A friend of mine got into a minor accident while DUI and on probation?

Q: A friend of mine just recently got into an accident. He moved slightly into the adjacent lane going about 25-30 mph and hit the side of another car. His BAC was about .11 on a breathalyzer. No one was hurt, and everyone was very accepting of his apology. Unfortunately, he is on probation and only had 2 and a half months left. He is in jail now waiting for the blood work to come back and waiting on a court date. What can we all expect for him as far as sentencing? Is house arrest a possibility? Or are we looking at months of incarceration? (Pittsburgh, PA)

A: Too little information here to advise. Like, why didn’t he make bond on his DUI? Is there a probation detainer? If it is a probation detainer holding him in jail, it is for a prior DUI? Is this a first, second, third DUI? Does he have a prior record? You should see that he is represented by either a private attorney or a public defender. The fact that he was in accident will likely raise his DUI penalties. If this is a 3rd or 4th DUI, his case will go to DUI court. He will likely not have a jail sentence, but DUI court requires strict compliance and monitoring.

Do I turn myself into the magistrate if I appeal?

Q: I got a driving under DUI suspended license, but it isn’t suspended anymore. I’m off probation for my DUI. So, if I want to fight it do I still have to turn myself in on the given date at the magistrate. (West Mifflin, PA) A: I assume you are saying that at the time you were stopped and charged with 1543 (b), driving under a DUI suspension, the suspension period had expired beforehand and you think therefore that you should not be charged as you were not under suspension at the time of the stop? If so, and you obviously didn’t have your license in your possession, you can still not only be charged but can be convicted for not having RESTORED your driving privileges after the suspension period ran. The law is brutal in that it still views you as under suspension if you did not restore your license, even if your period of suspension has expired.

A 1543 (b) violation carries 60 days in jail, a $500 fine a one-year suspension for the first offense. In these circumstances, I have luck on occasion with the police working the charge out to a lesser offense that does not involve jail or a license suspension. You can restore your driving privileges by calling PennDOT or ordering from their website, a restoration requirements letter. It will require at least sending in the completed form and a fee, and, possibly, paying any unpaid fines or costs you have from OTHER cases in the system. The requirements letter will state what you need to do. I am not sure what kind of date you have before the magistrate, but if you were convicted and he gave you 30 days to turn yourself in, that sounds like you may be going to jail on that day. If you were convicted by him, you need to appeal. If you appeal to the Court of Common Pleas, Summary Appeals, the judge can give you house arrest. It sounds like you should take your papers to an attorney immediately.

Can I get convicted for DUI when out of the vehicle, no keys in ignition?

Q: I was a passenger in my vehicle when the driver made a sharp turn into a parking lot and parked behind large SUV’s. He exited the vehicle and ran to the wood line, 30 feet away. My dog ran after him, I exited the vehicle and retrieved my dog, not knowing why he did this. Upon walking behind my vehicle approximately one minute after this occurred, with dog, I noticed the state police cruiser sitting approximately 30 yards away. He approached me. Long story short, I was charged with a DUI. He never asked who was driving, or anything. As soon as I gave him my personal info, he soon exited his vehicle, no lights on, and immediately began a sobriety test. I didn’t refuse to cooperate with him but didn’t provide any info. I refused to test 2 two years ago, so I figured I’d best not refuse anything. Upon searching me, he found approximately 2 grams of Marijuana. What are the chances of conviction in court for a case like this. I was never seen operating the vehicle. This was not a traffic stop or DUI stop. Secondly, will the search be rendered illegal if the DUI is beaten in court? In other words, would the misdemeanor possession be void because it was found after the DUI arrest? (Jefferson Hills, PA)

A: I assume you are charged with DUI and possession? Operation of a motor vehicle is an essential element of every DUI prosecution. If the police cannot put you behind the wheel or there is not an abundance of circumstantial evidence that can allow a juror or trier of fact to conclude that you were behind the wheel, proof beyond a reasonable doubt may not exist. If the officer saw you pull up, you are sunk. If he didn’t your testimony about the phantom driver must be perfect to be believed by a Common Pleas Court judge. The issue about the search may not bode in your favor. It could be viewed as a safety pat down given this officer finds you in a secluded area, when he is alone with you. Or, it could be viewed as a search pursuant to arrest. It all comes down to what the officer puts in his report and what he testifies to. You will need a skilled trial attorney to spin this your way.

Why was my son taken for bloodwork after a passed breathalyzer?

Q: My son was stopped after “swerving”. He admitted to officer he did because he was changing music on his phone. Officer asked if he was drinking and my son admitted he had 2 beers after work and was heading home. My son passed the field test and was given a breathalyzer. The officer didn’t tell him results or arrest him. He took him to hospital for blood draw and told me summons will be in mail in a few months. Why would they take my son for bloodwork after a breathalyzer on scene? Especially since there was no accident or injuries? Is that common in PA? (Pittsburgh, PA)

A: What you refer to as a “breathalyzer” was not a in fact a breathalyzer. It was likely a PBT or preliminary breath test which merely gauges the presence of alcohol. It is a small gadget which police use at the scene. It has the effect of indicating the presence of alcohol but the police like it as it can be used a probable cause and because it intimidates people in to thinking they are in trouble. The real test in your son’s arrest was the blood draw at the hospital. They are commonly used and there is not much you can do about it. If your son had two beers his BAC content should low and may be under .08 if some time had passed after the consumption.

How do I get my sister out of my house? She does pay $200.00 month.

Q: I have asked my sister to leave for months. She refuses. She pays me $200 month. Do I need to not accept any money? She only draws $500 from SSD. (Pittsburgh, PA)

A: She is a month-to-month tenant under the PA Landlord-Tenant Act and therefore you must follow the landlord tenant laws to evict her. You need to post the property or her room with a 10-day notice and file at the local District Justice Office.

How can I recover my security deposit if I can’t find my landlord?

Q: My landlord has not returned my security deposit and is now nowhere to be found. I do not know her current address and she has not returned any of my phone calls or text messages. What can I do? (Pittsburgh, PA)

A: In PA, you need to serve your landlord with written notice of your request to refund your security deposit within thirty days of moving. Send it via certified mail, return receipt to her last known address. If you do this and the landlord fails return your security deposit, he or she can be penalized under the law in addition to being ordered to return the security deposit. If it is returned, keep the card as evidence. Create a paper trail and save all your documents. You can ask your post office for advice on searching for the new address. If you fill out a request form, they may be able to give you forwarding address information. Keep your documents and if the landlord ever resurfaces you will have records to show you made a diligent attempt to find him and might be able to get your security deposit back plus damages.

Can the value of husband and wife realty be included in an estate?

Q: My father started taking Donepezil for dementia in 2012. In 2013 he had a psychotic episode that required him to be placed at a behavioral health facility and being prescribed Quetiapine. On or about the day he was discharged from the facility my absent brother of 50 years became his Power of Attorney. Since then my brother has done everything to get an early inheritance. My brother even got our parents divorced but the PA Superior Court vacated the divorce and equitable distribution. In 2014 my father changed his Will giving everything to my brother. Now the tricky part is my brother took our father to live in Virginia for the last 5 years of his life, our father died in Virginia, and his Will was probated in Virginia. The real estate is in Pennsylvania. The Virginia attorney says the value of the real estate, along with the personal property located in Pennsylvania, must be included in the estate. If this is true then my mother will get no money, only the real estate. The real estate is valued at $110,000, the personal property $10,000, and the money $105,000. Essentially, if the VA attorney is correct, it is like my mother is buying real estate that belongs to her and my father. (Pittsburgh, PA)

A: I am not sure I understand all the facts. Can I assume you are saying that the house is held in the names of your father and mother and the new will has disinherited your mother? If that is correct, ownership will pass by operation of the law of entireties to the surviving parent and not into the estate and be distributed through the will. Under PA law, but I am not certain of VA law, a spouse can elect to inherit against the will. PA law allows a surviving wife to take a 1/3 interest of certain property transferred out of the husband’s name prior to his death but spouse is charged for the value of certain property he or she inherited. I am not sure if it would be wise to do so if VA has a similar statute, but it is something you should discuss with an attorney in VA. The property situated in PA may require the VA attorney to hire counsel in PA for an ancillary estate.

What should I do if my autistic son was arrested for retail theft?

Q: My 16-year-old autistic son went to a store last week by himself. He was arrested for stealing $5.53 worth of donuts and candy. He was cuffed and taken to a police station to be fingerprinted and all without me. When I got there, I was not able to go in the center. My son came out and they gave me a citation. He now has a plea hearing on April 29th. Do we need a lawyer? Can charges be dropped since he is autistic? (Pittsburgh, PA)

A: If they questioned him, they should have called you first for consent. The charges could potentially be dropped whether or not he has an attorney, given his age and it is presumed to be his first offense. You will have a better chance of accomplishing this result with a lawyer.

Is it illegal if her boyfriend sleeps in the same bed as her children?

Q: A mom who has 2 minor children, ages four and seven. She has her boyfriend living with her and the children. He is sleeping in the same bed with the mom and children. And I will add, this “boyfriend ” drinks every day in front of the children,. A recent accident happened while the two children were in the supervision of the boyfriend. The 7-yearold child fell ten to twelve feet and broke his arm. Child protection is now involved, because of the above. But I would like to know the law as to whether a stranger can sleep in a bed with the mom and the children. (Pittsburgh, PA)

A: I am assuming this is not the biological father. I know of no such law. However, it doesn’t sound right by any means. I have represented pedophiles in the past who have targeted women to date with young children then involve themselves in inappropriate activities with the children such as napping together, “snuggling” on the couch and excessive tickling. I’d be concerned enough that I would tell her it has got to stop and if she does not acknowledge it is wrong, report it to CYF.

What happens if you own property but do not have a will?

Q: My aunt, a widow, is ill and does not have a will. She has three adult children from whom she is estranged. She owns property and has life insurance but feels that is enough. We are trying to avoid a family catastrophe. (Belle Vernon, PA)

A: If she has any property in her name only, (not held jointly or in trust for with others) whether it is real property or personal property, and she has no will in place, it will pass in accordance with the PA intestate succession statute. This statute determines who inherits from a deceased person if he or she has no will. In your aunt’s case, her children will inherit equally from her estate. Her life insurance policy is likely to have a listed beneficiary, but I would tell her to confirm.