How can the DA's office prove a DUI General Impairment charge when I refused a blood test or a breath test?

How can the DA’s office prove a DUI General Impairment charge in PA when I refused a blood test or breath test?

If you refused to take a blood test or a breath test in Pennsylvania, and the police officer had reasonable grounds to suspect you were driving under the influence of alcohol or drugs, you will lose your license for either 12 months, or 18 months if you had a prior DUI or chemical test refusal. However, since you refused the test, you may be wondering how the DA’s office will try to prove your guilt on a DUI charge when they have no evidence of your blood alcohol content.

Pennsylvania has established a DUI General Impairment charge to ensure that someone who refuses to submit to chemical testing does not get off the hook for a DUI. In a DUI General Impairment prosecution, the Commonwealth does not need to offer evidence of blood or breath testing results to prove your guilt. We offer this article as a basic summary of the law and evidence that may be offered against you in court.

Pennsylvania DUI General Impairment Law

The crime of DUI General Impairment is found under Title 75 Section 3802(a)(1) of the Vehicle Code. To prove you guilty of a DUI General Impairment offense in Pennsylvania, the Commonwealth must prove, beyond a reasonable doubt, that you drove, operated or were in actual physical control over the movement of a vehicle after imbibing a sufficient amount of alcohol rendering you incapable of safely driving, operating or being in actual physical control of the movement of the vehicle. Pennsylvania Standard Jury Instruction 17.3802(a)(1) further provides that a “defendant need not have been drunk or severely intoxicated or driving wildly or erratically to commit this crime. It is enough if alcohol had substantially impaired the defendant’s normal mental or physical faculties that were essential to safe operation of a vehicle.”

As noted in the law, the prosecutor does not need to prove a specific BAC. The prosecutor doesn’t need to prove you were drunk. The prosecutor doesn’t need to prove you drove in an out of control manner. The DA must prove that you consumed alcohol and that it substantially impaired your normal physical or mental faculties which are needed to safely operate a vehicle.

DUI General Impairment Evidence in PA

DUI General Impairment offenses are proven through a combination of direct and circumstantial evidence, which may include:

• Erratic Driving and Traffic Violations: Although not required, proof of erratic driving or other traffic violations may be used to establish your guilt. Most common forms of erratic driving include auto accidents or near-accidents, repeated swerving and weaving, delayed responses to traffic signals, failing to use turn signals and failing to fully stop at stop signs or red lights. However, technical violations such as having a broken taillight are not indicative of impaired driving.

• Your Admissions: In most cases, your own statements are the most incriminating evidence against you. Any statements you made about the type and quantity of alcohol you drank or drugs that you used can be used against you unless those statements were obtained in violation of your constitutional rights.

• Signs of Intoxication: Police officers receive training on the detection of impaired drivers due to drugs and alcohol, and are trained to look for general signs of intoxication, such as an odor of alcoholic beverages, bloodshot and glassy eyes, slurred speech, difficulty answering questions, difficulty with standing, exiting a vehicle or swaying, and other signs showing impaired coordination.

• Standardized Field Sobriety Tests: Police officers generally attempt to administer Standardized Field Sobriety Tests, which include the Horizontal Gaze Nystagmus (i.e. following pen with your eyes), Walk and Turn and One Leg Stand. During these tests, officers look for certain clues of impairment in your performance. Depending upon the number of impairment clues present in any or all of the tests, research has shown that there is a 65-77% chance that your BAC will exceed a .10%.

• Preliminary Breath Testing (PBT): The purpose of the preliminary breath test is to allow an officer to determine that alcohol is the chemical basis of impairment. The test is typically used to establish probable cause to arrest, and the actual result cannot be offered into evidence against you at trial.

• Refusal of Chemical Testing as “Consciousness of Guilt” Evidence: The prosecutor in your case may attempt to argue that you refused to take a blood or breath test because you knew you were guilty of DUI. This is what is referred to as “Consciousness of Guilt” evidence. Based upon recent case law developments, your attorney may be able to prevent the DA from arguing this point to a jury or to a judge in a non-jury trial.

• Drug Recognition Experts: In drug related DUI cases, a Drug Recognition Expert may conduct a 12-step analysis to determine if you were impaired by illegal or prescription drugs.

What should I do next if I’m charged with a DUI General Impairment Offense in Pittsburgh, PA?

As is clear from the law, the prosecution does not need evidence of a specific BAC or erratic driving to prove this charge. Most DUI General Impairment cases are fact-specific, and require a careful and thorough factual analysis by a skilled Pennsylvania DUI defense attorney. For a free consultation, please contact our office today at 412-447-5580.

Joint Criminal Defense Representation: Can a criminal defense attorney represent two co-defendants in Pennsylvania?

CAN ONE CRIMINAL DEFENSE ATTORNEY REPRESENT TWO PEOPLE CHARGED WITH THE SAME CRIMES?

If you have found our website, you are likely searching for an answer on whether or not a criminal defense attorney can represent two co-defendants in a criminal case. Or in other words, can two individuals who are accused of committing the same crimes or are involved in the same incident be represented by one lawyer? The Zuckerman Law Firm LLC has represented individuals charged in connection with the same incident in Western Pennsylvania, and this decision has been made with careful consideration of the facts and issues.

Is there a conflict of interest associated with joint representation? Can this conflict of interest be waived?

The simple answer is that in most cases, a conflict of interest will exist. A conflict of interest may arise when an attorney represents two parties who are charged as co-defendants (both accused of committing the same crime) or cross-complainants (two individuals accusing one another of crimes, typically in domestic assault cases).

The Rules of Professional Conduct state generally that an attorney should not represent a client if by representing one client, the other client would be negatively impacted. A clearcut example is a scenario where Client A and Client B are in a vehicle where drugs are found, where Client A blames Client B for the drugs, and Client B blames Client A for the drugs. In this scenario, it is impossible to represent one client without harming the other client’s interests.

However, some conflicts of interests can be waived under the Rules of Professional Conduct if the lawyer believes he can provide competent and diligent representation to each client, representation is legal, representation doesn’t involve asserting a claim by one client against another client, and each client gives informed consent.

Examples where joint representation was provided by the Zuckerman Law Firm

Our firm has jointly represented clients charged in connection with the same incident. Generally speaking, our firm has done so for preliminary hearings and traffic cases when clients are not accusing one another of wrongdoing, the clients have similar defenses or arguments to be presented in court, or other circumstances make it likely that the case will not proceed to a full hearing or trial in the future. Here are some real-life case examples where our firm accepted joint representation:

• Case 1: Husband and wife charged with Simple Assault on one another, where both parties are refusing to testify under the 5th Amendment, and there is no independent evidence to prove the charges against one another without their testimony. Charges were dismissed for insufficient evidence against both parties.

• Case 2: Boyfriend and girlfriend were accused of assaulting a third party. Both parties asserted that Client 1 had no role in the altercation, and Client 2 acted solely in self-defense. The firm represented both parties at a preliminary hearing, and the parties obtained separate legal counsel for trial. Both parties were found not guilty at trial.

• Case 3: Boyfriend was charged with a DUI and girlfriend was charged with marijuana possession. Girlfriend told police the marijuana was hers, and the boyfriend was not charged with it. As a result, the clients were not blaming one another for the narcotics, so joint representation was appropriate. Girlfriend’s charges were withdrawn by agreement, and boyfriend entered ARD on DUI charges.

• Case 4: Boyfriend and girlfriend charged with possession of drugs and paraphernalia found within the home. Both parties made admissions that the items found therein belonged to the both of them. As a result, the parties were not blaming one another. One case pending, other case resolved with plea to summary disorderly conduct.

• Case 5: Father and son accused of stealing equipment they believed was abandoned. Both parties acknowledged taking the items, unaware that they belonged to someone else. As a result, both parties had consistent defenses, making joint representation possible. Both parties received ARD for the case.

• Case 5: Husband and wife were accused of a Racing on Highways traffic offense. Both parties had discussed the matter fully before contacting the firm, denied having been involved in a racing incident, and were asserting the same defenses. The firm jointly represented the couple, obtaining not guilty verdicts for the racing offenses.

Here are some real-life examples where our firm rejected joint representation:

• Case 1: Person A was accused of attempting to activate stolen cell phones at a retail location, and Person B was waiting behind in a vehicle. Given the likelihood that Person B would blame everything on Person A, joint representation was rejected.

• Case 2: Boyfriend and girlfriend were charged with assaulting one another. A third-party witnessed the acts committed by each individual. Cross examination of this third-party witness could have benefitted one client and hurt the other. As a result, joint representation was rejected.

The decision on whether or not to accept joint representation is made after a careful consideration of the facts, defenses and related issues.

What are the benefits and downsides to joint representation?

Typically, a reduction in cost is the biggest benefit, as co-defendants may typically pay less to have one lawyer attend a hearing rather than hiring separate lawyers. Furthermore, in cases where co-defendants are not blaming one another and are seeking similar outcomes, joint representation may be appropriate.

However, there are significant downsides to joint representation. With standard representation, information provided by one client to an attorney is kept confidential. With joint representation, information provided by one client may be shared with the other client, and vice versa, which may be detrimental. Furthermore, with cases that proceed past the preliminary hearing phase of prosecution, attorneys will typically not represent two parties at trial, leading one party to have to change lawyers midway through the case.

I’d like to seek a consultation for joint representation. What should I do?

First, our office recommends that only one individual contact the Zuckerman Law Firm LLC at 412-447-5580 for a free consultation. This individual should be sure to contact the firm in a private setting where nobody can overhear the conversation, including the other party involved.

There is a reason we do not recommend a joint consultation amongst co-defendants. First, the attorney-client privilege protects communications made between an individual and his attorney only. If another party is privy to the conversation, the statements made during the consultation may not be privileged, and may be used against you in court.

Second, the attorney needs to properly determine whether there is a conflict of interest, and whether or not it can be waived. If the attorney determines that the conflict cannot be waived, it is important that they have only heard one party’s version of events. If the attorney cannot waive the conflict, and has heard both parties speak on the matter, it might prohibit the attorney from representing anyone on the case. As a result, it’s recommended that the lawyer speak with one party first and then make a decision on whether or not to proceed with individual or joint representation.

If you and a friend or loved one are seeking joint criminal defense representation, please contact the Zuckerman Law Firm at 412-447-5580. If joint representation makes sense, we can have the parties sign paperwork to proceed forward. In cases where joint representation would be unethical, our firm can refer one party to another qualified criminal defense attorney to ensure that everyone involved receives the proper representation they deserve. Our firm strives to make the right ethical decision in each scenario.

Increased Penalties for DUI and Suspended License Violations Likely Under Senate Bill 961

In April of 2018, the PA State Senate voted 45-4 to approve Senate Bill 961, which would change the PA Motor Vehicle Code under Title 75 to increase penalties for DUI offenders, and those who drive on suspended licenses. Although this bill is still awaiting approval in the House, it is strongly anticipated that it will pass and be signed into law.  This article is designed to highlight some of the differences in penalties between current Pennsylvania law and the law if SB 961 is approved.

Driving on a DUI Suspended or Revoked License

The biggest impact of this law will be on the treatment of those who drive on suspended licenses. Currently, a person who drives on a DUI suspended license who is not a habitual offender faces a summary offense punishable with a mandatory minimum sentence of 60 days of incarceration and a $500 fine, regardless of the number of prior convictions.

Since the DUI Suspended License cases are filed as summary offenses, typically District Attorneys offices are not involved in proceedings until the Summary Appeals phase, which allows significant latitude to negotiate pleas before the Magisterial District Courts. That will soon change, as the following modifications would apply: 

• Second Conviction for 75 Pa.C.S. 1543(b): Grading remains a summary offense carrying a mandatory 90 day jail sentence and a $1000 fine. This change increases the mandatory minimum sentence by 30 days and adds $500 to the total fine.  
• Third or Subsequent Conviction for 75 Pa.C.S. 1543(b): Increases the grading to a 3rd Degree Misdemeanor with a mandatory minimum jail sentence of 6 months in jail and a mandatory $2,500 fine. This modification turns the violation into a criminal matter, increases the mandatory minimum sentence by 4 months, and the mandatory fine by $2,000. 

DUI Penalties

The current DUI Penalties can be found here. Under current Pennsylvania Law, the highest graded offense that an offender will face is a 1st Degree Misdemeanor punishable by a maximum sentence of 5 years. Under SB 961, an offender will be charged with a 3rd Degree Felony punishable by a maximum sentence of 7 years if: 

• It is the offender's 4th DUI Offense; 
• It is the offender's 3rd DUI Offense if charged with a Highest Tier DUI for Drugs, having a BAC exceeding a .16%, refusing a breath test, or refusing a blood draw if requested pursuant to a warrant, court order, or other constitutional basis; or
• The offender has a prior Homicide by Vehicle While DUI conviction. 

It does not appear that SB 961 impacts the mandatory minimum jail sentences applicable to 3rd and 4th offenses, but merely modifies the grading from an M1 to an F3. 

Homicide by Vehicle while DUI and Non-DUI

Current law treats a Homicide by Vehicle While DUI offense as a 2nd Degree Felony with a mandatory minimum prison sentence of 3 years. Under SB 961, for those with one prior DUI (includes convictions, acceptance of ARD, acceptance of a consent decree, or juvenile adjudication), the grading of the offense will be enhanced to a 1st Degree Felony with a mandatory minimum prison sentence of 5 years. If the offender had two or more prior DUI offenses (includes convictions, acceptance of ARD, acceptance of a consent decree, or juvenile adjudication), the offender faces a mandatory minimum sentence of 7 years. 

For a Homicide By Vehicle offense not involving DUI, the court may, but is not required to, sentence an offender who is convicted of HBV and a Driving Without a License under Section 1501 or Driving on a Suspended License under Section 1543 to an additional 5 years of incarceration. The bill also calls for sentencing guideline enhancements when a person operated their vehicle without a license. 

Aggravated Assault by Vehicle While DUI and non-DUI

Whether it's an Aggravated Assault by Vehicle While DUI under Section 3735.1 or an Aggravated Assault by Vehicle under Section 3732.1, the court may, but is not required to, sentence an offender who is also convicted of Driving Without a License under Section 1501 or Driving on a Suspended License under Section 1543 to an additional 2 years of incarceration. The bill also calls for sentencing guideline enhancements when a person operated their vehicle without a license. 

Accident Involving Death or Injury While Not Properly Licensed

Under current law, Section 3742.1 of the Vehicle Code only punishes an individual who is not properly licensed and causes an accident resulting in injury or death to another. If the accident causes serious bodily injury or death, the offense is graded as a 3rd Degree Felony. All other injuries qualify for a 2nd Degree Misdemeanor grading. 

However, SB 961 would modify the law to punish unlicensed drivers who both cause accidents, and those who are involved in accidents through no fault of their own. If a driver who is unlicensed is involved in an accident, and the driver didn't cause the accident, the driver will now be charged with a 3rd Degree Misdemeanor if anyone else involved suffered serious bodily injury, or a 2nd Degree Misdemeanor if anyone died as a result of the accident. Put simply - an unlucky unlicensed driver who is involved in an accident through no fault of their own will now face criminal charges if someone was injured. 

Summary

The media focus on this law deals with the addition of felony DUI charges and enhanced mandatory penalties for Homicide by Vehicle offenders. However, the most significantly impacted segment of society will be those whose licenses are suspended because they cannot afford to pay DUI court costs. These individuals will continue to see their fines and penalties increase substantially if this bill is signed into law. 

Refuse a Warrantless Blood Draw? Highest Tier DUI Penalties May Not Apply

DUI Refusal penalties are some of the harshest penalties under Pennsylvania law. A DUI Refusal charge is a shorthand term for a DUI General Impairment with Refusal offense. In these cases, the Commonwealth must prove that the accused drove, operated or exercised physical control over the movement of a vehicle after imbibing a sufficient amount of alcohol to render the accused incapable of safe driving. To seek the increased DUI penalties for refusing a chemical test, the Commonwealth must also prove that the defendant refused to provide the requested blood or breath sample. 

In addition to the mandatory 12 or 18 month civil license suspensions, Sections 3803 and 3804 of the Pennsylvania Motor Vehicle Code treat DUI Refusals as Highest Tier offenses, the same as if your BAC exceeded a .16%. While a first offense DUI General Impairment offense carries no mandatory jail time, a first offense DUI Refusal carries a 72 hour mandatory minimum jail sentence. A second offense DUI General Impairment is an ungraded misdemeanor which carries a 5 day mandatory minimum and a 6 month maximum sentence. However, a 2nd DUI Refusal increases the grading of the offense from an ungraded misdemeanor to a 1st degree misdemeanor, which carries a 90 day mandatory minimum jail sentence and a maximum sentence of 5 years. 

In the 2016 Birchfield vs. North Dakota decision, the United States Supreme Court held that warrantless blood draws occurring in the absence of exigent circumstances are unconstitutional. After Birchfield, the Pennsylvania Superior Court held that the DUI Refusal penalties and enhanced gradings do not apply to offenders asked to submit to warrantless blood draws where police lack exigent circumstances to request a warrantless blood draw. 

In Commonwealth vs. Mario Giron (155 A.3d 635), police initiated a traffic stop after observing the defendant side swipe a parked vehicle. Upon approaching the vehicle, the officer noted a strong odor of alcohol coming from the vehicle, and that the defendant had red, glassy eyes and slurred speech. Upon exiting the vehicle, the defendant had unsteady footing, and was placed under arrest for DUI. He was asked to submit to a blood draw, and not a breath test, and was read a 2008 version of the DL-26 form, which provides chemical test warnings to the driver. The defendant refused to read or sign the form, and subsequently refused to perform the chemical test. The defendant was found guilty of the M1 DUI General Impairment with Refusal, and was given a 90 day to 5 year jail sentence. 

The Superior Court ultimately upheld the DUI General Impairment conviction, but overturned the DUI Refusal enhancements. Specifically, the Court held that under Birchfield, in the absence of a warrant or exigent circumstances justifying a search, a defendant who refuses to provide a blood sample when requested by police is not subject to the enhanced penalties provided in 75 Pa.C.S.A. §§ 3803-3804. The case was sent back to the trial court so that the defendant could be re-sentenced on the DUI General Impairment (5 day mandatory and 6 month maximum) and not the DUI General Impairment with Refusal (90 day mandatory and 5 year maximum). 

Please note that this ruling is limited to cases where (1) a blood draw was the only form of requested testing (2) the blood draw request was done without a warrant and (3) the blood draw request was done without there being exigent circumstances present. If you refuse a breath test, you will still be subject to the DUI Refusal penalties. This decision also has no impact on the civil license suspensions imposed as a result of refusing chemical testing. 

As always, any person facing a DUI charge should not attempt to defend themselves regardless of any legal research they've conducted over the internet. If you're charged with a DUI in Pennsylvania, contact an attorney immediately. 

Warrant Required to Draw Blood After PA DUI Arrest

BIRCHFIELD DECISION CHANGES PA DUI LAW

On June 23, 2016, the United States Supreme Court ruled that the Fourth Amendment of the US Constitution permits warrantless breath tests incident to lawful arrests for drunk driving but not warrantless blood tests. In the Birchfield v. North Dakota decision, the Supreme Court considered three different cases from North Dakota and Minnesota: 

1. Refusal of Blood Test - Birchfield: After his DUI arrest, Birchfield refused blood testing and was charged with a misdemeanor offense under North Dakota law for refusing a blood test. He entered a conditional guilty plea, later arguing that the 4th Amendment prohibited North Dakota from making a test refusal a crime. 

2. Refusal of Breath Test - Bernard: After his DUI arrest, Bernard was notified by police that refusing a breath test was a crime. After refusing to submit to a breath test, Bernard was charged with a 1st degree misdemeanor under Minnesota law for refusing the test. Bernard argued that warrantless breath tests are impermissible under the 4th Amendment. 

3. Consent to Breath Test Coerced by Threat of Criminal Penalties - Beylund: After his DUI arrest, Beylund consented to a blood draw after being informed that he was required to submit to testing and after being threatened with enhanced criminal penalties by the arresting officer. Beylund argued that his consent to submit to a blood draw was coerced by the officer's threat of enhanced criminal penalties. 

IMPACT ON BREATHALYZER TESTING

In its decision, the Supreme Court held that warrantless breath tests constitute a permissible search incident to the arrest of a DUI suspect. For the search to be permissible, the police must have had probable cause to arrest the particular offender, or in other words, must establish that it is more likely than not that the person arrested committed a DUI. 

In deciding that a warrant was not required, the Supreme Court found that process of obtaining a breath test is a minimal intrusion, as breathing is a natural process, nobody "owns" the air in their lungs, the air sample is not capable of being retained by police, and testing is typically conducted in a private setting. Ultimately, the Supreme Court held that the warrantless breath test of Bernard was lawful, and that Bernard had no right to refuse it. 

IMPACT ON BLOOD TESTING

In focusing on the enhanced intrusion on the person, the Supreme Court ruled that a warrant is required when requesting a blood test after a DUI arrest. Unlike minimally intrusive breath tests, blood is a part of the human body, people don't shed blood like they expel air from their lungs, and a sample can only be extracted only through piercing the skin with a needle. Unlike air samples which cannot be retained, blood samples can be preserved by law enforcement, and information aside from one's BAC can be obtained from the sample. 

As such, the Court held that Birchfield simply refused an unlawful search, and couldn't be punished for this. 

CONSENTING TO A BLOOD TEST? 

When a person provides valid consent to a search, a warrant is not needed. However, a driver may not be deemed to have consented to a blood draw when the officer threatens enhanced criminal penalties, and tells the driver he or she is required to submit to a warrantless blood draw under a state's implied consent law. 

In Beylund's case, the Supreme Court held that North Dakota had to re-evaluate whether or not his consent was valid, as it was based upon the erroneous warning by the police officer that he was required to submit to a warrantless blood draw. The case was remanded to state court to determine whether or not consent was valid in light of the officer's inaccurate explanation. 

LICENSE SUSPENSIONS FOR REFUSING A BLOOD TEST

The suspension of your license is civil penalty imposed by PennDOT, and not a criminal penalty. While some attorneys have challenged license suspensions based upon this decision, it does not appear that this case prevents PennDOT from enforcing license suspensions for a driver's refusal to submit to a blood or breath test. 

CURRENT IMPACT OF BIRCHFIELD ON PA DUI CASES

Unlike North Dakota who made it a separate crime to refuse testing, Pennsylvania does not make a test refusal a separate criminal offense. However, PA does impose enhanced criminal penalties for refusing a blood or breath test. 

In Pennsylvania, the implied consent laws will no longer allow police to draw a person's blood simply because of a DUI related arrest. Police will either need to obtain a warrant, or obtain your valid consent to submit to testing. 

If you are facing a DUI charge and have submitted to or refused a blood draw, you should contact a local DUI defense attorney who practices in your county for further guidance. However, the following changes have occurred recently in many Western Pennsylvania jurisdictions: 

1. Impact on Non-ARD DUI Cases: For non-ARD cases, many prosecutors are withdrawing highest tier (.16% and above BAC), high tier (.10-.159% BAC), and lowest tier (.08-.099% BAC) charges, along with enhanced DUI refusal penalties, when the driver was threatened with enhanced criminal penalties for refusing a blood draw. However, other DA's offices are not withdrawing charges, requiring your lawyer to file an Omnibus Pretrial Motion to seek a dismissal of enhanced DUI charges based upon a refusal or improperly coerced blood draw. 

2. Impact on ARD DUI Cases: In warrantless blood draw and refusal cases, most prosecutors are allowing drivers to enter into the ARD program on general impairment charges, which carries no license suspension. However in some counties, prosecutors are not reducing high and highest tier offenses in connection with ARD offers. Keep in mind that if you have refused testing, you are still facing a 12-month license suspension for refusal, as this is considered a civil penalty. 

3. Continued Prosecution of General Impairment & DUI Accident Cases: Prosecutors will continue to prosecute DUI - General Impairment (lowest tier) and DUI - General Impairment with Accident (high tier) offenses. These charges can be prosecuted without the use of improperly collected BAC evidence, because they simply require proof that you drank alcohol to a degree that rendered you incapable of safe driving. 

4. Police Will Try To Obtain Consent by Changing Test Warnings: District Attorneys' Offices have now advised police officers to revise the implied consent warnings by removing all reference to increased criminal penalties on the DL-26 form. Prosecutors are hoping that by removing the criminal penalty references, that drivers will be unable to argue that their consent to a blood draw was improperly coerced. This legal issue remains undecided.

5. Drug DUI Cases: As there is no breath test for Drug DUI cases, blood will need to be drawn to determine if there is a controlled substance and/or metabolite in your system. Without blood results, police will need to establish that you drove under the influence of a drug or combination of drugs which rendered you incapable of safe driving. In proving this, police may rely upon Drug Recognition Expert testimony, but drivers are infrequently examined by DREs after arrest. Alternatively, prosecutors will have to rely upon the testimony of police officers who lack the expert training of DREs, which may make it easier to earn an acquittal. 

6. Greater Reliance on Breath Tests: Police will either need to work in conjunction with magistrates to expedite the processing of search warrants, or will simply shift to breath testing instead. Breath testing is much more vulnerable to attack at trial than is blood testing. 

To read the Birchfield decision, click on this link. 

Overview of Drug Possession Charges in Pittsburgh, Pennsylvania

Overview of Drug Possession Charges in Pittsburgh, Pennsylvania

Drug possession in Pittsburgh opens the door to numerous charges, fines, and penalties. There are several drug-related charges that you can face in Pennsylvania, and the handling of your case can vary between counties in Western Pennsylvania. Whether you are in possession of drugs or drug paraphernalia, you will need an experienced drug possession attorney in Pittsburgh to help with your case.

What are the types of Drug Possession and Prohibited Acts Charges in Pittsburgh?

There are four major types of drug possession charges in Pittsburgh: Possession of Drug Paraphernalia, Possession of a Controlled Substance, Possession With Intent to Deliver and Possession of a Small Amount of Marijuana.

The type and seriousness of the charges you will face are dependent upon numerous factors, including whether or not there is evidence associated with drug dealing, the type and quantity of the drug recovered, and the presence of materials used to package or ingest drugs.

This is a simple overview on the difference between the various charges. 

Possession of Drug Paraphernalia

Possession of drug paraphernalia is an ungraded misdemeanor punishable by up to 1 year in prison and a fine of up to $2,500. The biggest difference between possession of drug paraphernalia and drug possession is that you will not face a driver’s license suspension. For this reason, a plea or reduction to a drug paraphernalia offense can be preferred over a drug possession offense.

Generally speaking, drug paraphernalia is any item that can be used to store, measure, package or use drugs, which include:

• Needles
• Zip lock bags
• Bongs
• Blunts
• Pipes
• Marijuana Grinders
• Straws
• Digital Scales

Drug paraphernalia also includes devices that are intended for the purpose of planting, harvesting, growing, processing, testing, packing, storing, or injecting drugs. For more information, please visit our Possession of Drug Paraphernalia page.

Possession of a Controlled Substance

Drug possession, otherwise referred to as simple possession, is an ungraded misdemeanor offense when there is no allegation that you were selling or manufacturing drugs. You can be charged with simple drug possession if you are found to be in possession of heroin, cocaine, more than 30 grams of marijuana or 8 grams of hashish, and unprescribed medications.

The penalties for simple drug possession include:

• 1st offense: Maximum fine of up to $5,000 and maximum penalty of 1-year in jail, with a mandatory 6-month driver’s license suspension
• 2nd offense: Maximum fine of up to $25,000 and maximum penalty of 3-years in jail, with a mandatory 1-year license suspension
• 3rd and subsequent offenses: Maximum fine of up to $25,000 and maximum penalty of 3-years in jail, with a mandatory 2-year license suspension

For more information, please visit our Possession of a Controlled Substance overview page.

Possession of a Small Amount of Marijuana

You may find yourself charged with the Possession of a Small Amount of Marijuana if you are found to have possessed 30 grams or less of marijuana. A conviction for the Possession of a Small Amount of Marijuana carries the following penalties:

• 1st Offense: Up to 30 days in jail, mandatory 6-month license suspension and fine of $500, with a permanent criminal record
• 2nd Offense: Up to 30 days in jail, mandatory 1-year license suspension, fine of $500, with a permanent criminal record
• 3rd and Subsequent Offenses: Up to 30 days in jail, mandatory 2-year license suspension, fine of $500, with a permanent criminal record

For more information, please visit our Possession of a Small Amount of Marijuana overview page.

Drug Dealing, Trafficking & Possession with Intent to Deliver

Drug dealing, trafficking, and drug possession with intent to deliver are serious felonies and one of the most frequently charged drug crimes. Fighting a case of this nature without a drug possession attorney in Pittsburgh can result in paying hefty fines and jail time. If you are facing any of these charges, your penalties will vary due to the type of drug(s) in your possession along with a variety of other factors.

Maximum penalties for possession with intent to deliver charges can range from 3-15 years in prison and fines ranging from $10,000 to $250,000.

For more information relating to drug dealing, trafficking, and possession with intent to deliver charges, visit our Possession With Intent to Deliver overview page.

Drug Possession Attorneys in Pittsburgh: Contact the Zuckerman Law Firm Today

The truth is that you simply can’t afford to represent yourself when facing serious drug charges. As a former drug crimes prosecutor and experienced drug possession defense lawyer in Pittsburgh, the Zuckerman Law Firm can help defend your case. Contact us today for your free consultation at 412-447-5580. 

PA's New Expungement & Record Sealing Law

PA'S NEW EXPUNGEMENT LAW PERMITS RECORD SEALING OF 2ND DEGREE, 3RD DEGREE AND UNGRADED MISDEMEANORS

Last year, a 67-year old gentleman called our office seeking to expunge a decades-old misdemeanor marijuana possession conviction. We informed him that he could pursue a pardon, or wait until he reached the age of 70 before he could pursue an expungement.

Fortunately, in January of 2016, the legislature passed Senate Bill 166, which will ease the burden on certain types of former offenders who have lived a law-abiding lifestyle since their prosecution for certain types of misdemeanor offenses.

ORDER OF LIMITED ACCESS

By passing Senate Bill 166, the Pennsylvania legislature created Section 9122.1 of the Pennsylvania Crimes Code, which allows for an Order of Limited Access to be issued by the Court of Common Pleas under limited circumstances.

Unlike a standard expungement, an Order of Limited Access does not lead to the destruction of your criminal record. This order simply directs the record repositories to not disclose criminal record information to others except for criminal justice agencies and certain government agencies. However, certain employers and educational institutions will be prevented from obtaining your criminal record information.

ELIGIBILITY FOR ORDER OF LIMITED ACCESS

A person is eligible for an Order for Limited Access if:

• The offense is a 2nd-Degree Misdemeanor, 3rd-Degree Misdemeanor or an ungraded Misdemeanor;
• The offense carries a maximum possible sentence of 2 years or less;
• The offense is non-violent;
• The person remained free from arrest for 10 years after their conviction or release from jail or probationary supervision. For example, if a person was convicted in 2000 for M2 Theft, and successfully completed a 2-year probationary period, the person must remain free from arrest from 2002-2012 before becoming eligible.

NON-ELIGIBILITY FOR ORDER OF LIMITED ACCESS

You are not eligible to obtain an order of limited access if:

• The offense carries a maximum possible sentence of over 2 years in jail (i.e. second drug possession conviction);
• The offense is a 1st-Degree Misdemeanor or Felony;
• The person has been convicted of 4 or more offenses punishable by imprisonment of 1 or more years in jail;
• The offense is an M2 Simple Assault;
• The offense is Sexual Intercourse with an Animal;
• The offense is Impersonating a Public Servant;
• The offense is Victim or Witness Intimidation, or Retaliation Against a Victim or Witness;
• The offense is Intimidation, Retaliation or Obstruction in a child abuse case; or
• The offense requires the person to register as a sex offender.

HOW TO OBTAIN AN ORDER FOR LIMITED ACCESS

When the legislature passed Senate Bill 166 on February 16, 2016, a 270-day waiting period was incorporated into the bill. This act will not become effective until November 12, 2016.

Eligible persons must first file a Petition for Order of Limited Access with the Clerk of Courts in the county where the charge originated. The Clerk of Courts will charge a filing fee of $132.00.

Within 10 days from the date the petition is filed, the Courts must notify the local District Attorney's office about the petition. The DA's office then has 30 days from the date they received notice to file objections to the petition. If no objection is filed, the Court may grant the petition without scheduling a hearing if the petition is correct and the person is eligible. If objections are filed, the Court may schedule a hearing to determine whether or not the petition should be granted.

The Zuckerman Law Firm prepares and files Expungement Petitions for clients throughout Western Pennsylvania, and will begin assisting those interested in pursuing an Order for Limited Access. For a free consultation, call 412-447-5580 today.

Why Representing Yourself on a Traffic Ticket in Pittsburgh Can be a Mistake

WHY REPRESENTING YOURSELF IN PITTSBURGH TRAFFIC COURTS MAY YIELD POOR RESULTS

If you found this article during an internet search, you're probably thinking about representing yourself in traffic court. You've probably searched AVVO and found a few attorney websites with information on your traffic charges. Maybe you've called a few traffic ticket attorneys, trying to get as much free information you can.

Nobody wants to hire a lawyer. But going in blind can be your undoing.

5 MISTAKES MADE BY A SELF-REPRESENTED PERSON IN A WESTERN PA TRAFFIC COURT

We recently had occasion to watch a young man represent himself during his summary trial. This unrepresented individual had existing points on his license and was clocked traveling at 83mph in a 45mph zone. He was facing 5 points, a mandatory 15-day license suspension and possible penalties for exceeding 6 points or 11 points.

This unrepresented individual made nearly every possible mistake that you can make in traffic court, which included:

• Unfamiliar With Penalties: He had to ask the Judge what the penalties were for his citations.
• Arguing With the Officer: While you may disagree with the speed timing results, you will never win an argument with a police officer. However, when given the chance to discuss a resolution of the citation, this defendant proceeded to argue with the police officer that he clocked the wrong person. This made the police officer visibly angry and unwilling to negotiate a plea with a less severe result.
• Disrespectful: He stood before the judge with his hands in his pockets, and smirked during the entire hearing. The judge clearly did not appreciate his demeanor, and it showed in the verdict.
• Poor Cross-Examination: The defendant wanted to establish that the officer clocked the wrong vehicle, but didn't ask the proper questions. He also failed to object to the admission of the speed results, which were not properly authenticated.
• Incriminating Admissions: The defendant admitted under oath that he was speeding at a rate slightly lower than his clocked speed, but claimed his stop was unfair since everyone else around him was also speeding.

This case didn't end well, as he was convicted of the speeding offense. By failing to hire a qualified traffic ticket attorney, this person will now have to file a summary appeal and a statutory appeal to challenge the license suspension. This will come at an additional cost of $233.50 in excess of the court costs and fines associated with the ticket.

HOW A PITTSBURGH TRAFFIC TICKET ATTORNEY CAN HELP

A qualified Pittsburgh traffic ticket defense lawyer would not make the mistakes listed above. There are many possible advantages that apply when you hire a traffic ticket lawyer, which include:

• Familiarity With the Traffic Court System: A Pittsburgh traffic ticket attorney practices frequently in traffic courts throughout the area. Experience negotiating case resolutions with individual police officers and judges can play a significant role in obtaining a favorable outcome.
• Access to the Police Officer Before Your Hearing: In many traffic courts, a self-represented person will not be given the chance to discuss a resolution of the citation with the citing officer before their case is called. However, an attorney may be given permission to access the courtroom prior to the hearing, and discuss a resolution with the officer in advance.
• Knowledge of the Penalties and Alternative Offenses: A Pittsburgh traffic ticket attorney understands the penalties associated with your individual offense, and can work to negotiate a plea to an alternative offense that carries fewer penalties.
• Presenting a Compelling Argument for Leniency: A qualified Pittsburgh traffic ticket attorney knows how to present your background in the most positive manner possible.
• Authentication of Speed Timing Results: In the cases that cannot be resolved, a Pittsburgh traffic ticket attorney can challenge the admissibility of your speed timing results if not properly authenticated.
• Cross-Examination: A Pittsburgh traffic ticket attorney knows how to cross examine a well-trained police officer.
• Familiarity with Careless Driving and Reckless Driving Case Law in Auto Accident Cases: If you are involved in a reportable accident, many departments have policies requiring the officer to cite you with these offenses. There are previously decided Pennsylvania cases which may support a dismissal of your charges.

Before representing yourself in traffic court, we encourage you to call the Zuckerman Law Firm at 412-447-5580. We provide a  free consultation and work to offer fair rates for representation in the Pittsburgh area.

5 Reasons Why You Need a Criminal Defense Lawyer in Pittsburgh

Getting into trouble with the law can result in serious consequences, including hefty fines, jail time, and even prison sentences. If you’re tangled up in legal trouble from committing a criminal act, you’ll need to find a reliable criminal defense lawyer in Pittsburgh. Not only is your criminal record riding on the line, but also you’ll need a professional to stand beside you and ensure that you’re treated fairly under the law. Think twice if you’re attempting to represent yourself in court—these are the 5 reasons why you need a criminal defense lawyer in Pittsburgh.

1. Criminal Defense Lawyers Can Reduce Penalties With Plea Bargains Getting a reduced sentence for your crime can be a tough road, but it’s much more attainable with a criminal defense lawyer in Pittsburgh. This means that you can potentially spend less money on fines or less time in jail. The better news is that, beyond reducing your sentence, a Pittsburgh criminal defense lawyer may be able to eliminate sentencing altogether by negotiating a withdrawal or reduction of your charges.

2. Knowledge of Complicated and Lesser-Known Laws And Rules Representing yourself in a case means that the courts will hold you to the same standard as that of an attorney. All of the research and case preparation is on you. This puts you in the situation of looking over laws and regulations that you would likely never find on your own. This also means having to study, understand and apply complicated rules regarding procedure and evidence that a seasoned lawyer knows well.

Not to mention, there’s a big difference between reading the law and practicing the law—and you’ll find this out the hard way if you seek to represent yourself in court.

3. Criminal Defense Lawyers Can Easily Gather Evidence And Statements Asking for witness statements after being involved in a crime puts you in an awkward situation. Understandably, a lot of witnesses will not be interested in giving statements directly to a suspected criminal. However, a criminal defense lawyer in Pittsburgh can collect statements and evidence quickly and easily. Specifically, a former prosecutor who has experience working with witnesses on both sides of the law may have an advantage in this process.

If warranted, a criminal defense lawyer in Pittsburgh can hire a private investigator to help you build a defense to your charges.

4. Lay The Ground Work for Your Trial Defense An experienced Pittsburgh criminal defense lawyer knows when to negotiate and when to fight. Giving up your rights and getting nothing in return is a recipe for disaster.

With cases that are destined for trial, it is important to start building your defense as early as possible. A Pittsburgh criminal defense lawyer can challenge violations of your rights, attack witness testimony through cross-examination, and make argument from a position of strength.

5. Offer Emotional Support (And a Reality Check) Going through the process of criminal prosecution isn’t easy—defendants can become depressed and feel as if there’s no hope for their future. A criminal defense lawyer can offer support while keeping you grounded, and prepare you for what lies on the road ahead.

Are You Looking For a Criminal Defense Lawyer in Pittsburgh? It’s evident that you need a Pittsburgh criminal defense lawyer to help you with your case—but you don’t want to choose just any criminal defense lawyer. In order to achieve the best outcome possible for your situation, you’ll need a criminal defense lawyer who knows the ropes and will fight for the best possible outcome.

Contact the Zuckerman Law Firm to speak with one of the best criminal defense lawyers in Allegheny County. Our client-approved firm can assist you with navigating your way through the court system and help you get your life back on track. Call today at 412-447-5580.

PA's Drug Overdose Immunity Law

PA'S DRUG OVERDOSE RESPONSE IMMUNITY LAW

Prior to the enactment of Senate Bill 1164, a person who suffered from a drug overdose and those who reported the overdose could be charged with numerous possessory crimes. For example, if a person called 911 to report that a friend suffered from a heroin overdose in their home, and stamp bags of heroin were recovered, both persons would typically be charged with Possession of a Controlled Substance and Possession of Drug Paraphernalia.

If you have suffered from a drug overdose, or called for help on behalf of someone suffering from a drug overdose, you will be immune from criminal prosecution in many instances. Senate Bill 1164 amended Pennsylvania's Controlled Substance, Drug, Device and Cosmetic Act by granting immunity to an overdosing person and those who render aid under limited circumstances. The purpose of the bill was to encourage others to report drug related overdoses without fear of prosecution.

WHAT COUNTS AS A QUALIFYING DRUG OVERDOSE EVENT?

Under Section 13.7, a Drug Overdose Event is defined as, "an acute medical condition, including, but not limited to, severe physical illness, coma, mania, hysteria or death, which is the result of consumption or use of one or more controlled substances causing an adverse reaction."

In determining whether an event qualifies as a drug overdose, the courts will utilize a "prudent layperson" standard. Under this standard, an event is a drug overdose if a, "prudent layperson, possessing an average knowledge of medicine and health, would reasonably believe that the condition is in fact a drug overdose and requires immediate medical attention."

IMMUNITY FOR THE REPORTING PERSON

Under the newly enacted Section 13.7 of the PA Controlled Substances Act, a person cannot be charged and prosecuted for certain drug crimes, as well as probation and parole violations, if:

1. Police only became aware of the drug offense because the reporting person transported the overdosing person to a healthcare facility, campus police or law enforcement agency; OR

2. The reporting person has a reasonable, good faith belief that another is suffering from an overdose, and

• Reports the overdose to 911, a member of law enforcement, a member of campus police, or emergency services personnel;
• Reports his or her name and location;
• Cooperates with members of law enforcement and medical personnel; and
• Remains with the overdosing person until members of law enforcement or medical personnel arrive.

IMMUNITY FOR THE PERSON WHO OVERDOSED

Under Section 13.7(c), "persons experiencing drug overdose events may not be charged and shall be immune from prosecution as provided in subsection (b) if a person who transported or reported and remained with them may not be charged and is entitled to immunity under this section."

CRIMES WITH IMMUNITY

If a person complies with the requirements listed above, police do not obtain information about the crime prior to the emergency, or police do not obtain information about the crime independently and unrelated to the emergency, he or she will be immune from prosecution for the following offenses:

• Simple Possession: knowingly or intentionally possessing a controlled or counterfeit substance
• Purchasing From Unauthorized Person: Intentionally purchasing or knowingly receiving in commerce a controlled substance, drug or device from a person not authorized to dispense or sell such a drug or device
• Small Amount of Marijuana: Possessing a small amount of marijuana for personal use, or possessing or distributing a small amount of marijuana without intent to sell it
• Drug Paraphernalia: Using drug paraphernalia, or possessing paraphernalia with intent to use it
• Delivering, Manufacturing or Possessing Drug Paraphernalia With Intent to Deliver
• Possession of Anabolic Steroids: if unregistered person possesses more than 30 doses of a dispensed prescription or more than 3 trade packages of anabolic steroids.

CRIMES WITHOUT IMMUNITY

An overdosing person or reporting person may still face prosecution for the following crimes:

• Prior or Independent Evidence of "Immunity Crimes": If police obtain information about one of the immunity crimes before the overdose, or in a manner independent of the reported overdose
• All "Non-Immunity" Crimes: May include tampering with physical evidence for those who attempt to discard evidence
• Delivery or Distribution of a Controlled Substance: (i.e. drug dealing)
• Drug-Induced Homicide or Drug Delivery Resulting in Death

PROSECUTING THIRD PARTIES

Evidence recovered during a reported overdose may be used to prosecute a third party. For example, if heroin is found as a result of a reported overdose, the reporting and overdosing person may not be prosecuted, but the evidence can be used to prosecute their drug dealer.

WHAT TO DO IF YOU ARE BEING INVESTIGATED OR CHARGED AFTER SUFFERING FROM OR REPORTING AN OVERDOSE?

If a friend or loved one is suffering from an overdose, you should immediately call 911 and report the overdose to medical personnel. Remain on scene, provide your name, address and location, and notify police and medical personnel what quantity and type of drugs the overdosing person took.

The questions asked of you should be those necessary to understand and avert the medical emergency. However, members of law enforcement may try to convert this inquiry into a criminal investigation.

If police begin asking you questions about the source of the drugs or whether or not you gave the drugs to the overdosing person, you should remain silent and ask to speak to a lawyer. Statements made regarding drug sharing or delivery can be used to prosecute you for serious drug offenses. These questions aren't designed to avert a medical emergency, but to hold someone criminally responsible.

Likewise, if members of law enforcement contact you after you have been released from the scene of the overdose, you should remain silent and ask to speak to a lawyer.

If you are the subject of a criminal investigation, or have been charged with a crime in connection with an overdose event, call the Zuckerman Law Firm today at 412-447-5580.

Client Found Not Guilty of Simple Assault and Victim Intimidation Charges

A ZLF client was falsely accused of simple assault and the intimidation of a victim in Allegheny County, facing a maximum sentence of up to 4 years in prison, along with a permanent criminal record. We are pleased to report that he and his co-defendant were found not-guilty after a 1 day non-jury trial. The underlying dispute in this case stemmed from a custody dispute between two parents, to which members of the extended family became involved. At both the preliminary hearing and at trial, the alleged victim testified that she was punched, kicked and beaten for 5-minutes by the co-defendants and a juvenile, causing her to sustain a broken wrist, back injuries, neck injuries, and tearing of the shoulders.

ZLF was able to obtain copies of the alleged victim's medical records from the incident date, which did not support the majority of her injury claims. During cross examination, the lead officer on the case confirmed that the victim did not report any wrist, back, neck or shoulder injuries and declined medical treatment on scene.

On the preliminary hearing date, the alleged victim was seeking reimbursement for thousands of dollars worth of medical bills. Medical billing statements offered into evidence established that the bills were paid in full by her health insurance before the preliminary hearing.

A relative of the victim claimed to have witnessed the assault. We were able to obtain a copy of a certified PFA signed by this witness, where he noted that the victim's injuries were caused by the mother of his child, and not the co-defendants. Testimony also established his racial bias against our client, as he directed a racial slur towards the client during a previous court appearance.

Defense witnesses testified that the victim approached a co-defendant and threatened to kill her, which prompted her to act alone in self-defense. Further testimony established that our client and the juvenile co-defendant did not attack the alleged victim.

At the close of the Commonwealth's case, the Court granted the defense's motion for judgment of acquittal as to the intimidation of a victim offense, and entered a not guilty verdict on the simple assault count at the conclusion of the defense's case.

Debunking Myths About Fighting Traffic Tickets

DEBUNKING MYTHS ABOUT FIGHTING TRAFFIC TICKETS IN PITTSBURGH AND WESTERN PENNSYLVANIA

Over the last few weeks, our firm has received numerous phone calls from those who mailed in guilty pleas on their citations, only to discover that points and license suspensions were imposed. We were able to help some of the callers file summary appeals and administrative license appeals. Others were out of luck, and are stuck with the consequences of their decisions.

This blog post is designed to tell you one thing: If you are facing points, a license suspension or jail time on a traffic ticket, you should never mail in the citation with a guilty plea.

We also want to debunk some of the myths and fears our clients have about fighting traffic tickets.

"I know I was speeding, so I thought pleading guilty was the right thing to do."

If you're buying a car, would you mail in a check to a car dealership for the highest possible sticker price? Of course not. You'd go to the dealership, speak to a salesman, and negotiate for a better price.

When you plead guilty by mailing in your citation and payment to the magistrate, you are automatically paying the highest possible "sticker price" for your traffic violation: maximum fines, points and mandatory license suspensions for applicable offenses.

There is nothing honorable about jeopardizing your ability to earn a living and overall freedom of travel by putting your driving privileges at risk. You may be able to accept responsibility for a driving infraction without pleading guilty to an offense that will tack points and suspensions onto your driving record.

"If I fight the ticket, I'm going to make the officer or the judge mad, and things might get worse." 

This couldn't be farther from the truth. Most police officers receive overtime pay for "court time," giving them a financial incentive to appear in court. Likewise, the role of the magistrate is to preside over traffic ticket cases.

Assuming your traffic offense carries no jail time, the worst thing that will happen to you is that you will be convicted of the offense and notified of your right to file an appeal.

If you are treated with disrespect by the police officer or the magistrate, don't take it personally.

"I'm not entirely sure what the penalties are for my ticket."

For information on traffic ticket penalties and PennDOT's points system, click on these links. We also provide free consultations on traffic ticket cases.

"I thought that the court had to tell me if I was going to face points or a license suspension."

The Magisterial District Court is under no obligation to provide you with legal advice, and will not tell you if you're facing points or a license suspension on your citation.

"I don't want to take off work to fight a ticket."

Unlike other states, Pennsylvania does not allow an attorney to appear in place of a defendant. However, it is possible for your case to be scheduled  either early in the morning or in the afternoon, ensuring that you won't miss more than a 1/2 day of work.

Most traffic ticket hearings are short, and court sessions typically range from 30 minutes to 2 hours. Many times, the magistrate is willing to accommodate attorneys by calling their cases first. This is another advantage to hiring a lawyer.

You're better off burning a 1/2 vacation or sick day than putting your driving privileges at risk.

"I'll just plead guilty now and if something bad happens, a lawyer will be able to help me out, or PennDOT will cut me a break."

Any experienced traffic ticket lawyer will tell you that negotiating with PennDOT is not a pleasant or productive experience. PennDOT will not cut you a break because you're a good person, and need your driver's license to get to and from work.

Your best bet is always to get a lawyer involved as early on in the process. If you don't have a lawyer, enter a not guilty plea and work on finding representation later.

If you've plead guilty to a traffic offense, you have 30 days to file a summary appeal, or your guilty plea will stick. The lone exception is if you file a Petition to File a Summary Appeal Nunc Pro Tunc with the Court of Common Pleas, and it is granted. This petition will only be granted in the rare instances where fraud, a breakdown in the judicial system, or the ineffective assistance of counsel caused a delay in your ability to file on time.

"I don't need a lawyer at the magistrate's office, as I can just file a summary appeal if things go bad."

As discussed above, traffic ticket convictions can be appealed to the Court of Common Pleas for a new trial. However, there are a few things you should keep in mind.

First, lawyers will often quote higher rates to handle summary appeals than they will for traffic cases at the magistrate's office. Summary appeals court sessions are typically of longer duration, and require an appearance at the county courthouse.

Second, you may be afforded more flexibility to negotiate a plea at the magistrate's office than you will at summary appeals court.

At the magistrate's office, the police officer who cited you typically handles the negotiations. When a summary appeal is filed, an Assistant District Attorney typically handles the prosecution of your case. If the ADA is unreasonable, or the DA's office has a certain policy in place regarding your violation, you may not get the offer you could have at the magistrate's office.

"I can't afford to hire a lawyer to fight my ticket."

Depending on who you talk to, you're right. Many criminal defense attorneys don't like taking traffic cases. They don't pay enough, they're not interesting enough, and it's simply a waste of their time to provide you with a consultation. Rather than decline the case, they'll provide you with a costly quote to handle your traffic case, leading you to believe that all lawyers are too expensive.

The Zuckerman Law Firm is a dedicated traffic ticket defense firm. We take pride in helping good, hardworking people out of bad situations. We offer rates for summary trials as low as $399, and work with many of our clients on payment plans.

For a free consultation, call us today at 412-447-5580. We will tell you if you're facing points, jail time or a license suspension, and will strive to offer a reasonable rate for representation.

Told You're Free to Go? Reasonable Suspicion Needed to Question You a 2nd Time

If police pull you over and tell you you're free to leave, they need reasonable suspicion to conduct a second round of questioning. In Commonwealth v. Nguyen, a trooper initiated a traffic stop on the defendant for speeding. The defendant refused to answer any questions but eventually provided his license and registration. When his license was run, the trooper learned that the defendant had prior drug arrests. He then issued a warning to the defendant for speeding, returned all information and told him he was free to go. However, as they walked to their respective vehicles, the trooper turned and re-engaged the driver by asking if he could question him further. The trooper then asked if he could search the car and its contents and the driver consented.

The defendant was asked to step out of the car and agreed to be frisked for safety purposes. During the frisk, the trooper felt a soft package in his front pocket that he believed contained bagged pills. When he asked what it was, appellant said it was OxyContin. During the search incident to arrest, troopers recovered 3 bundles of cash, 4 bags of cocaine and 4 jars of cocaine. The defendant argued that this frisk was not supported by reasonable suspicion.

The Superior Court held that once a police officer concludes the business of a traffic stop, but then re-engages the driver for questioning, that this constitutes a second, separate detention and must be supported by reasonable suspicion.

The information the trooper had about the defendant's prior drug arrests could not support a finding of reasonable suspicion, as the officer was aware of these facts before telling the driver he was free to leave. The court further held that the defendant's actions of being overly-apologetic, nervous and talkative were insufficient to establish reasonable suspicion to support the second round of questioning.

Avoiding Errors on Firearms Purchase and Carry Permit Applications That Can Lead to Your Arrest

HOW INACCURATE ANSWERS ON A FIREARMS PURCHASE OR CARRY PERMIT APPLICATION CAN LEAD TO YOUR ARREST

It's common for us to sign applications and contracts without reviewing the fine print. Whether it's applying to college, purchasing a home, or applying for a credit card, we answer questions and sign documents without fully reviewing each and every detail.

If you apply for a concealed carry permit or complete an application to purchase a firearm, you cannot afford to answer questions without being 100% sure of the answer. Any inaccurate responses made on these forms can lead to you being charged with serious felony and misdemeanor charges, even if you have no prior criminal record and had no intent to lie on the application.

HOW THE APPLICATIONS PROCESS WORKS

When attempting to purchase a firearm, you will be required to complete ATF Form 4473 and PA form SP4-113. When applying for a license to carry firearms, PA Form SP4-127 is utilized.

The forms include a series of yes and no questions regarding your criminal history (including domestic violence history), mental health history, drug and alcohol use, and military discharge status. The applicant must sign a certification, subjecting himself or herself to the penalties for Unsworn Falsification to Authorities, and other penalties under the Uniform Firearms Act.

Upon completion, a Pennsylvania Instant Check System (PICS) inquiry is initiated with the Pennsylvania State Police, where mental health and criminal records will be reviewed. Typically, 60% of purchasers are approved in minutes. If there's an issue regarding your eligibility, the file may be held for research purposes for up to 15 days.

If you are denied eligibility, you have thirty (30) days to complete a PICS Challenge form. Your failure to complete the PICS challenge form, or failure to have a valid reason to impose a PICS challenge, could lead to the filing of criminal charges against you.

APPLICABLE CRIMINAL CHARGES

The Pennsylvania State Police are filing charges on firearm applications cases at a record pace. The two most common charges associated with firearms application cases are:

Sale or Transfer of Firearm - 18 Pa.C.S. 6111(g)(4) - Punishable by up to 7 years in prison: any person, purchaser or transferee commits a felony of the third degree if, in connection with the purchase, delivery or transfer of a firearm under this chapter, he knowingly and intentionally: (i)  makes any materially false oral statement; (ii)  makes any materially false written statement, including a statement on any form promulgated by Federal or State agencies; or (iii)  willfully furnishes or exhibits any false identification intended or likely to deceive the seller, licensed dealer or licensed manufacturer.

Unsworn Falsification to Authorities - 18 Pa.C.S. 4904(b) - Punishable by up to 1 year in prison and a minimum $1,000 fine: A person commits a misdemeanor of the third degree if he makes a written false statement which he does not believe to be true, on or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are punishable.

COMMON REASONS FOR CRIMINAL CHARGES

There are many reasons why a person can be denied the right to purchase a firearm or obtain a carry permit, which include:

• Being a fugitive from justice;
• Convictions under the Controlled Substance, Drug, Device and Cosmetic act which is punishable by imprisonment exceeding 2-years (even if your actual sentence was less than 2-years);
• Three or more convictions for DUI  within a 5-year period;
• A person who has been adjudicated as an incompetent or who has been involuntarily committed to a mental institution for inpatient care and treatment under the Mental Health Procedures Act;
• Those present in the US unlawfully (i.e. illegal immigrants);
• Anyone subject to an active Protection From Abuse (PFA) order;
• Anyone who is adjudicated delinquent of certain offenses as a juvenile, including, but not limited to homicide related offenses, felony assault offenses, sexual assault offenses, arson, robbery, and extortion.
• An individual whose character and reputation is such that the individual would be likely to act in a manner dangerous to public safety;
• An individual who is addicted to or is an unlawful user of marijuana or a stimulant, depressant or narcotic drug;
• An individual who is a habitual drunkard;

If you answer questions regarding these issues incorrectly on your application, you may very well be charged with the offenses discussed above.

COMMON ERRORS AND MISREPRESENTATIONS ON FIREARMS APPLICATIONS

Even if your mistake was innocent, you don't want to have to explain yourself before a judge or jury. Some of the most common mistakes, include:

• "I didn't know my juvenile record counted."
• "That case happened years ago, I thought it was automatically expunged from my record."
• "I didn't know my commitment was classified as involuntary."
• "I forgot that a conviction was on my record."
• "I didn't know I had an active warrant for my arrest."
• "I didn't think my conviction carried a maximum sentence of a year or more."
• "Nobody went over the form with me."

In other cases, the offender simply had such an extensive criminal record, that there was no way they could have been mistaken about their checkered past when they completed the application.

We have also seen cases where a person who purchased firearms in the past was charged because he/she made an admission to having smoked marijuana for decades (answered "no" to question regarding drug use).

The bottom line is this: if you answer an eligibility question inaccurately for any reason, the police and the local District Attorney's office will likely assume that you intended to deceive the agency reviewing your application. 

HOW ZLF CAN HELP

If you are uncertain about the answers to any of the questions listed in a firearms purchase or carry permit application, it is highly recommended that you hold off until you run an FBI criminal background check. You should also retain counsel to review the application with you step by step, to insure that your answers are truthful and accurate.

If you have already been denied the right to purchase a firearm, or obtain a carry permit, you should immediately consult with an attorney about filing a PICS challenge.

If it is too late, and you are charged with the Sale or Transfer of a Firearm or Unsworn Falsification, call ZLF today at 412-447-5580 for a free, confidential consultation. 

Supreme Court: Absent Reasonable Suspicion, Use of Drug Sniffing Dog to Prolong Routine Traffic Stop Violates 4th Amendment

On April 21, 2015, by way of a 6-3 vote, the SCOTUS imposed a significant limitation on the use of drug sniffing dogs during traffic stops. In Rodriguez v. United States, the defendant (driver) was pulled over by a K9-Officer for driving on the shoulder of a Nebraska highway. Upon approaching the vehicle, the officer confirmed the identity of the defendant by checking his driver's license, and was issued a warning for the traffic violation.

After issuing the warning, the officer requested permission to use a drug-sniffing dog to check the vehicle for the presence of narcotics. The driver refused. The officer then proceeded to detain the driver until a backup unit arrived, and then conducted a K9 sweep of the vehicle. Approximately 7-8 minutes after the initial stop, the dog alerted to the presence of drugs in the vehicle. A search revealed the presence of methamphetamine.

The driver then argued that his detention for the purpose of conducting a dog sniff after the traffic stop was completed (i.e. issued a warning for original traffic violation) violated his 4th Amendment right against unreasonable searches and seizures.

In a 6-3 vote, the SCOTUS ultimately held that without reasonable suspicion to suspect that narcotics are present inside of a vehicle, the police cannot use a drug sniffing dog to extend a traffic stop.

• "We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitu­tion’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, there­ fore, “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation."

If you are subjected to a traffic stop, and are asked to consent to a dog sniff or other search of your vehicle, you should immediately - but politely - decline. Assert your constitutional rights. Do not give consent to search your vehicle, and ask to speak to an attorney.

If your vehicle or home was the subject of a drug sniff, contact ZLF today at 412-447-5580 for a free, confidential consultation.