Are they going to legalize Marijuana in Pennsylvania? Am I dreaming?

House Bill 1393 of the General Assembly of Pennsylvania would legalize pot. Currently, Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington permit the use of marijuana for medical purposes. Arizona permits doctors to prescribe marijuana.

Obviously, in order to become law, some form of the bill must pass through both houses of the General Assembly and the governor must sign the bill into law. We are a long way away.

Under HB 1393, the possessor of the weed for medical purposes will be required to register, get a registration card, and may not possess more then the amount allowed by law, nor more then the amount of live plants permitted by law.

The real question I had was whether the possession of marijuana would still give the police probable cause? In other words, if a person is sitting on their front step toking away on a big fat blunt and have their state pot card around their neck, can the cops: stop, frisk, search, arrest, detain, etc.?

The only part of the proposed new law that addresses that question reads as follows, "Possession of, or application for, a registry identification card shall not alone constitute probable cause to search a person or property of a person possessing or applying for the registry identification card or otherwise subject the person or his property to inspection by any governmental agency."

This doesn't say much. I will update this post as we move forward.

Pardon v. Commutation

What is the difference between a pardon and a commutation?

A pardon means that you are fully cleared of any responsibility for the crime for which you had been convicted--the conviction is gone. A commutation means that you still have a record and your conviction stands, but your sentence is changed.

The sentence changes to however the governor or president changes the sentence. The sentence can be a death sentence that is commuted to life, a life sentence that is commuted to a parole eligible sentence, or a jail sentence to a probationary sentence.

Often, a commutation is a very good outcome and much more reasonable request.

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Can I file a PCRA when I admit I did the crime? (Commonwealth v. Haun, 2009 Pa Super 223)

I was convicted by jury of a crime. I admitted my guilt at sentencing. I asked my attorney to file a direct appeal. He did not. I want to file a PCRA against my lawyer for not filing the direct appeal. Can I file a PCRA even though I admitted my guilt?

Under 42 Pa.C.S. sec. 9542, in the past, you could not file a PCRA if you admitted your guilt because there would be no way to benefit from an ineffectiveness claim. Therefore there was no way to to win a PCRA under this circumstance.

However, on November 20, 2009, the Superior Court overruled 9542 and held that a showing of innocence is no longer necessary in a PCRA claim. Commonwealth v. Haun, 2009 Pa Super 223.

What is the difference between and pardon and amnesty?

What is the difference between and pardon and amnesty? When someone has been prosecuted and convicted of a crime, if they want to remove the conviction, they must seek a pardon. In state court their are exceptions to this rule, like exungements for summary offenses, but in federal court, you must get a pardon to remove a conviction.

Amnesty is where a person or group of people are told that they will not be prosecuted for a particular offense if they comply with terms of the amnesty, or simply admit to their role in the alleged crime. For example, the government can say that on a certain day all citizens who possess illegal firearms can turn firearms in to a police station and they will not be prosecuted. The idea that people are possessing the illegal weapon, but the government agrees not to prosecute, is a form of amnesty.

Always remember, the state and federal governments are separate sovereigns, so you can be prosecuted in one court even if you are granted amnesty in another.

DUI DUI, Nieves is bad law!

DUI update. We have been asked so many questions regarding DUIs where the person gets a second DUI arrest before being convicted of the first. Our answers have been all over the board with our strateies, but the basis for my answers was that a case called Nieves prevented a consolidation of DUIs as two first DUIs. We had all kinds of strategies to minimize the poor law set in Nieves.

The wait is over. On October 23, 2009, in Commonwealth v. Haag, Justice McCaffery wrote for a unanimous Court, overruling Nieves and its progeny. You must be CONVICTED of the first DUI before the arrest of the second, otherwise, you have two first DUIs.

As an aside for any legal scholars, the cases specifically overruled are Misner, Nieves and Stafford.

Cheers to the Supremes!

Is my record expunged after I complete ARD?

After I complete ARD (Accelerated Rehabilitative Disposition) is my record expunged automatically?

NO! Your record is not expunged automatically upon completion of ARD. If you were on ARD and you successfully completed ARD and paid all of your fines and costs, the record of your arrest was NOT erased. Feel free to contact our office for help.