Maximum Marijuana Penalities

"What is the maximum sentence possible for selling marijuana?"

Although many marijuana dealing cases end in probation, there are many people serving jail time and even state prison sentences for selling marijuana. The maximum possible sentence for most marijuana dealing crimes is five years in jail. (35 P.S. 780-113(f)(2)).

However, there is an exception made for cases involving more than One Thousand Pounds of marijuana. In these most serious cases, the maximum penalty is doubled to ten years in jail. (35 P.S. 780-113(f)(1.1)).

As a side note, any time a gun is used in conjunction with a drug dealing situation, there is a five to ten year mandatory sentence. Because the statutory maximum for 99% of marijuana cases is only five years, these cases can end with the very unusual sentence of five years flat. (This is unusual because the minimum and the maximum of the sentence are the same.)

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Will My Police Brutality Case Be in Federal or State Court?

Will My Police Brutality Case Be in Federal or State Court?

When we file police brutality law suits for our clients there is really no difference at all as to whether we file in Federal or in State Court. We make the decision as to where we file simply based on our feel for the facts of the case and nothing else. The only exception is that if we are going to sue under a federal law, we generally file in Federal court. If we sue under a Federal theory, but file in State Court, the attorney for the city can file a special motion to have the case removed from State Court and sent to Federal Court anyway.

As an aside this question came from a reader who was assaulted by the police and arrested for disorderly conduct and the case was listed at 1401 Arch Street, in Community Court. We see a lot of police brutality cases where the police make an arrest on disorderly conduct to mask the police brutality aspect of the case.

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Flipping The Bird Is Not Disorderly Conduct

"Can the police arrest me for giving them the finger?"

A Western District of Pennsylvania federal court judge, David Cercone, has recently ruled that giving a police officer the middle finger is protected speech under the First Amendment, and not a criminal act.

Back in 2006, a fellow named David Hackbart was having a bad day. After flashing his middle finger at a fellow motorist, and then making that same gesture toward a Pittsburgh Police Officer, the officer cited Hackbart for disorderly conduct as a summary offense. After being found guilty by a local magistrate, Hackbart appealed and won his case via a voluntary dismissal from the DA. Then, in a move requiring a whole lot of chutzpah, Hackbart turned around and sued the police for violating his civil rights. Judge Cercone has denied summary judgment for the police officer and found that the lawsuit may go forward, because giving a cop the finger is lawful.

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Legalize It!

Check out this excellent opinion piece on cnn.com. The author makes a cogent, concise argument for why the War on Drugs is not only failing us, but harming us.

My favorite excerpt: "Violence was common in the alcohol industry when it was banned during Prohibition, but not before or after. Violence is the norm in illicit gambling markets but not in legal ones. Violence is routine when prostitution is banned but not when it's permitted. Violence results from policies that create black markets, not from the characteristics of the good or activity in question."

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Suing Police

Can I sue the police?

You can sue the police just like anyone else. The issue with suing the police is what was your role in the event that caused your damage by the police. The police should be allowed to protect our society and to do their jobs. So if you were in a situation and you were doing something that you should not have been doing, then you may not have a case.

Remember that in a criminal case, the District Attorney has the burden of proof. When you sue the police, you are now the moving party, so you have the burden of proof. It is far easier to play defense then it is to be on the offensive. In a police brutality case, you have the burden of proof, so your job is much harder.

We sue the police quite often, but not all police brutality cases are created equally.

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Disarming a police officer

Is there a crime called disarming a police officer?

Yes. In the criminal code of Pennsylvania, there is a crime called "Disarming law enforcement officer" which you can find at Title 18 Section 5104.1 of the Code.

This law was passed recently (effective in 2006) and there has been very little litigation in the appellate courts over what the statute means. It is clear that if someone either attempts or does in fact take a gun or other weapon away from a police officer, that person commits a felony of the third degree. The statute does not define the term 'weapon'.

I recently had an inquiry in a case alleging that the defendant disarmed a Philadelphia Police Officer of his police baton. It is, as far as I can see, a question of first impression whether a police baton counts as a weapon under this section. I'll note that the term weapon is defined elsewhere in the criminal code of Pennsylvania to mean: "Anything readily capable of lethal use and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have." (Title 18, Section 907). Under that definition, a baton should not be within the meaning of the term 'weapon' and the charge should be dismissed.

Should I be retained and end up litigating this issue, I'll certainly post the outcome.

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I Shot the Sheriff, but I Did Not Shoot the Deputy

Help, I shot the sheriff, but I did not shoot the deputy and I am being charged for aggravated assault and attempted murder of for both the shootings. My lawyer told me that I am being charged with conspiracy for both and I don't get it. Ok, yes, I was present when we bought the guns and when we planned the shootings but my rappy shot the deputy, not me. Can you help?

If you take a substantial step towards the commission of a crime, you can be found guilty for not only the crime that you commit, but any other crime that occurs as a result your initial act. Say you and your friend decide to rob a gas station and you are going to be the lookout. Your friend goes into the gas station, you remain outside. Your friend robs the cashier of the gas station at gun point. Things go awry and your friend kills the cashier.

You can be found guilty of murder 2 (felony murder) because you were part of the conspiracy to commit the robbery and you took a substantial step in furtherance of the conspiracy by being the lookout.

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Was I convicted of a summary or a misdemeanor?

I was convicted of a something years ago and I want to know if it was a summary or a misdemeanor. How can I tell?

1. Some charges are only misdemeanors or summaries. In other words, the name of the charge itself dictates whether the charge is a misdemeanor or summary.

2. Other charges can be both misdemeanors or summaries, but those charges should have the code sections for which you were convicted. Those numbers can reveal the answer.

3. If you were convicted at the magistrate, it was only a summary. If you were convicted in the court of common pleas, it could be either.

If it was all summaries, you may be eligible for an expungement.

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Dismissal of Case per Rule 586

"What is rule 586 in the Pennsylvania crime code?"

Rule 586 is entitled Dismissal Upon Satisfaction or Agreement. It applies to any non-violent felony crime. (There is a similar rule, Rule 546, which applies to misdemeanors.) Essentially, the rule stands for the proposition that the district attorney can decide to dismiss a case if the defendant has agreed to pay restitution or otherwise satisfy the victim of the crime.

You see this most often in forgery or theft cases. If the defendant apologizes and returns all of the money, and everyone agrees, the DA can dismiss the case under this rule.

It is important to remember that the District Attorney must agree to dismiss the case. Nobody has any right to have a case dismissed under this rule.

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Re-arrest

I had a preliminary hearing on a burglary case and the witness never showed up. The case was thrown out. Can I be re-arrested?

The answer is, most likely, yes. Unless the case is dismissed or withdrawn WITH prejudice, then the government can re-arrest you. Even if your case is dismissed by a judge after a full preliminary hearing, the government can still re-arrest you. In that case, however, the hearing is not listed in front of the magistrate again (or in Municipal Court in Philadelphia). Instead, it gets listed in miscellaneous motions court in the Court of Common Pleas. If the higher court still believes there is insufficient evidence, then the government may appeal to the Superior Court.

The only way a case listed for a preliminary is absolutely, finally disposed is if the case is dismissed with prejudice and there is no appeal within thirty days.

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