JUST SITTING IN MY CAR ON SIDE OF ROAD, COPS FIND HEROIN IN MY TRUNK

Q: I was pulled over on the side of the road (there were no signs or anything saying that you could not be parked in this area) and police pulled up behind me and began questioning me. I didn’t think I was doing anything wrong. They found 3 bags heroin inside my tackle box in the trunk and some powder cocaine in an aspirin bottle in my fishing boot also in the trunk. What do I do?

A: There is a lot of missing information an attorney would need to know if you have an illegal search issue. For example, what probable cause or reasonable suspicion drew their attention to even approach you? What reasonable suspicion led them to your trunk? How about your tackle box, and boot as well? Did you let them search the trunk? How they get to open your trunk in the first place if you are not violating any law is a good question and may lead to a constitutional defense. On the other hand, if you are passed out on the side of the road, and you appear to be under the influence of drugs or alcohol, they can inquire further. However, they should not be able to search your car based on that alone. Review the police reports and all of the information with an attorney before you go to court.

Threats from next door neighbor-she is 76

Q: We have a 76 year old woman living next door and she is in the habit of taking in homeless people. Last summer some of her” tenants” were seen by my wife and myself using her back yard as a urinal and a portion of it as what we can only describe as a defecation pit. My wife talked to her about this but it went on until I called the city about it. They came out and spoke to her but it still went on. Now she found out that I was the one who called and tonight she came over making threats at our front door beating and banging on it, in a drunken rage, with foul language, then went around back and did the same. We called 911 and the police said maybe I should get a court order so if it occurs again I can press charges. I know she is up in age but some of her tenants shoot guns in the woods and they have been doing drugs on her property also (we smell marijuana smoke and other weird smells). Do you think an anti harassment order would help?

A:  Bad neighbors can be big problems. She is free to do things on her property that are not illegal. If you believe she is violating state laws or zoning ordinances, call the police or the municipality and let them investigate. Keep calling until they do their job. As far as her coming on your property, she can do so for legitimate purposes. If she is not welcome on your property any more, tell her so or provide written notice to her that neither she nor her crew are welcome on your property. If she continues to get drunk and come back over to your house (which often happens with people like this) she will be deemed a trespasser based on your prior notice. Under the law, based on the prior warning, she can be arrested as a trespasser and you can have law enforcement cite her or arrest her for trespassing. As far as a civil order you can probably get one if you continue to establish a record of bad behavior and get some good photos-like the defecation pit and sound recordings of the discharge of guns. However, you would need to pay a lawyer to do this and a civil order will not have the bite that a criminal charge would. Plus, you don’t have to pay the police, or at least should not have to. Perhaps she has lost her faculties due to natural aging or drug and alcohol abuse and a social services agency may help by doing a wellness visit. If they visited her and became concerned, they too could make referrals to the appropriate agency including the police or psychiatric intervention teams. Good luck.

Can I sell property with a Power of Attorney without the person’s knowledge?

Q: Can you sell someone’s property under their general durable power of attorney without the person knowing or signing documents? Can you get in trouble for doing this?

A: All powers of attorney have an underlying understanding that the agent is acting in the best interest of the principle. If the principle is competent to make his or her own decisions and you, as agent, are operating behind their back doing this, you are not fulfilling your duty. If they are incompetent and you are acting in their best interest, that is another matter. You really need to have a local lawyer look at the POA and assess the situation. Is it a standard general durable POA or is it a springing POA? Is the principle competent? Is this move in the principal’s best interest? There have been two significant changes in POA language by the PA legislature, one is Act 39 in the year 2000 and one is Act 95 in the year 2014, effective January 1, 2015. Much of these changes were made to curb and police the actions of agents who exceed their powers in not acting in the principal’s best interest.

Brother has a will, but put us on his certificates of deposit

Q: My brother had his will drafted in 1999. In this will, all of his property was left to a certain friend of his.  However, several years later, he added me and our sister to his certificate of deposits.

A: Generally, jointly held property (joint tenants with right of survivorship) goes to the surviving tenants and does not go into the estate. Therefore, if your brother made you and the sister joint tenants with him on the CD’, when he passes, you and your sister own the CD’s and they do not go into the estate nor to the “certain person” listed in the will. If the transfer of the CD’s was done within a year of death, they are fully taxable with a $3,000.00 exclusion. If made beyond one year prior to death, the surviving tenants only pay inheritance tax on the deceased tenant’s share. Thus if you, your brother and your sister are joint tenants with right of survivorship, then inheritance tax is only due on one-third of the assets.

DOES A NOLLE PROSSED CASE SHOW ON MY CRIMINAL HISTORY?

Q: Will a nolle prosquei in another state appear on a criminal background check in Pennsylvania? I have applied for a job, but am currently waiting for the expungement process to finish. How detrimental is this to my chances of landing a job? I wasn’t arrested, but was issued a citation in Baltimore, MD and was forced to do community service, now will this info be available for my potential employer? I reside in Philadelphia, so should I wait to apply so it isn’t a bad reflection on me?

A: Check with a Maryland lawyer. In Pennsylvania, when you receive a nolle pross on a misdemeanor or felony, you still have to expunge the arrest record as it is the arrest records that stay in the system until the defendant pays an attorney to expunge them. With a citation for a summary offense, there is no arrest record but there are court documents that are generated in the system relating to your District Justice court case. Only in certain circumstances, like an ARD case in Allegheny County, but not all counties, does the DA expunge the records free of charge. In the expungement process, it can actually take and estimated nine to fifteen months for your arrest records or other court records to disappear. It may be prudent for you to wait a while before you apply for your job. If you were arrested, whether it was done physically or via summons, you must answer in the affirmative if you are ever asked by a potential employer if you were arrested in the past, even if you were not convicted. If asked if you were ever convicted of a crime, you can answer, no. Being cited with a summary offense, at least in PA, does not involve an arrest. You are merely “cited” so you do not have to state that you were arrested if you are asked. If you are ever asked if you were convicted of a crime and you were in the past found guilty or pled guilty to a felony, misdemeanor or summary offense, you would need to answer yes to this question.

SON’S DEAL WITH DA-ENFORCEABLE?

Q: My son was a suspect in a robbery and he decided to write a statement to help the DA to prosecute the guy with the gun and in DA promised his charges would be reduced to juvenile charges now she’s not holding up her part of the bargain. Is there anything I can do or some motion to file.

A: If your understanding is correct, let me offer this. Plea negotiations between attorneys are considered to be binding and enforceable. Thus, a plea agreement between your attorney and the DA, are binding and are enforceable. Plea agreements between police officers and defendants are not considered to be binding and enforceable. If this agreement was between your son’s attorney and the DA, the attorney should be loaded for bear and file a motion to get this story before the judge and request the judge to enforce it. If the deal was between your son and the DA, the agreement is not considered to be binding nor is it enforceable. However, what was done is not fair to your son and should not have happened. You should get an attorney involved who can file a motion to inform the court what happened and request that the agreement be honored.

Husband will not give my son back

Q: My husband who no longer lives with us took our son to spend time with him but won’t return him, how do I get him back? We live in Pennsylvania. My husband moved out in the first week of December last year. He is emotionally and physically abusive. I have had the chance to leave him several times but became one of those victims that always goes back. Well I am happy to say I am no longer going back. Yesterday, my husband showed up wanting to see our son so I let him. Now he won’t give him back. There is no custody order and no divorce papers, yet. How do I get back my son?

A:  You have to file for custody in court. Without a custody court order which spell out which parent has physical custody, which parent has visitation, etc., unfortunately, either parent can keep the child from the other parent, as harmful as that may be to the child. I would advise getting a lawyer. The lawyer can start the custody process. This would be by going to motions court and getting an emergency temporary custody order then simultaneously filing for custody mediation, which is mandatory in Allegheny County.

 

Do I need a will? My children agree on everything?

Q:  Do I need a will? I have no real estate, just bonds and a bank account. My 4 children know it is to be split up evenly and they agree with my wishes.

A: No attorney can answer this without more information. Do you have a wife? If so, she cannot be totally disinherited by you and can file an “election” against your estate. Do these assets pass directly to your children either in-trust-for or jointly? If there is no spouse and the assets pass directly, it could be a very simple process and your children would receive their inheritance, pay inheritance tax and there would be no need to open an estate. If you have no will (“intestate”)and these assets do not pass directly to the heirs, an estate will need to be opened and the assets will pass under the PA laws of intestate succession to the heirs equally. Under intestate law, if you have a deceased child, that child’s child or children will inherit the share of their parent. If you have a will you can choose to have the share of a deceased child instead pass to your surviving children or any one of your surviving children. You have more say in how your estate passes when you have a will. You can also choose which child will serve as your executor, which could avoid any potential disagreement among your children.  I would advise having a consultation with an estate attorney and having a simple will done.

IS RESTITUTION ORDERED IN DUI CASES?

Q: Is restitution always ordered in DUI cases? If someone’s insurance pays what is the need for restitution, this is why we pay insurance premiums I thought. If I cannot afford restitution, can I be rejected from ARD for my DUI?

A Yes, if restitution is owed, it is usually part of the Accelerated Rehabilitative Disposition agreement. The District Attorney can choose not to accept you into ARD if a victim has not been reimbursed for damage that you caused relating to your criminal case. Let’s say for example you wiped out a homeowner’s fence in the course of your DUI. Generally, if your motor vehicle insurance covered the cost of the new or repaired fence, either directly to the property owner or through subrogation to their homeowner’s insurer, you should only be responsible for “out of pocket” expenses of the victim in order to be accepted into ARD. These out of pocket expenses could mean their deductible or any other item not covered by insurance.

Opening a Home Care Agency. What kind of lawyer do I search for?

Q: I’m opening a Home Care Agency. I was doing a lot of research and keep seeing that I should have a lawyer on “standby” my question is, what kind of lawyer do I need to oversee the operations and make sure everything is legit. Someone I can call if I have legal questions. What exactly does this lawyer do when your hired for something like this

A:  I wouldn’t be in a hurry. I would network, ask around for referrals and meet a few attorneys. Talk to some people in your field who have used attorneys. You will want to find an attorney who has business law skills as well as estate and elder law knowledge. The lawyer should have some experience in state regulations relating to nursing, nursing homes, home nursing care, Medicare, Medicaid, be versed in forming corporations or LLC’s, understand income tax laws, contracts, and ERISA and employment law. You can also call the Allegheny County Bar Association, Lawyer Referral Services, for a referral.