnesses shall not engage in bitter exchanges, vulgarities, or abuse or make
offensive or insulting comments. When such conduct occurs, the Hearing
Examiner shall admonish the offender, reminding the person that such
behavior does not contribute to a fair hearing and impedes the orderly
disposition of a case. If the offense is repeated and further admonition
appears fruitless, the Hearing Examiner shall exclude a disorderly person
from the hearing. If a disorderly persons offensive conduct is so flagrant that
it prevents the completion of the case, the disorderly person shall be removed
from the hearing room and the hearing will proceed without the attendance
of the disorderly person.
3.
4.
5.
SECTION 11.
(2)
(3)
(4)
(5)
(6)
(7)
The issues at the hearing shall be limited to those outlined in the applicable statute
and shall be stated for the record by the Hearing Examiner at the beginning of each
hearing.
SECTION 12.
Hearings recorded.
SECTION 13.
Ex parte communication.
1.
Persons may present evidence bearing directly on the issues involved in the
hearing, call and examine witnesses, and cross-examine adverse witnesses.
In lieu of live testimony, video and telephone testimony may be offered.
2.
3.
4.
5.
The Hearing Examiner may take official notice of records maintained by the
Secretary of State, e.g., accident reports, affidavits and any information of
which a court could take judicial notice. Parties shall be notified of the
material so noticed, and they shall be afforded an opportunity to contest the
substance or materiality of the facts noticed. Facts officially noticed shall be
included and indicated as such in the record.
SECTION 15.
1.
Record.
B.
C.
D.
E.
F.
G.
Staff memoranda;
H.
The decision.
2.
3.
SECTION 16.
In any case in which law or regulations or special instructions from the Secretary of
State dictate that an individual other than the Hearing Examiner will make a final
hearing decision, the Hearing Examiner will prepare a recommended decision rather
than a final hearing decision. A recommended decision will be made on the same
basis and in the same form as a final decision.
Copies of recommended decisions will be provided to all parties who will have an
opportunity to submit responses and exceptions to the final decision maker. These
written responses and exceptions will be due within twenty days of receipt of the
recommended decision and copies provided to all parties, the Hearing Examiner, the
Secretary of State and/or the Secretary of States designee.
The responses and exceptions shall contain:
1.
a clear statement of the partys position and the reason for it;
2.
a listing of any errors or omissions made by the Hearing Examiner during the
hearing;
3.
Additional factual information which could have been presented and considered
during the hearing need not be considered by the final decision maker.
SECTION 17.
Decisions.
1.
2.
3.
The decision of the Hearing Examiner constitutes the final agency action by
the Secretary of State.
SECTION 18.
Written notice of the persons right to appeal the decision to the Superior Court, of
the action required to file or perfect the appeal, and the time within which this
action must be taken in order to exercise the rights of appeal must be given with the
decision.
Requests for stay of administrative suspension pending appeal to the Superior Court
must be made in writing first to the Director of the Division of Legal Affairs,
Adjudications and Hearings, Bureau of Motor Vehicles. A stay may be issued only
upon showing of irreparable injury to the petitioner, a strong likelihood of success on
the merits and no substantial harm to adverse parties or the general public.
The Director or a designee shall issue a prompt response to any request, basing the
decision on whether the hearing was conducted in accordance with all applicable
rules, regulations and statutes, whether the decision is supported by the evidence,
whether an appeal is likely to succeed, and whether the petitioners prior driving
record indicates the petitioner does not present a significant threat to the safety of
the motoring public.
SECTION 19.
Either at the request of a party or sua sponte, a Hearing Examiner may correct or
amend a decision to correct a ministerial or typographical error, to clarify or correct
the record, or to rule upon any issue that was heard but not ruled upon. If the
correction or amendment is substantive, the Hearing Examiner shall reiterate the
mechanism for appeal of the decision.
SECTION 20.
Reopening of hearings.
Either at the request of a party or sua sponte, the Hearing Examiner may upon
notice to all parties reopen the record of any hearing under the following
circumstances:
1.
a party to the original hearing has discovered new evidence which could
reasonably have affected the outcome of the proceeding but could not have
3.
Advisory rulings.
An interested person may request the Department of the Secretary of State, Bureau
of Motor Vehicles to make an advisory ruling with respect to the applicability of any
statute or rule administered by the Bureau to the person or the persons property or
actual state of facts. All advisory rulings must be in writing and are not deemed
binding upon the Bureau. An interested person shall direct the written request for
an advisory ruling to: Bureau of Motor Vehicles, 29 State House Station, Augusta,
Maine 04333.
29
250
SUMMARY: These rules describe the standards to be used by the Secretary of State in
determining physical, emotional and mental competence of persons to operate motor vehicles.
The rules establish a reporting system which requires persons to submit medical information to
the Secretary of State. Persons found incompetent to operate a motor vehicle in accordance with
procedures outlined in these rules may have their driving privileges suspended, revoked or
restricted.
1.
2.
Standards
A.
Secretary of State. The Secretary of State shall determine the physical, emotional,
and mental competence of a person to operate a motor vehicle with the advice of
the Medical Advisory Board and on the basis of the Functional Ability Profiles.
B.
Reporting System
A.
B.
2.
3.
C.
D.
2.
2.
ii.
E.
iii.
iv.
2.
3.
Active impairment.
a.
4.
b.
Mild. This section deals with conditions which may impair driving
but which are controlled so that a person can still operate a motor
vehicle safely. Reviews are more frequent than in (a).
c.
d.
In all cases, periodic reviews may place the driver being evaluated in a higher or lower
section as the condition improves or deteriorates.
PSYCHIATRIC DISORDERS
There is no certain way of predicting which persons with psychiatric illness will have
accidents, but many high risk drivers are such because of psychiatric conditions.
Many individuals with psychiatric illness are maintained on medications on an ambulatory
status. These drugs have varying degrees of sedative side effects and can potentiate other
central nervous system depressants. Persons receiving such medications should be screened in
terms of severity of side effects incident to medication and the adequacy of the remission.
If a physician believes there may be a problem but is not sufficiently familiar with the
patient's psychiatric status to make a valid judgment, he should refrain from doing so until he
gains access to current psychiatric information or records or makes an appropriate referral for
evaluation.
FUNCTIONAL ABILITY PROFILE:
Psychiatric Disorders
Profile Levels
Circumstances*
Condition Example
1.
No diagnosed
condition
No known disorder.
2.
Condition fully
recovered &
compensated
Interval for
Review
N/A
3.
4.
Active impairment:
a. Minimal
a. 4 years
b. Mild
b. 1 year
c. Moderate
c. Active psychiatric/behavioral
disorder with indications of risk to
self or others; or with treatment or
medications which interfere with
alertness or coordination, but with
potential for improvement
c. No driving
d. Severe
d. No driving
Condition under
investigation
Newly discovered
psychiatric/behavioral disorder
As needed
NEWS ARTICLES
http://www.fbi.gov/news/pressrel/press-releases/fbi-releases-2013-statistics-on-lawenforcement-officers-killed-and-assaulted
FBI Releases 2013 Statistics on Law Enforcement Officers Killed and
Assaulted
Washington, D.C.
November 24, 2014
FBI National Press Office(202) 324-3691
According to statistics collected by the FBI, 76 law enforcement officers were killed
in line-of-duty incidents in 2013. Of these, 27 law enforcement officers died as a
result of felonious acts, and 49 officers died in accidents. In addition, 49,851 officers
were victims of line-of-duty assaults. Comprehensive data tables about these
incidents and brief narratives describing the fatal attacks and selected assaults
resulting in injury are included in the 2013 edition of Law Enforcement Officers
Killed and Assaulted, released today.
Felonious Deaths
The 27 felonious deaths occurred in 16 states. The number of officers killed as a
result of criminal acts in 2013 decreased by 22 when compared with the 49 officers
who were feloniously killed in 2012. The five- and 10-year comparisons show a
decrease of 21 felonious deaths compared with the 2009 figure (48 officers) and a
decrease of 30 deaths compared with 2004 data (57 officers).
Officer Profiles: The average age of the officers who were feloniously killed was 39
years. The victim officers had served in law enforcement for an average of 13 years
at the time of the fatal incidents. Twenty-five of the officers were male, and two
were female. Twenty-five of the officers were white, and two were black.
Circumstances: Of the 27 officers feloniously killed, six were killed in arrest
situations, five were investigating suspicious persons or circumstances, five were
ambushed, four were involved in tactical situations, four were answering
disturbance calls, and two were conducting traffic pursuits/stops. One was
conducting an investigative activity, such as surveillance, a search, or an interview.
Weapons: Offenders used firearms to kill 26 of the 27 victim officers. Of these 26
officers, 18 were slain with handguns, five with rifles, and three with shotguns. One
officer was killed with a vehicle used as a weapon.
Regions: Fifteen of the felonious deaths occurred in the South, six in the West, four
in the Midwest, and two in the Northeast.
Suspects: Law enforcement agencies identified 28 alleged assailants in connection
with the felonious line-of-duty deaths. Twenty of the assailants had prior criminal
arrests, and six of the offenders were under judicial supervision at the time of the
felonious incidents.
Accidental Deaths
Forty-nine law enforcement officers were killed accidentally while performing their
duties in 2013. The majority (23 officers) were killed in automobile accidents. The
number of accidental line-of-duty deaths increased by one from the 2012 total (48
officers).
Officer Profiles: The average age of the officers who were accidentally killed was 41
years; the average number of years the victim officers had served in law
enforcement was 13. All 49 of the officers were male. Forty-one of the officers were
white, six were black, and race was not reported for two officers.
Circumstances: Of the 49 officers accidentally killed, 23 died as a result of
automobile accidents, nine were struck by vehicles, four officers died in motorcycle
accidents, four officers were killed in falls, two were accidentally shot, two drowned,
one died in an aircraft accident, and four officers died in other types of duty-related
accidents. Seatbelt usage was reported for 22 of the 23 officers killed in automobile
accidents. Of these, 14 officers were not wearing seatbelts, three of whom were
seated in parked patrol vehicles. Eight officers were wearing their seatbelts at the
times of the accidents.
Regions: Thirty-one of the accidental deaths occurred in the South, nine in the
West, five in the Northeast, and 4 in the Midwest.
Assaults
In 2013, of the 49,851 officers assaulted while performing their duties, 29.2 percent
were injured. The largest percentage of victim officers (31.2 percent) were assaulted
while responding to disturbance calls. Assailants used personal weapons (hands,
fists, feet, etc.) in 79.8 percent of the incidents, firearms in 4.5 percent of incidents,
and knives or other cutting instruments in 1.8 percent of the incidents. Other types
of dangerous weapons were used in 13.9 percent of assaults. Expanded assault
details have been included in the 2013 publication. Data for assaults during which
officers were injured with firearms or knives/other cutting instruments are located
in new tables, figures, and selected narratives.
When Trutanich was unseated as city attorney by Mike Feuer this year, Feuer
changed course, instructing his assistants to try to settle with the officers, according
to city records and interviews.
The settlement is the latest in a long string of seven-figure payments the city has
made to resolve police officers' reports of retaliation, discrimination and other
workplace misconduct. In the last several years more than a dozen other officers
have won million-dollar-plus jury verdicts or settlements from the city.
An earlier Times review of city records from 2005 to 2010 found police officers filed
more than 250 lawsuits against the department over workplace issues. The city
paid more than $18 million in about 45 of those cases and had appealed other
verdicts worth several million dollars more, the records showed.
As the losses continued to pile up, the department came under increasing scrutiny
for its apparent inability to identify workplace problems and resolve them before
they blew up into legal action. With the Police Commission, which oversees the
department, demanding improvements, LAPD officials have made changes and
have said that the number of lawsuits brought by officers has dropped. Commission
members, however, have said it is too early to conclude that the problem is under
control.
Copyright 2013 Los Angeles Times
http://www3.illinois.gov/PressReleases/ShowPressRelease.cfm?SubjectID=3&RecNu
m=12344
http://www.lris.com/2014/10/10/police-union-calls-elimination-traffic-ticketquota/
Police Union Calls For Elimination Of Traffic-Ticket Quota
October 10th, 2014
TUCSON, AZ The Tucson Police Officers Association on Thursday called for the
department to eliminate the ticket quota for patrol officers.
Were just philosophically opposed to any kind of quota, said Jason Winsky,
government affairs director for the union. Its a morale issue for us because the
officer no long has discretion. Its mandatory.
Tucson Police Department patrol officers are expected to make at least one traffic
contact a day on average that results in a citation or a warning, according to Chief
Roberto Villaseor.
One ticket a day is not something that would be considered a quota in my mind,
he said.
The purpose of the requirement was to encourage proactive traffic enforcement, the
police chief said. Traffic contacts deter bad driving habits, and Villaseor said it
required his officers to do their jobs, which is ensuring the smooth flow of traffic.
Our traffic enforcement had become almost non-existent (before the requirement),
he said. There was less than one traffic contact per week and that was
unacceptable.
Villaseor first implemented what he calls a performance expectation in January
2013. The original requirement was for patrol officers to issue at least one citation
or warning a day on average, which is the same as the current version. He then
amended it July this year to require at least one hazardous citation before changing
it again on Sept. 26.
Having a strong traffic program saves more lives and property damage than
anything else the department can do, Villaseor said. There are more traffic
accidents than any property or violent crime.
A chief of police should not be challenged for requiring his officers to enforce traffic
laws, he said.
The TPOA is working with House Rep. Bruce Wheeler on a legislation to ban ticket
quotas in Arizona for the next legislative section. Wheeler, who is looking for reelection in Legislative District 10 this season, said that the requirement is not a
good idea.
We can double speak all we want, but its still a quota, he said. Its still an
arbitrary, disruptive requirement.
Having a quota does not help the communitys impression of the police and disrupts
police officers more vital investigation work, Wheeler said. And if its designed to
generate revenue, thats certainly not a way to do it, he added.
One of his opponents in the election, Republican Todd Clodfelter, weighed in on the
issue, saying he agrees with Wheeler that ticket quotas are unnecessary. He said
GinA v. State of Maine, Appendix
347a
too much enforcement could make people apprehensive about police officers, though
he did not agree that there should be a state law banning ticket quotas.
Im not sure we really need legislation to make that happen, Clodfelter said. Not
from a state level.
A fellow Democrat in the race, Stefanie Mach, said she supports Wheelers effort,
saying that the police officers and the public both do not like quotas for traffic
tickets.
Bill Wildish, another candidate in Legislative District 10, could not be reached for
comment.
From The Arizona Daily Star
http://www.washingtonpost.com/blogs/govbeat/wp/2015/01/20/police-quotas-fortraffic-tickets-could-be-outlawed-by-state-lawmakers/
Police quotas for traffic tickets could be outlawed by state lawmakers
January 20, 2015
Following the passage last year of an Illinois law that bars police departments from
setting quotas for traffic citations, other states are looking into similar measures.
Bills have been filed this year in Missouri and Wyoming. Missouris proposal would
prohibit citation numbers from being used in officer job performance evaluation,
while Wyomings would do away with quotas altogether. A New Jersey bill filed last
year related to citation numbers and officer job performance was also filed and is
still active, although no action has been taken since August, according to the state
legislature Web site.
Assemblyman Declan OScanlon (R), who introduced the bill, called it good policy
all around that will really allow police men and women to focus on safety and take
the emphasis off writing tickets.
Its unfortunate that I have to introduce this bill at all, but its a dirty little secret
that some police forces are blatantly considering ticketing rates in the officer
assessment process, he said in a statement. Not only is that a terrible policy, it
diminishes the value of all that our officers do by turning them into revenue
generating machines.
Former Illinois governor Pat Quinn (D) said when he signed that states bill in
June the legislation would increase public trust and prevent motorists from facing
unnecessary anxiety when they encounter a police vehicle.
A similar bill was also passed by lawmakers in Oklahoma last year, although Gov.
Mary Fallin (R) did not sign it, according to a review of the 2014 session.
SPEED TRAPPED: A nascent legislative proposal would ban traffic citation quotas,
but local law enforcement agencies could still raise up to 50 percent of revenue
through tickets.
TALLAHASSEE, Fla. A Florida lawmaker is ending police quotas for traffic
tickets, but not before a rural town in his district was the subject of national
ridicule.
CNN [2]and CBS news [3], to name two media outlets, reported the city of Waldos
seven police officers wrote nearly 12,000 speeding tickets and collected more than
$400,000 in fines in a year. The fines amounted to 50 percent of the citys entire
revenue and 60 percent of the small North Florida police departments budget.
As a result, Sen. Rob Bradley [4], R-Fleming Island, is taking action.
Its important for people to understand that if their local law enforcement agency is
being supported by nothing but traffic revenue or, if its a large part, they need to be
aware of that and decide if thats an important way to fund a law enforcement
agency, Bradley said Thursday during a Fiscal Policy Committee [5]meeting at the
Capitol.
But north Florida speed traps, one of the worst kept secrets in the state, would
persist, and Bradleys fix would allow local law enforcement agencies to continue
raising significant sums through ticketing.
Commonly thought to be illegal, a gray area in state law allows county sheriffs and
municipal police departments to use ticketing quotas. Agents of the state, such as
the Florida Highway Patrol, cannot.
Bradleys bill would close the loophole.
His proposal, Senate Bill 264 [7], triggers a state audit if a local governments total
revenue from traffic tickets exceeds 50 percent of its law enforcement budget.
Arguably, the measure gives the appearance of solving an embarrassing problem
while simply capping ticketing schemes at a generous threshold.
If a town wants to hand out tickets and use it as a revenue source, this doesnt
prevent them from doing it, it just says that they have to tell people about it,
said Sen. Jeff Clemens [8], D-Lake Worth.
The bill has so far received unanimous bipartisan support [9], with the Police
Benevolent Association and the Florida Police Chiefs Association giving it a
thumbs, as well.
Motorists should still beware.
Speed traps really have nothing to do with public safety and everything to do with
generating revenue from writing as many speeding tickets as possible, John
Bowman, spokesman for the National Motorist Association, [10]told Watchdog.
In 2012, NMA listed Waldo, Fla., as the third-worst speed trap in the country,
which belies the notion the citys dubious ticketing practices were previously
unknown.
Hampton, another Bradford County [11] town, was dinged months earlier for
ticketing problems. Upon review, the Florida Auditor General [12] found 31
accountability issues, some dating back years. Time magazine [13] picked up on
that story.
H. Lee Moffitt, a lobbyist for AAA auto, said Thursday the Legislature has known
about the practice for decades but hasnt had the appetite to pass reform until
now.
Cities bitterly complained that the only reason was for public safety, said Moffitt,
a former House speaker. Almost 20 years later, its finally time to put an end to
citation quotas.
Moffitt, a former House Speaker, said AAA has even paid for billboards in the area
to warn drivers of the abusive ticketing practices.
In some instances, quotas have been used as a way to measure police officers
performance, according to a Senate bill analysis [14]. But thats on its way out.
Several emails obtained by Watchdog from the Senate Transportation Committee
say abolishing the quotas would prohibit officers from being evaluated, promoted,
compensated or disciplined for failing to write a specific number of tickets.
Over-ticketing is effective to raise revenues, said Bowman, unfortunately, it
takes advantage of motorists who may be driving in a responsible manner.
The handing out of more tickets does not result in less accidents, Clemens said.
http://www.gainesville.com/article/20150115/ARTICLES/150119807
Bill would toughen state ban on traffic ticket quotas
Legislation that would give teeth to Floridas prohibition on traffic ticket quotas and
require local police departments to be upfront about budget funding is up for
discussion during this years session.
State Sen. Rob Bradley, R-Fleming Island, said SB 264 would clarify ambiguous
language in the states current ticket quota ban to specifically include all law
enforcement agencies. Also, the bill would create consequences for agencies found in
violation of the ban, but lawmakers would later define those penalties.
Bradley filed the bill on Jan. 7, and state Rep. Ray Rodrigues, R-Fort Myers, will
file a House companion bill next week.
This is the first quarter of a four-quarter game, Bradley said. Im already
receiving outstanding feedback from my colleagues in the Senate.
Bradley said he filed the bill in response to trouble last year in Hampton and Waldo
that revealed both cities were using ticket fine revenue to support budgets.
The Florida Joint Legislative Auditing Committee learned that Hampton had
received hundreds of thousands of dollars from tickets written by officers patrolling
a short distance on U.S. 301.
Also, the committee learned much of the revenue was misspent. In response, the
city saved its charter by agreeing to decommission its police department.
The City of Waldo was dragged into controversy by its own police officers in August
after they alerted the City Council that they were under an imposed ticket quota.
The allegation led to an investigation by the Florida Department of Law
Enforcement, which led State Attorney Bill Cervone to determine Waldo had
adopted a ticket quota, but there were no consequences and it was not clear if the
states ban only applied to state law enforcement.
An investigation by The Gainesville Sun revealed that 62 percent of the Waldo
Police Department budget came from ticket fine revenue, and the majority of the
thousands of citations filed by the agencys seven officers were written on a stretch
of U.S. 301 where the speed limit was 45 mph for a flea market only open on
weekends.
Previous budgets and a proposed plan for the current fiscal year indicated Waldo
mostly relied on traffic ticket fines to support its law enforcement. That reliance on
ticket revenue prompted Sen. Bradley to urge the Waldo City Council to find
another way to support its police department or close the agency.
In response, the department was shuttered on Oct. 1, leaving law enforcement
patrol in Waldo up to the Alachua County Sheriffs Office and the Florida Highway
Patrol.
Bradleys proposed legislation also would require counties and cities that use more
than 50 percent of traffic fine revenue to support law enforcement operations to
submit a report to the Joint Legislative Auditing Committee detailing how much
money it collects and total expenses.
The bill already received support from the Florida Police Benevolent Association,
which represents thousands of law enforcement professionals across the state.
PBA Director Matt Puckett said the contentious relationship that the police
department in Ferguson, Missouri, shared with its residents was initially fractured
by performance quotas.
The police department in Ferguson was balancing its budget on the backs of its
citizens by writing tickets, Puckett said. Thats an extreme example of what could
happen when a government does that very thing.
Puckett also said traffic ticket quotas eliminated proactive police work.
We want police officers to keep the peace, Puckett said. Officers should not be
wondering if they met their quota.
An official with the Florida League of Cities said it was too early to tell if the league
would support Bradleys proposed legislation, but an established companion
measure in the House gives it a reasonable shot at being assigned to committees in
both legislative chambers.
Rodrigues said he believes that law enforcement agencies that support budgets with
ticket fines are of no help to the communities they serve.
This will definitely put the sunshine on the bad actors, Rodrigues said.
State Attorney Cervone also said he supports the bill, and Bradley said he hopes it
would also bring the Lawtey Police Department in line. Like Hampton and Waldo,
Lawtey uses traffic fines written on U.S. 301 to support much of its police
department budget.
What its going to do is, like Waldo did, communities will have that discussion
about how they fund their police department, Bradley said. This allows them to
make that decision.
http://wtvr.com/2014/07/14/chesterfield-quota-investigation/
Former police officer exposes Chesterfields ticket quota goals
POSTED 11:52 PM, JULY 14, 2014, BY MELISSA HIPOLIT, UPDATED AT 09:04AM, JULY 15, 2014
At least one Chesterfield driver we spoke with said he is perfectly okay with that
standard.
If somebody is in the wrong, then theyre in the wrong, theyre just doing their job,
I understand, Lequan Mcelwain.
Kelly said the departments officers are fairly lenient.
He pointed to numbers that showed officers issued tickets to just 40 percent of the
cars they stopped last year.
I think those are legitimate stops by our officers that observed a legitimate
violation of the law, Kelly said.
Chesterfield Police Department Master Officer Matt McCory said he pulled over an
average of four to five drivers every day, but only wrote one or two tickets.
I generally can help them out a little bit, issue a warning instead of a summons,
McCory said.
The state of Illinois recently banned police ticket quotas. After our investigation,
Delegates Riley and McQuinn both said Virginia should consider doing the same
thing.
I would hope this kind of practice would cease immediately, Del. McQuinn said. I
think as we go back into the General Assembly it needs to be addressed.
We asked both the Richmond and Henrico Police departments if they had similar
systems in place to evaluate officer performance.
The Richmond Police Department said it does not have any traffic stop or arrest
requirements.
A Henrico Police spokeswoman said there are no stop or arrest quotas for officers,
but they do encourage traffic stops in crime hot spots and high accident locations.
http://www.michigancapitolconfidential.com/21079
Sheriff Lieutenant Caught on Video Saying Officers Disciplined for Not
Writing Enough Tickets
Michigan has law banning ticket quotas
By ANNE SCHIEBER | March 7, 2015
It is against the law in Michigan for police agencies to impose a traffic ticket quota
on officers. So when a Newaygo County sheriffs deputy was caught on video telling
county commissioners he would reprimand subordinates for not writing enough
tickets to comply with a federal grant, motorists bristled.
The damage this sort of abuse does to the credibility of police officers being there to
'protect and serve' is enormous, said Jim Walker, executive director of the National
Motorists Association Foundation. We have had 40 years of it, and it is time to
stop. And the feds are a major offender in promoting abusive enforcement for
profits, by paying for overtime enforcement grants that are often abused for
revenue.
Newaygo County Sheriff Patrick Hedlund, who has been on the job for seven weeks,
said his officers were not on a quota system.
I cant say what happened in the 15 years before I arrived, but the deputy made a
silly statement, something, from what I can tell, he made up, Hedlund said.
The video, which can be found in a news report of The Free Thought Project, shows
road patrol Lt. Chad Palmiter telling commissioners in January that while he
knows ticket quotas are against the law, he is a numbers guy when it comes to
issuing tickets. Palmiter was seeking approval to accept a grant from the Michigan
Office of Highway Safety Planning.
The guys that can't perform those numbers have been removed from all overtime
for that particular grant, for the remainder of the year, he said, referring to federal
grants administered through the state.
On March 2, one day after the video was uploaded to the Internet, Hedlund issued a
press release stating he immediately took action after became aware of the
statements on Feb. 9. He said Palmiter has been disciplined according to union
rules and banned from supervising personnel under the grant program. Hedlund
added that if he becomes aware of a quota system, he would call in an outside
agency to conduct a criminal investigation.
Hedlund said he did inquire about practices under his predecessor, Sheriff Mike
Mercer, who retired in 2014, and was assured that a quota system was not in place.
He added that the department wrote 1,895 tickets in 2014, but not all tickets were
moving violations.
Michigan banned ticket quotas years ago, but tickets have become an expensive
annoyance for motorists who may feel they were driving safely. Motorists face at
least a $100 fine. Points on the driver's license, which can accompany a ticket,
may trigger auto insurance surcharges. Until October of 2017, drivers may also be
subject to costly state driver responsibility fees.
While the state does not keep track of the number of speeding tickets issued, it does
have a record of the assessments levied on all traffic tickets (not just speed
violations) that are earmarked to a state Justice System Fund. According to the
House Fiscal Agency, in 2011 the state collected $40.8 million dollars in
assessments, which would work out to over $130 million in traffic ticket revenue.
One problem has been roads with improper speed limits, which motorists may not
recognize, and thus plead guilty to tickets. A 2006 law requires government
agencies to set limits based on bona fide speed studies or a formula, described in the
law, based on access points.
Hedlund said he does not support speed traps, and believes Palmiter was referring
to grant requirements set forth by the federal government. Agencies that receive the
grant in question must make 1.29 stops per hour when patrolling for impaired
driving.
Retired Trooper Thad Pederson, who has been an advocate for mandating
scientifically set speed limits, remembers the federal grants well.
While I was running Traffic Services, I was able to keep the grant performance
criteria moderated to some extent so that it read 'contacts per hour' rather than
stops. Patrol time does not include the time when an officer is tied up on an arrest
or call, so this makes a huge difference and takes the heat off the officer from
making stops simply for the sake of making stops, he said.
Hedlund says outside of the remarks to the commissioners, Palmiter has had an
impeccable record and has never been disciplined. Citing privacy reasons, he did
not divulge what Palmiter's discipline involved.