An Act To Implement Certain Recommendations of the Criminal Law Advisory Commission Relative to the Maine Bail Code, Statutory Post-conviction Review, the Maine Criminal Code and a Related Statute
Maine Legislature, Session 126, LD 1438
Committee: Criminal Justice and Public Safety
Amends: 15 MRSA §1091-A, 15 MRSA §2124, 15 MRSA §2125, 15 MRSA §2126, 15 MRSA §2138, 17-A MRSA §256, 17-A MRSA §261, 17-A MRSA §757, 17-A MRSA §1304, 22 MRSA §2383-B

Legislative Document 
No. 1438 
H.P. 1032 
House of Representatives, April 24, 2013 
An Act To Implement Certain Recommendations of the Criminal 
Law Advisory Commission Relative to the Maine Bail Code, 
Statutory Post-conviction Review, the Maine Criminal Code and a 
Related Statute 
Reported by Representative DION of Portland for the Criminal Law Advisory Commission 
pursuant to the Maine Revised Statutes, Title 17-A, section 1354, subsection 2. 
Reference to the Committee on Criminal Justice and Public Safety suggested and ordered 
printed pursuant to Joint Rule 218. 
MILLICENT M. MacFARLAND 
Clerk 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1.  15 MRSA §1091-A, as enacted by PL 1995, c. 456, §1, is amended to 
read: 
§1091-A.  Failure to report 
1.  Failure to report after stay of execution.  A defendant who has been sentenced 
but granted a stay of execution to report at until a specific time specified date or event 
and who, in fact, fails to report as ordered is guilty of: 
A.    A Class E crime if the underlying crime was punishable by a maximum period 
of imprisonment of less than one year; or 
B.    A Class C crime if the underlying crime was punishable by a maximum period 
of imprisonment of one year or more. 
It is an affirmative defense that the failure to appear resulted from just cause. 
2.  Affirmative defense.  It is an affirmative defense to prosecution under subsection 
that the failure to report resulted from just cause. 
3.  Strict liability.  Violation of this section is a strict liability crime as defined in 
Title 17-A, section 34, subsection 4-A. 
Sec. 2.  15 MRSA §2124, sub-§1, ¶F, as enacted by PL 2011, c. 601, §7, is 
amended to read: 
F.  Restitution imposed by the challenged criminal judgment that has not been paid 
and in a case when a person has not inexcusably violated Title 17-A, section 1328-A 
or inexcusably defaulted in payment of any portion.  Any challenge as to the amount 
of restitution ordered is further limited by Title 17-A, section 1330-A; or 
Sec. 3.  15 MRSA §2124, sub-§1, ¶F-1 is enacted to read: 
F-1.  Community service work imposed by the challenged criminal judgment that has 
not been fully performed and in a case when a person has not inexcusably failed to 
complete the work within the time specified by the court; or 
Sec. 4.  15 MRSA §2125, as amended by PL 2011, c. 601, §8, is further amended 
to read: 
§2125.  Ground for relief 
A person who satisfies the prerequisites of section 2124 may show that the 
challenged criminal judgment or sentence is unlawful or unlawfully imposed, or that the 
impediment resulting from the challenged post-sentencing proceeding is unlawful, as a 
result of any error or ground for relief, whether or not of record, unless the error is 
harmless or unless relief is unavailable for a reason provided in section 2126 or, section 
2128 unless section 2128-A applies, or section 2128-B. 
Sec. 5.  15 MRSA §2126, as amended by PL 1985, c. 556, §2, is further amended 
to read: 
§2126.  Exhaustion 
A person under restraint or impediment specified in section 2124 must also 
demonstrate that he the person has previously exhausted remedies incidental to 
proceedings in the trial court, on appeal or administrative remedies. A person who has 
taken an appeal from a judgment of conviction or, a juvenile adjudication or a judgment 
of not criminally responsible by reason of insanity is not precluded from utilizing the 
remedy of this chapter while the appeal is pending, provided that the.  The post-
conviction review proceeding is automatically stayed pending resolution of the appeal 
unless the Appellate Court on motion and for good cause otherwise directs. 
Sec. 6.  15 MRSA §2138, sub-§12, as amended by PL 2011, c. 601, §13, is 
further amended to read: 
12.  Exhaustion.  A person who has taken a direct appeal from the judgment of 
conviction is not precluded from utilizing the remedy of this chapter while the appeal is 
pending, as long as the.  The resolution of the motion is automatically stayed pending 
final disposition of the direct appeal unless the Supreme Judicial Court, sitting as the Law 
Court, on motion otherwise directs. 
A person who has initiated a collateral attack upon the judgment of conviction under 
chapter 305-A is not precluded from utilizing the remedy of this chapter while that post-
conviction review proceeding is pending, as long as.  The resolution of the motion is 
automatically stayed pending final disposition of the post-conviction review proceeding 
unless the assigned justice or judge in the post-conviction review proceeding otherwise 
directs. 
Sec. 7.  17-A MRSA §256, sub-§1, ¶B, as amended by PL 2005, c. 655, §1, is 
further amended to read: 
B.    For the purpose of arousing or gratifying sexual desire or for the purpose of 
causing affront or alarm, the actor, having in fact attained 18 years of age, exposes 
the actor's genitals to another person or causes the other person to expose that 
person's genitals to the actor and the other person, not the actor's spouse, has not in 
fact attained 12 years of age.  Violation of this paragraph is a Class C crime; 
Sec. 8.  17-A MRSA §261, sub-§3, as enacted by PL 2007, c. 393, §1, is amended 
to read: 
3.   It Except when the defendant would be the person giving the consent, it is an 
affirmative defense to prosecution under this section that the parent, foster parent, 
guardian or other similar person responsible for the person who had not in fact attained 
years of age, knowing the conviction status described in subsections 1 and 2, gave 
consent that the defendant initiate, have or continue direct or indirect contact.  It is also an 
affirmative defense to prosecution under this section that any contact is incidental to and 
directly related to the defendant's employment. 
Sec. 9.  17-A MRSA §757, sub-§1, ¶B, as enacted by PL 1975, c. 499, §1, is 
amended to read: 
B.    Being a person in official custody, he the person intentionally makes, obtains or 
possesses contraband. 
Sec. 10.  17-A MRSA §1304, sub-§3, ¶B, as enacted by PL 1999, c. 367, §5, is 
amended to read: 
B.  If it appears that the default is excusable, the court may give the offender 
additional time for payment or, may reduce the amount of each installment or may 
permit the offender to perform community service work at a rate authorized by 
paragraph A, subparagraph (2), supervised by the sheriff of the county in which the 
court that assessed the fine is located or by a community confinement monitoring 
agency with which that sheriff has contracted under Title 30-A, section 1659-A. 
Sec. 11.  22 MRSA §2383-B, sub-§2, ¶¶E and F, as amended by PL 1997, c. 
340, §5, are further amended to read: 
E.  Physicians, dentists, podiatrists, pharmacists or other persons authorized by law or 
rule to administer, dispense, prescribe or sell scheduled or prescription drugs, 
controlled substances or hypodermic apparatuses while acting within the course of 
their professional practice; and 
F.  With regard to the possession or furnishing of hypodermic apparatuses, persons 
authorized by the Bureau of Health pursuant to a hypodermic apparatus exchange 
program, certified under chapter 252-A while acting within the scope of their 
employment under such programs.; and 
Sec. 12.  22 MRSA §2383-B, sub-§2, ¶G is enacted to read: 
G.  Persons conducting research at a school of pharmacology that is accredited or is a 
candidate for accreditation in good standing. 
SUMMARY 
This bill implements the Criminal Law Advisory Commission recommendations as 
follows. 
1. Current law provides that a person who has been sentenced but granted a stay of 
execution to report to the court at a specific time and who fails to report commits a Class 
E crime or a Class C crime depending on the length of the original sentence imposed. 
Existing statute does not specify a culpable mental state for failure to report.  This bill 
clarifies that a failure to report is a strict liability crime, which means that it does not 
include a culpable mental state element, making it equivalent in this respect to a failure to 
appear and a violation of a condition of release.  
2.  In the context of a failure to report, it amends language to ensure that 
circumstances in which a sentence is automatically stayed or automatically terminated are 
included in addition to circumstances in which the stay order provides a specific date. 
3. It makes a technical correction to the affirmative defense language for failure to 
report. 
4.  Current law provides for an action for post-conviction review of a criminal 
judgment or of a post-sentencing proceeding following the criminal judgment when the 
challenged criminal judgment or post-sentencing proceeding is causing a present restraint 
or other specified impediment.  This bill provides that these restraints and impediments 
include community service work imposed by the challenged criminal judgment that has 
not been fully performed when the person has not inexcusably failed to complete the 
work within the time specified by the court. 
5. It rectifies an oversight that occurred during the Second Regular Session of the 
125th Legislature when the law granting grounds for relief to show that a challenged 
criminal judgment or sentence is unlawful or unlawfully imposed was amended. 
6.  It provides that a person who has taken an appeal from a judgment of not 
criminally responsible by reason of insanity may use the remedy of post-conviction 
review while the appeal is pending. 
7.  It makes a number of technical corrections to clarify provisions regarding the 
exhaustion of remedies with respect to appeals. 
8. It amends the Class C version of the crime of visual sexual aggression against a 
child by adding that a person is guilty of the crime if the person engages in the prohibited 
activity for the purpose of causing affront or alarm.  This language was included in the 
Class D version of the crime but omitted from the Class C version of the crime when both 
were enacted by Public Law 2003, chapter 711, Part B, section 4. 
9.  It amends the law that provides an affirmative defense to prosecution for 
prohibited contact with a minor to make clear that the defendant may not be the person 
whose consent with respect to contact with the minor provides the basis for the 
affirmative defense. 
10.  It provides that when an offender defaults on the payment of a fine and the court 
determines it to be excusable, in addition to the current statutory options of giving the 
offender additional time for payment or reducing the amount of each installment, the 
court may permit the offender to perform community service work if the community 
service work is supervised by a local sheriff or by a community confinement monitoring 
agency with which that sheriff has contracted. 
11.  It adds a person conducting research at a school of pharmacology to the list of 
persons who are authorized to possess, furnish and have control of scheduled or 
prescription drugs, controlled substances or hypodermic apparatuses.