Can someone be arrested for unknowingly lying on a gun application?

Q: Someone I know filled out an application to purchase a gun, not thinking the 2 nights they spent in a health facility ten years ago mattered. They were arrested for it a few months later, spent the night in jail, had a hearing scheduled. The attorney wanted this person to agree to paying a $150 fine even though the attorney said the whole thing was ridiculous. There were a bunch of magistrates around during the time the hearing was scheduled for, so this person never showed for the hearing because they felt as though it was a trumped-up charge and was going to be arrested for past unpaid warrants.

A: This person needs a lawyer. As you describe it, they made matters worse by not showing for the hearing. It sounds like the attorney had the case bargained down to a summary offense, which would have been a good result for your friend. Yes, one can be arrested for giving false information on an application to purchase a firearm. People are presumed to know what has happened to them in their past. One should have a vivid memory of spending two nights in a mental health ward. However, we are not all wired alike. I have had some success in getting these charges dismissed in circumstances where the person otherwise has no criminal or mental health history and it is believable that they did not fully understand the legal implications of their own history especially considering the confusing questions on the purchase application form. The definition of “Knowingly” in the PA Crimes Code, does give rise to defendable argument.

If there is no DUI refusal and the police release you can you still be DUI?

 

Q: I got in an accident because of deer ran out in front of me. I hit a telephone pole and was charged with a DUI, DUI refusal, also reckless driving and careless driving. No DUI refusal form was filled out and the police released me one hour after I was put in the holding cell. They told me I had to walk home if I had no ride. (Jefferson Hills, PA)

A: If you didn’t sign a refusal form, the officer can still testify that you refused blood alcohol or breath testing. The fact that you were released to walk home has no consequence. The police likely had the information they needed to file charges and thought you were sober enough to walk home after a certain point. You will be sent a summons. The other alternative would have been for the police to take you to the county jail to be arraigned in night court and released the next day. The summons process is better.

What is the per diem charge on a civil judgement? I need to calculate my payoff!

Q: I have a judgement against someone and a lien on their house from 10/30/2014. The title company just called me for a payoff. I need to know the per diem increase for the amount to complete it. (Pittsburgh, PA)

A: Judgments in PA bear interest at a rate of 6% per year. You might also want to check if your judgment included costs and/or attorney fees.

Can my 17-yearold be convicted of underage drinking if no test?

Q: My 17-year-old was at a house where there was alcohol. There was an altercation between others. She was not involved and asked a friend to take her home because she was scared. Police stopped them did not test them. The cop did ask her how much were you drinking and she said a little. She was drinking Red Bull and thought that was illegal. Will she still be charged? (Mt. Lebanon)

A: Attorneys defend these cases all the time. Police break up an underage drinking party and don’t have evidence of alcohol consumption for some of the kids because they have no beverage container in their possession, do not appear to be intoxicated nor smell like alcohol. This normally does not prevent the police from citing everybody at the party. The statute 18 Pa. C.S.A Sec. 6308, requires proof that a minor consumed, transported, possessed or purchased alcohol. If the only evidence against your daughter is that she said she was drinking, the officer can testify to that and it would be up to the District Justice to believe your daughter’s story about her believing Red Bull was illegal. I find her story questionable but I would have to hear it in person. Bear in mind that many District Justice offices offer a program for minors in this situation whereby the charges will be withdrawn if the minor completes an alcohol class. I would consult with a lawyer as if your daughter is convicted, she will have a record for five years and will lose her driver’s license for 90 days.

How do we get the property back?

Q: My aunt oversees my grandmother’s finances and property. We recently discovered a transfer of one of her properties, which has a value of over 1/2 million dollars, has been transferred into my aunt’s name for no price. She admitted to putting in her name but my grandmother hasn’t said anything. My grandmother has five other children and my aunt did this behind my family’s back. Even if my grandmother granted this, which I don’t think she did, she no longer has a sound mind and has a problem with her memory. My dad plans on talking to my grandma but at this point is there any way to resolve this? (Pittsburgh, PA)

A:  These family situations are difficult. It is always possible your grandmother wanted your aunt to have the property. If you want to examine the transfer, hire a lawyer to look at the deed and the entire situation to determine if there are any red flags surrounding the transfer. Is your aunt operating under a valid Power of Attorney? Is the deed legally sufficient? You never know what you may find out. If the deed was prepared by an attorney he or she would have or should have examined your grandmother for competency prior to signing the deed. If you have an opinion from her doctor which states that at the time she signed the deed she would have been incompetent you have a stronger case. If your case is based on speculation, gut instinct, and suspicion, you will have an uphill battle. If you find that there are legal grounds to challenge the deed, an attorney can file a petition to rescind the deed or a quiet title action in court.

I am a caregiver. Can they audio record me?

Q: I have been a caregiver for this family for two years and recently found out they have cameras in some if not all bathrooms and are recording our conversations. They have repeated things I’ve said and have commented on things I have done. Can I sue for violation of privacy? (Greenfield, PA)

A: Pennsylvania laws on wiretapping make it a crime to audio record another person without that person’s consent. Video recording with visible cameras is not a crime in Pennsylvania. It is not unusual for caretakers, from daycare to elder caretakers, to be subject to video recording. Normally, the cameras are visible and known or the caretakers have been informed of them. The two things that concern me are that you say you just found out after two years and the cameras are in the bathroom. You may have an invasion of privacy issue and therefore a consultation with a lawyer who handles such cases may be advisable. If the cameras in the bathrooms are filming private matters and you have proof that you were audio recorded without your knowledge, you may have a criminal case in which case you would call the police as a first step.

Is it legal for person to distribute an expunged criminal record to third parties?

Q: I’ve been raising my eight-year-old old niece since she was three. On April 15, 2015, I was charged with retail theft and had the record expunged in November of 2016. My niece’s paternal grandmonster was granted visitation rights in June of 2016. Prior to filing the grandmother posted on FB that “I’m a malicious little b**ch” for having FB remove pictures. In a comment to the post she states, “better than going to jail for hitting the b**ch over the head with a bat.” At the first custody hearing she was told to remove all pics by hearing officer, but the day prior to the March 16th hearing she made another profile picture and we showed the master. When leaving the hearing she called me a “f’ n “C” and to watch my back.” Also in March 16th, she called the soccer organization I coach for and told them of my charges. On June 16th, she made a fake FB profile of me. On September 16th, she told me she was going to beat my ass at a child’s birthday party. On December 16th, she called my salon and spoke bad of me and messaged the soccer coach under a fake name. On Jan 17th, she messaged the soccer organization of a copy of my charges she had from June 16th. They were expunged and told my niece she is going to live with them and not see me again. On February 17th, she messaged the soccer organization again. On Mar 16th, I was told about messages from the child. (Pittsburgh, PA)

A: This is an unfortunate situation and this behavior is why I significantly reduced my family law practice. As far as someone distributing an expunged record, I do not know how someone can distribute an expunged record if the record has been expunged. If the record is expunged the state police criminal history should show nothing. If what you are saying is that she forwarded copies of your charges to another person, I do not believe you have a lawsuit as normally arrest records are court documents and therefore public information, for all to see. If what you mean is that somehow the expungement petition and related paperwork from the lawyer handling it, were sent to a third party, this is probably not a good law suit either. This happened to one of my clients who stupidly kept his sexual assault expungement papers he received from me in the visor of his truck and his new girlfriend found them. By the way, there are a lot of number 15, 16 and 17’s in your question.

Charged with contempt of court as a minor?

Q: If a 17-year-old minor involved in a case as a witness, refuses to attend and testify in court, what charges would he/she be facing? Could they receive a fine, or even jail time? (Peters Township, PA)

A: The only circumstance in which a person can be legally obligated to appear in court and testify is if they were served with a Subpoena. As this person is a minor, his parents or guardians must be served. If the parent or guardian is served with the subpoena and do not want to bring their son to court, they should seek the advice of a lawyer as to whether they have legal grounds to not comply, such as the minor’s 5th Amendment rights or a real threat of retaliation or witness intimidation. If the parent or guardian has no such valid reason, then they can be held in contempt of court by the judge and the judge can issue an order or warrant and have them brought to court by sheriff or police.

Can someone change anything on a will that was signed?

Q: My mom’s not going to be here much longer she’s being released to come home under hospice care. I have the will. The house goes to me and my sister but my sister is power of attorney over my mom my mom doesn’t trust her anymore. I my mom able to change anything on the will? (Lawrenceville, PA)

A: To change the content of a will, normally, a new will must be drafted. One cannot simply make changes to a will by writing on it, or crossing things out. Codicil’s (additions or addendums to wills) were used at one time, before the advent of word processing when wills were handwritten or typewritten. Rewriting the entire will to change one thing was unduly time-consuming and burden. However, the legal requirements for a will and a codicil are the same. The codicil must be executed with the same formality as if it was an original will. Thus, in modern times, most people just draft an entire new will. As long as your mother is competent, I would suggest having her make an appointment with a lawyer who can consult with her and draft a legal document that suits her testamentary wishes.

Can I sell my mother’s home?

Q: My mother is currently in assisted living and is broke. I am selling her house and would like to know the best way to handle the proceeds. I was advised to put the money in a single premium immediate annuity naming the estate as beneficiary and myself as second beneficiary. I thought annuities carried high fees. Will I be able to pay her monthly bills which will continue to increase from this type of account? And at some point, sooner rather than later I will need to apply for Medicaid so need to know best way to handle the proceeds in that regards. (Clairton, PA)

A: As you may know, there is a 5 year look back period when one applies for Medicaid funding. All transfers of the applicant’s assets for less than fair market value, can result in the applicant being ineligible for Medicaid funding to the extent of the value of the assets. If mother will be receiving Medicaid funding in the next five years, Medicaid will have an interest in these proceeds. There are more details that need to be known before you sell this home, and you should seek the advice of an experienced attorney who is versed in Medicaid regulations. Generally, you should only sell this home for not less than market value and have at least on appraisal if there is any doubt of the value. You should document everything pertaining to the sale. Once you obtain the proceeds, you should and use them only for your mother’s benefit, whether that is investing them for her or using them to pay for her care. An attorney can also advise what if any exemptions or exclusions from Medicaid may be available.