Expungement of Juvenile Records

In Pennsylvania it is possible to get your juvenile record expunged even if you were adjudicated delinquent (found guilty). The Court allows expungements in four cases:

1. A complaint is filed which is not substantiated or the petition which is filed as a result of a complaint is dismissed by the court.
2. Six months have elapsed since the final discharge of the person from supervision under a consent decree and no proceeding seeking adjudication or conviction is pending.
3. Five years have elapsed since the final discharge of the person from commitment, placement, probation or any other disposition and referral and since such final discharge, the person has not been convicted of a felony, misdemeanor or adjudicated delinquent and no proceeding is pending seeking such conviction or adjudication.
4. The individual is 18 years of age or older, the attorney for the Commonwealth consents to the expungement and a court orders the expungement after giving consideration to several factors listed in the statute.
   

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I got arrested for a gun (VUFA)

I have never been arrested before. Philadelphia is so dangerous that I bought gun for my own protection. I did not have a license to carry and I got pulled over by the police. I told them about the gun and they arrested me. What will happen to me?

You were charged with Violation of the Uniform Firearms Act. Generally this is a felony of the third degree, but can be made into a misdemeanor of the first degree if you are "otherwise eligible" to get a license to carry.

This definition is somewhat complex. You sound like you are otherwise eligible. Email me if you have more questions.

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Double Jeopardy In DUI Cases

I got a pulled over and cited for transporting alcohol illegally in my car. I got a summary citation. I appeared at the local Magisterial Judicial District in regard to said ticket and plead guilty. I got sentenced to a large fine and I paid it. Now the original officer that stopped me is harassing me telling me that he thought I was drunk the night he pulled me over and I would soon be charged with DUI. They never did any chemical tests. Can the police do that to me?

Based on the information you have provided in your question, the answer is unclear. Under a case I refer to as Campana, once someone is found guilty of a criminal offense any new charges brought on from the same transaction or occurrence are barred under a double jeopardy theory. The problem with your question is whether a "transporting alcohol" summary offense is considered a criminal conviction under Campanna. I think it is. The reason I think the summary offense conviction is criminal is because if you try to get the summary conviction expunged the District Attorney will argue that you can't because it is a criminal conviction. They can't have it both ways. Further, even if they did charge you, there was no testing so the district attorney would have a hard time convicting.

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Strike Two

My sister had a conviction for robbery. She got 5-10. She was out on parole. She just got locked-up for a new robbery. What is she really looking at? Do I need to hire a criminal defense attorney?

This is a more complicated question that you think it is. In Pennsylvania there exists a three strike law. A strike is defined by statute, but generally it is a felony of the first degree that involves extreme violence; armed robbery would be one of these.

When a person is convicted of the first strike, nothing special happens at sentencing. When a person is convicted of the second strike, a mandatory minimum of 10-20 years must be applied at sentencing, meaning the defendant may not get less that 10-20 years. When a person is convicted of a third strike, they get life.

In your question, you stated that your sister got 5-10 on the first case. Was that a strike? Armed robbery has its own independent mandatory of 5-10, so my guess is that it was a first strike. The new case you said is an armed robbery, so if she is convicted of F-1 Robbery and she used a firearm in the robbery, she is looking at a mandatory 10-20. Also note, the judge could give her more.

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Shoplifting and Drug Addiction

"I was shoplifting at Walmart. I was lifting some DVDs. This is my third time getting busted and I am on probation. How it happened was this lady sow me take the stuff,she called the store and loss prevention followed me around,is it legal that this lady called the stored and reported me."

Yes, it is legal. A member of the public who sees a crime and alerts the police is generally seen as doing a good service for the community as is assists the police in arresting people who are breaking the law.

What is it that motivates you to shoplift? If it is a drug or alcohol addiction, I urge you to seek help in getting healthy again. That will not only benefit you health-wise but impress the judges. A judge who sees a drug user voluntarily enter into treatment is less likely to put that person in jail. Even if it is daily AA/NA meetings, please try to get help.

Good luck to you.

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Standing and the Pennsylvania State Police

We have three questions about the Pennsylvania State Police (hereinafter "PSP") and their ability to have standing in court in Pennsylvania and their ability to interpret orders from judges. I am going to attempt to bring together the questions with my own hypothetical that I hope incorporates all three questions.

PART I

I was accused of running a brothel out of my property. For purposes of this question I was charged with various felonies and misdemeanors. I appeared at the first preliminary hearing listing with my lawyer. We put on the preliminary hearing. The Magistrate Judge discharged my case due to a lack of evidence and told the local cops to stop wasting his time and stop putting law abiding citizens through the ringer with no evidence. The judge threw out the cops and all of the charges.

I had never been processed or arrested in this case because in my township they wait until after the preliminary to process and finger print you. After the case was thrown out, I left and went home--no processing, no prints. Two days later I got a call from the PSP asking me to come down for finger printing. I ignored them. They kept calling.

I had my lawyer file an expungement motion in the Court of Common Pleas in my county. The motion was granted. The District Attorney did not object to the expungement. The State Police still keep bothering me and refuse to destroy the record of the arrest by the judge. Is there anything I can do?

If the expungement has been granted, part of the official Expungement Order is for the PSP to destroy the finger prints. If the PSP refuse to leave you alone, you can go back in front of the Common Pleas Court judge and ask that he hold the PSP in contempt for not following his order.

PART II

I tried to do everything that you said and the judge ordered that they leave me alone. The PSP had their lawyer file a motion in the Superior Court of Pennsylvania to appeal the original expungement order. Can they do that?

No. The applicable case law in PA is crystal clear. The PSP have absolutely no standing to object to expungement orders and the PSP has no right to interpret the Order. Only the DA can object. In your case, the PSP's conduct is outrageous. The Superior Court will order the PSP to follow the Common Pleas Judge's Order.

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Early Termination of Probation

Can I get my probation to end early? If yes, what do I do?

You file a motion for early termination of probation with the judge who originally sentenced you. Very hard to get that kind of motion granted. Make sure all fines, costs and restitution if any are fully paid. Make sure no dirty urines. Make sure that every requirement of probation has been fulfilled. Good Luck.

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The Municipal Court of Philadelphia

I had a case in the Municipal Court of Philadelphia. I was charged with Disorderly Conduct as an Misdemeanor 3, but found guilty of Disorderly Conduct Summary. I want to appeal my case to another Philadelphia court. What is the procedure?

When you are convicted of a crime in Philadelphia's Municipal Court you can appeal your conviction to the court of Common Pleas of Philadelphia either in the form of a Writ of Certiorari or a De Novo Appeal. A Writ of Certiorari allows a judge to review the law of the case. A De Novo appeal gives you the right to start over with an entirely new trial.

In your instant example, you do not have a right to file a Writ of Certiorari because you were convicted of a summary offense. Your only choice is to file a De Novo appeal.

You should note that you cannot be convicted of Summary Disorderly if you were only charged with M3 Disorderly because it is NOT a lesser included offense. You should therefore file a pretrial motion to dismiss as on double jeopardy grounds. A discussion of double jeopardy is for another post.

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ARD in PA, Problems in Wyoming

I got arrested for DUI in PA. While awaiting trial, I moved to Wyoming and got a new driver's license. I went back to PA to face the music. I took ARD (Accelerated Rehabilitative Disposition) on the DUI. I lost my license for 60 days as part of the ARD.

Wyoming is now claiming that under their law, I have to lose my license for 6 months. Is this right? How can Wyoming do this to me?

There is no 'right' to drive. You don't have a right to have a license. Any state can have any rules they want to have that govern their driver's licenses so long as they apply to all people equally.

Therefore, Wyoming can have whatever rules and restrictions they want to have in regard to their drivers' licenses.

If Wyoming wants to say that anyone that gets an ARD in PA, while in possession of a Wyoming license must serve a suspension in Wyoming for 6 months, they can do it.

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Locked up for over a year

My son has been locked up in Philadelphia for over a year without getting into court? The witness has never shown. Is this possible?

Eventually a case will get thrown out. Depending on the situation and the type of case, the District Attorney has either 180 days or 360 days to prosecute him, less any time attributable to his lawyer or to him. (See prior posts on Rule 600, Pre-arrest Delay, and Statute of Limitations)

Also, note that Must Be Tried is a legal fiction and exists only in Philadelphia county. Must be tried means nothing unless the judge enforces it.

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Bench Warrants in Philadelphia County

My cousin got picked up on a 17 year old bench warrant. He tells me he has never been arrested before. How the heck could he have a bench warrant?

It is quite odd that someone would get picked up on a bench warrant having never been arrested. In Philadelphia county when someone is arrested that are finger printed and given an ID number that is forever linked to that finger print. That ID number is referred to as a PP number. PP stands for Police Photo. Therefore, when a person gets arrested, there exists someone a PP number for the defendant that was arrest on the case and that PP number has finger print attached. If a person gets picked up for a bench warrant and wants to argue that it is impossible that it is his bench warrant because he has never been arrested, his lawyer can simply request that the finger prints be brought into court to disprove the identity.

The obvious next question is, how long does this take? That answer depends on the specific circumstance. At worst case scenario, I would hope never longer than three weeks. I think I could get this cleared up within three to four business days.

I am interested to hear Jay's thoughts on this one.

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7 year rule

Another question about a 7 year or a 10 year rule. This is a follow-up to the last entry. Now I am being asked if I am sure of my answer.

Yes, I am sure. If you go to our site on criminal records, www.expungementpardon.com and click on the links for expungements and pardons, you will see the actual law on criminal records. Further, PA has recidivism statutes in regard to its sentencing guidelines, DUI, and three strike laws that all carry on for as long as the statute states. I assure you there is no 7 or 10 year rule. Again, there are some rules about admissibility of conviction in future proceedings but that deals with the laws of evidence, not whether you have an actual record.

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Clean Record?

How long after a conviction is my record automatically clean? I hear its 10 years? Is that true?

If you have been convicted and sentenced, it will never be clean unless you get a pardon. If you are referring to admissibility in future proceedings, the rules depend on the type of proceeding. For example, at a new trial if that person were to testify, there is a ten year rule on cross examining with the conviction in regard to brining in the conviction to show dishonesty, etc., but this is just one small example. However, if the person is convicted of a new crime, the old conviction is always admissible at sentencing.

If you were only arrested but never convicted, you can apply for an expungement at any time.

We seem to get quite a bit of these, so check out some of the previous posts.

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