DUI in review

Its New Years Eve and I thought it appropriate to write a bit about DUI law in PA. After reading Jay's last post, I thought a practical note would be a relief for some of our readers--OK, me.

In Pennsylvania DUI stands for Driving Under the Influence. In some states its call DWI, which stands for Driving While Imbibing. In order to be found guilty the Commonwealth must prove both that you were driving the car and that you were under the influence.

Driving has been defined to be as little as sleeping one off in a parking lot in the dead of winter with the engine turned over so heat gets in the car and you don't freeze to death. Under the influence can be different amounts of alcohol, marijuana, cocaine, heroin, etc.

If you have never been arrest before and you have a valid drivers license, insurance and registration, you may be eligible for ARD (Accelerate Rehabilitative Disposition). ARD means you won't have a criminal record. You may be able to ARD even if it is your second DUI or second arrest.

If you can't get ARD and it is your second DUI in Philadelphia County, you may be eligible for Philadelphia's DUI Treatment Court, which for some folks is a GREAT program.

If you can't do either of the above and you are found guilty or plea guilty, the mandatory minimum sentences depend on how many DUI's you have had in the last 10 years, the level of chemicals in your body (the BAC for alcohol), whether you cooperated during the chemical testing and whether there was an accident.

Best advice: don't drink and drive. Happy New Year!

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Why Punish?

After years of practicing criminal law, I sometimes still find myself pondering the basic moral questions that got me interested in this practice to begin with. A client was in the office today, a young man who became addicted to prescription pain pills after a construction accident and started selling pills to support his habit. He is facing a mandatory period of incarceration and seemed completely lost and confused. Why are they trying to punish me so much, he asked. I had no good answer.

What is the justification for punishment in the criminal law? Whole philosophical careers have been spent on the issue. Generally, the reasons we punish break down into two groups - the consequentialist/utilitarian theories and the deontological theories. The utilitarians punish criminals because doing so advances the total good in the world. It deters the offender himself and it deters others from committing crimes, for example. A deontologist, or rights-based theorist, would say that we punish a person because he deserves it. Punishment is right because it is earned.

I think that just deserts is a necessary precondition for punishment, but it isn't enough of a justification by itself. I think that rehabilitation needs to be the primary justification and goal of punishment. Essentially, we punish folks who deserve to be punished in order to correct their behavior and allow them to re-gain full and unrestricted membership in society.

I would never send my client to jail, and I don't believe an average person would want him in jail either. Luckily, there are some reasonable prosecutors out there who agree that second chances are important. My goal is to use my persuasion and negotiation tactics to get my client into rehab and drug treatment to avoid jail. I'll say a small prayer tonight that I am successful.

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Sex offenders banned from the Internet

New Jersey has become the third state (along with Florida and Nevada) to pass a law banning convicted sex offenders from ever using the Internet again. The law would apply only to those sex offenders who used the Internet in committing their crimes.

Although none of us at Hochberg Levin & Zeiger are pro-crime, and although we recognize that sex crimes (especially against children) are among the most heinous offenses, I will personally state my opinion that this law goes too far. First of all, the law may be applied retroactively to folks who have already been convicted. It is simply unfair to add on punishments to someone's life that they didn't know about when they made the decision to go to trial or plead guilty. The Supreme Court allows this kind of retroactive nonsense to go on, even though it seems to violate the ex post facto clause of the Constitution, because these types of laws are not considered "punishment" but rather an administrative monitoring civil-type penalty. Sound silly? That's our courts.

Separate and apart from the retroactivity issue, another problem I have with this law is that there's no time-limit on it. What happened to the notion in our society that you serve your time, finish your parole or probation, and you've paid you debt to society? We've gotten so scared as a society that we're rushing as fast as we can to remove liberty. There's no such thing as forgiveness anymore, no welcoming back offenders into society and helping them to become productive members again. We're ridding ourselves of the idea that people can be rehabilitated. The pendulum keeps swinging further and further, with politicians trying to out-tough each-other on crime. I fear where we are headed.

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Affidavit v. Discovery

I got the affidavit, is this the same as the discovery?

An affidavit is simply a version of a story or a statement of a specific fact that is signed by a police officer or a civilian that swears that what they wrote is true and correct to the best of their knowledge.

Discovery is any and all reasonably related information regarding your case; including affidavits, warrants, medical records, police reports, and chemical analysis. Discovery is far more complicated than this brief answer, but I hope this helps.

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Parole Board

My boyfriend got a hit for a parole violation twice. How is this possible? Seems unfair that the Pennsylvania Parole Board can hit twice for the same thing.

Technical and direct violations are totally different. You can get a technical violation for many many reasons. For example, not reporting, not living at the address stated, owning a cell phone, dirty urine, etc. A direct violation is a conviction for a new crime.

Normally, when someone gets arrested on new case, they obviously have a to wait a while until that case comes to trial or gets thrown out. While waiting for the outcome of the new case (also call ed the front case), the parole board can violate on all of the techs on the old case (also called the back case).

Once the front case is over, if the parolee is found guilty or pleads guilty, the parole board will hit him again.

From the sound of your question, he was violated for techs, then was found or plead on the new case, then got hit again for the direct. Email back if I did not understand your question. Good Luck.

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Do I have a criminal record for a juvenile act?

I got arrested as a kid for stealing a playboy from the local store. I had to go to court a lot. Do I have a record for this?

If you are under 18, and you get arrested your go to the Court of Common Pleas for a trial. The District Attorney's office may offer you a Consent Decree. If you accept the Consent Decree and complete all of the requirements, you will not have a record.

If you are not offered a Consent Decree, you must find out what happened in the case. Either you were found not guilty, found guilty or plead guilty. If you were found not guilty, you have no record. If you were found guilty or plead guilty you have to look at a print out of the final disposition of the court to see if you were ever "adjudicated delinquent." If so, you have a record. If not, no record.

This can get confusing. If you see the term deferred adjudication, comment on this post and I will respond to that specific issue.

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Police Search for Marijuana

The questions of the fortnight seem to be about pot. We have received many questions over the last two weeks about weed, so I felt obliged to post a generic version of the questions:

I am at a holiday party where booze and weed are present. Everyone is imbibing one or the other. Suddenly the police are at the front door responding to a noise complainant. Someone puts a newspaper on top of the weed on the kitchen table. The person who answers the door lets the cops into the house. The cops start to walk around the house. Eventually one of the police officers lifts up the newspaper on the kitchen table and sees the pot. I get charged with the pot. Was the activity of the police officer legal or illegal?

In order to enter the home of another to search or seize, the cops need a warrant. There are many exceptions to this rule and police often do fall under one of these exceptions when they enter a house. One of these exceptions is consent. In the above question, the person who answered the door "let" the police into the house, meaning they gave their consent.

Once inside the house, the police can basically walk through the house and seize any items in plain view that are contraband or dangerous, like guns or drugs. Plain view means the item(s) must be readily apparent to the naked eye. In the instant case, the weed is under the newspaper, so the cop would have had to LIFT the newspaper in order to see the week--they can't do this.

Therefore, the marijuana should be suppressed. After the Judge rules that the weed is suppressed the District Attorney will usually withdraw prosecution in the case.

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Federal Appeal - How Long Do I Have

My boyfriend was found guilty of a charge in federal court and his sentencing isn't for another four months. He was told he has to appeal within ten days of the guilty verdict. Is this correct?

NO, this is incorrent. Your boyfriend got some bad information, which is unfortunately a common thing in criminal cases. Rule 4 of the Federal Rules of Appellate Procedure states that a defendant has ten days to file a Notice of Appeal from the moment a final judgment is entered. The Judge will enter the final judgment shortly after he or she hands down the sentence. That means your boyfriend doesn't have to file an appeal until after he is sentenced. As a matter of advocacy, it is never a good idea to tell the Judge that an appeal is coming until after the sentence is pronounced - there's no reason to give the Judge information that might negatively affect the sentence.

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Sexual Molestation

My husband is accused of sexually molesting my nephew. He didn't molest him. There is no proof. The police have not investigated anything. My husband got arrested. How is this possible?

We get this question more so then any other: someone says I did something, there is no proof, how can I get charged with this? In our nation, you are still innocent until proven guilty beyond reasonable doubt. That means that you have the right to a trial and to fight the case. No one can take that right away from you. No matter how difficult the courts, district attorney and the police make it, you can always fight.

Demand your right to a jury trial and assert your innocence.

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Fighting Ex-es

My girlfriend's ex showed up with his girlfriend. As they were leaving Dad wanted their kid to bring a newly earned trophy to Dad's house. Mom said no. Lots of yelling. Lots of Screaming. Dad finally left with no trophy and punched a hole in the front screen. I called 911. The cops came and said no criminal act occurred. This seems wrong to me. What can I do?

The owner or renter of the property can go to the local judge and file a private criminal complaint. The only criminal act is criminal mischief for the hole in the door, and maybe disorderly conduct or harassment. There is no other criminal act. No assault because no one got hit or hurt. No trespass because when he went to the property he was allowed to go, it wasn't until after he was there that there was an issue. No terroristic threats because he didn't threaten anyone.

Why not talk to the kid with all parties in the room and tell the kid to put the trophy where ever he or she wants to put the trophy and that no one will ever get mad and he or she for choosing because everyone loves the kid. ITS THE KIDS TROPHY. Don't make the kid feel bad. Kids hate it when mom and dad call the cops on each other--kids think its 'their' fault. Mom and dad sound like the children here. If I was the judge and I heard this, I would yell at both parents and order them to go to parenting classes or else I would hold them in contempt.

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Not Brought Down

My boyfriend has a case in Philly, but he is in custody in North Hampton County and he never gets brought down for his preliminary hearing. His lawyer is a fighter, the case is marked must be tried, but the judge just won't throw out the case. Why hasn't the case been tossed?

At a preliminary hearing in Philadelphia, when the defendant is not in local custody, the district attorney is required to file a writ to have the defendant brought down to Philadelphia for the preliminary hearing. The city then reviews the writ and determines how many beds they have and how many writs have been prepared. The city then turns down a certain amount of writs so the defendant is never brought down to Philadelphia.

The DA in the courtroom for the preliminary hearing argues that they prepared a writ but the city turned down the writ, so it isn't their fault so the case should not be discharged. Often times judges will give a Philly DA five or more attempts to get the defendant brought down.

The term must be tried is a legal fiction. As far as I know, must be tried does not really exist anywhere other than Philadelphia. Must be tried is simply a signal to both sides that they better both be ready at the next listing; it has no legal teeth. Accordingly, if the defendant is not brought down, and both the DA and the defense lawyer are ready, the judge will not throw out the case.

Eventually, the judge will get tired of this and will throw it out. My experience is that it takes about six months of not brought downs for a judge to toss it on those grounds. Good Luck.

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I was arrested for DUI but was not drinking, can I still be charged?

YES. The Pennsylvania DUI statute covers not only alcohol but also outlaws driving while under the influence of a controlled substance. If you had any illegal drug, i.e. cocaine, in your system you are guilty of DUI. It should also be understood that there is a zero tolerance for controlled substances while you are driving. If you have any amount in your system, even trace amounts, that is sufficient to sustain a conviction for DUI.

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Death Penalty Abolished In New Jersey!!!

The New Jersey Assembly has passed a bill to outlaw and abolish the death penalty in that State - a bill governor John Corzine has already promised to sign. Although New Jersey has not executed anyone since the early 1960's, this measure is an important step forward in ending the ultimate punishment. In recent years, numerous death row inmates have been exonerated, which has led to renewed and sustained efforts to end the death penalty. New Jersey has taken an important step forward in becoming the first state in more than forty years to end this economically wasteful, deeply flawed, and inherently wrong penalty.

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Marijuana - First Arrest

I'm from South Philly, I'm 19, and I got arrested on Thursday for smoking a joint. I've never been in trouble before. What's going to happen to me?

First of all, DO NOT PLEAD GUILTY to anything. With first time offenders for small amounts of marijuana, the government will always offer you a small fine in exchange for a plea. Sometimes people jump at that because it means no jail and no probation. BUT, in Philadelphia, you can do better. If you get an attorney involved right away, who knows what he or she is doing, we will have a deal for no conviction worked out before you ever get near a judge. The greatest likelihood is that you will do about forty or fifty hours of community service and the government will withdraw the charges. A few months later, we will move to have the arrest record expunged and have all traces of your photo, fingerprints, etc...permanently removed from existence.

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I was arrested and never given my Miranda warnings. Is that legal?

I was arrested and never given my Miranda warnings. Is that legal?

YES. The law does not require that police officers give a defendant Miranda warning upon arrest. The only time that the warnings must be given is prior to a custodial interrogation. There has been much debate and litigation had over the meaning of the words "custodial" and "interrogation." There is no clear definition but in the simplest terms you are in custody if you are not free to leave and you are being interrogated if the question asked of you is intended to elicit an incriminating response. In other words, if the police should reasonably expect that the answer to the question they are asking you will lead to evidence of your guilt, you should be read your Miranda warnings first.

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Heroin, Marijuana, Cocaine: Mandatory Minimum Sentences, Looking at years in jail?

How much weight is required to be subject to a mandatory minimum sentence for heroin, marijuana and cocaine?

In Pennsylvania you are only subject to a mandatory prison sentence for a drug conviction if you are convicted of distribution. Simple possession does not carry a mandatory prison term.

Heroin Mandatory Sentences: If you are convicted of distributing heroin and the amount in question is one gram or greater, you are subject to a mandatory 2-4 years in jail. If you have a prior conviction for drug dealing the sentence is enhanced and you receive 3-6 years in jail.

Cocaine Mandatory Sentences: The mandatory sentences for cocaine are similar to heroin but the weight of drugs required to have the mandatory sentence apply is greater. In order for a mandatory to apply to the distribution of cocaine the amount must be two grams or greater. For a first conviction the sentence is 1-2 years in jail with each subsequent conviction carrying 3-6 years at a minimum.

Marijuana Mandatory Sentences: Distribution of marijuana carries a mandatory sentence if the amount is two pounds or greater. For the first conviction the sentence is a year and for the second and subsequent convictions the sentence goes up to two years.

There are additional factors which can increase the mandatory sentences associated with drug distribution. For instance, there is an enhancement for dealing drugs in a school zone. Also, the above listed mandatories can go up dramatically for much larger amounts of drugs. The above is simply a list of the minimum thresholds for mandatory minimum sentences to apply in Pennsylvania.

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What should I do if I am arrested and detectives want to talk?

If I am innocent and have been arrested for a crime should I talk to the detectives and explain to them that I was not involved?

NO. It is never a good idea to talk to detectives or any police agent without an attorney. You have the right to remain silent and you should always assert that right. Remember that it is very rare that the police will let you go just because they hear your side of the story. In all likely hood the reason they are questioning you is to get you to incriminate yourself or say something that they can use against you in the future. The best thing to do if you are being questioned by police is ask for a Philadelphia criminal defense lawyer. The law requires that after you ask for an attorney the questioning must stop and you are to be provided with an attorney prior to the questioning starting up again.

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My car was searched after I was arrested

Is it legal for the police to search my car after I have been removed and placed under arrest?

Generally speaking the police need a warrant to search a vehicle. There are some exceptions to this general requirement. Sometimes the police will say that "exigent circumstances" existed and therefore they did not need a warrant. Exigent circumstances would be situations that demanded unusual or immediate action justifying a warrantless search of a car. Police have claimed this justification even after a defendant has been removed and placed under arrest. The Courts in Pennsylvania have ruled that after a defendant is removed from a car and placed under arrest there can be no exigent circumstance present and to search a vehicle a warrant must be obtained. Commonwealth vs. Casanova. If drugs or other contraband was seized during such a search a judge should grant a motion to suppress the evidence.

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Supreme Court Upholds Lesser Sentences For Crack

Does cocaine by any other name merit a higher federal drug trafficking sentence? Apparently not. On Monday, the United States Supreme Court issued its decision in Kimbrough v. United States, No. 06-6330. The Court reviewed the sentence applied to Derrick Kimbrough, who pled guilty in 2005 to possession of a large amount of crack cocaine. The sentencing judge, noting the disparity between the punishments for cocaine powder and rock (crack) cocaine, decided to cut ten years off the recommended sentence. That decision has been upheld.

Last month, the U.S. Sentencing Commission decided to reduce the disparity between powder and rock cocaine, which is seen by many to be an irrational and racially disparate sentencing rule. The seven member commission meets today to decide whether or not to make that change retroactive. If they vote yes, the federal drug sentences of nearly twenty thousand current inmates may be altered.

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Filing of a Complaint

A complaint was filed against me on November 1, 2006. Today is December 1, 2007. Rule 600g states that the Commonwealth has 365 from the day of the filing of the complaint to prosecute me. Can I still be charged?

The issue is whether you were actually charged, and does the informal filing of a complaint with no subsequent arrest equal the actual filing of complaint under rule 600g? The filing of the complaint aspect of the rule has generally been defined to mean the commencement of criminal proceedings against the defendant.

An arrest is the actual beginning of criminal proceedings. Therefore, I would say that if you have not been arrested, the clock has not started to tick.

This answer does not mean that if you are ever arrested that you can't make an argument under the statue of limitation or pre-arrest delay that District Attorney be barred from prosecuting you. See my previous answers under the statute of limitation and pre-arrest delay for more details.

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