What are my options with my DUI?

Q: I was recently pulled over and I got a DUI in Tionesta. They sent me my paper work and it states DUI 1st. I know it is my 3rd within 10yrs. I recently had my oldest son move in with my fiancé and me. I have a great job. I stopped drinking but recently started again due to family issues. I am not an angel but I am a good man. I just want to handle this situation the best way possible to avoid more discomforts for my family. (Swisshelm Park, PA)

A: The charges at this point are merely a police complaint. The police likely did not have access to your entire criminal history during the arrest and arrest warrant process. It is customary for the DA to review the case after the preliminary hearing and amend the charges after they have run your FBI and PA State Police background. As a third DUI, you could be looking at 90 days if your blood alcohol level is below .16 and one year in jail if over .16. You need to have a criminal defense attorney review this case to see if you have any plausible defense, probable cause or other, and if not, what plea options you might have. If you are over the .16 level, you may want to involve yourself proactively in therapy. Again, consult with an attorney to discuss your options.

 

As POA can I testify for my father at his elder abuse PFA hearing? (Verona, PA.)

Q: My father can’t testify at his own elder abuse PFA hearing due to mental incapacity, I have POA, will it be denied? My father has been physically abused and mentally abused by my younger brother. Recently, my brother is financially exploiting him too. My father is mentally incapacitated due to severe depression, Alzheimer’s disease and dementia and physical illness and he can’t testify on his own behalf. I want to file for a PFA since I have a durable power of attorney. And since I know about all the abuse and financial exploitation, I am able to testify to get the restraining order. Do you think the restraining order will be denied at the hearing in court?

A:  You cannot step into his shoes and testify him because you are his Agent on a POA. however, I think you can still prevail at the Protection From Abuse Hearing if you or someone else can give first hand testimony of the abuse-actually witnessing the abuse. I would suggest that you bring father to court so the judge can see his condition and bring a copy of the POA to show that you are the agent. I would strongly suggest having a lawyer represent him at the hearing.

Can a 7K gift to my sister exclude my mother from receiving Medicaid?

Q: Hi. Looking for assistance on the Medicaid look-back period, details below. My mom “loaned” my sister $7000.00 3 years ago. My sister said she would pay her back but who knows if she will. I know Medicaid looks back 5 years. If her money runs out, what will happen if my sister hasn’t repaid the money? They will throw her out on the street? If my sister can repay the money (or if I can and choose to do that for her), is there a specific way I have to do so? The money was just removed from my mom’s account at the bank and handed to my sister. Could I just deposit the same amount and it is ok that there is no proof where it came from? And is it 5 years from the day Medicaid would pay or 5 years from the date I am filling out the application? Can I not even apply for Medicaid till the money is repaid? (Bridgeville, PA)

A: Do not even attempt to handle this without the advice of an experienced elder law or estate attorney who understands Medicaid. You are playing with fire. It may be possible to address the “loan” even if it’s not repaid and still avoid a penalty period should your mother need to apply for Medicaid. However, that depends on many factors that are best addressed in person with an experienced elder law attorney. Generally, a gift like this can potentially exclude your mother from receiving an amount of Medicaid funding equal to the amount of the disqualifying gift. Again, seek an opinion.

 

Should I plead to Disorderly Conduct charges when I was attacked?

Q: How should I plead on a disorderly conduct charge (PA 18 5503 A1)?I was at a bar and some friends and I were in the process of leaving. A guy that was outside getting into his friends car started heckling us. As they started to drive away the man rolled down the window and continued (he was clearly drunk). I yelled back which prompted him to jump out of the car and attack me. While I did throw the first punch, he came at me with what I assumed to be an intent to harm. He grabbed me by the collar and there was pushing back and forth before I hit him. His friend then got out of the car and joined in the fight as well. Cops showed up and saw them attacking me and arrested them. I explained it was self defense and they said I could go. About a week later I received a Summary charge for Disorderly Conduct. How should I plead? What can I expect in either case? I should also add I have no record or any prior convictions of anything besides traffic violations.

A:Plead not guilty and hire an attorney for the hearing. If you get convicted for a DC summary, it will stay on your record for 5 years assuming you get in no further trouble in that 5 year period. It sounds like you have enough for any experienced criminal defense attorney to employ self defense as a total defense . The police may have cited you as a way to get you to come to court to be there witness. An attorney can talk to them for you and figure this all out.

 

Fear of needles! Is this a refusal for blood testing?

Q: My friend has an intense fear of needles and was in a car accident. He was taken to the hospital and was asked for a blood test. He informed them he was terrified of needles and was willing to do anything…. urine, breath or to figure out a way for a blood test but he had a very strong fear of needles. They said okay and drove him home. Now they are saying he refused and he will lose his license for a year. Is there any kind of disability that they were unaccommodating here? Unwilling to numb or knock him out or something? Surely there is some alternate procedure for people with this phobia that he was denied? (West Newton, PA)

A: You have no choice in PA as to what test is given. If the arresting authority had no breathalyzer machine, they had no choice.  I have had cases where the police honored such a request when they had the test machines at their station. Just about any form of resistance to the request for blood alcohol testing pursuant to a DUI arrest is considered a refusal in PA, under the strict administrative rules of the PA Department of Transportation. The only defense I can imagine to this is if he has a doctor testify of this needle phobia existing prior to the DUI and of prior incidents in which he could not be treated medically with injections. Courts are generally not receptive to arguments like this or other similar ones such as person’s alleging they cannot urinate in a bottle.

 

I obtained a judgment in court, when do I get paid?

Q: I won a judgement in local court but the defendant has not paid. What can I do next to recieve payment? (Pittsburgh, PA)

A: In Pennsylvania, you can ask the magistrate’s office for forms to complete, so you can “execute” the judgment on the defendant’s property. The constable will then proceed to the defendant’s home and levy his or her property for sale. The defendant will then have to file objections to the levy for property that happens to be exempt from a judgment. This will cost you money and time. I would review it with a lawyer first to determine if this person has personal or real property that will make going through all of your effort worthwhile.

Kicked out of home. Can I emancipate myself?

Q: What are the odds that a homeless teen that has been kicked out of their home will be able to legally emancipate them self? And if there is a good chance it will happen, is there a way for them to get financial aid of some sort to pay for a lawyer? Homeless people don’t have much money.

A: I am assuming you are under age 18? Proving emancipation is not easy, as you have to convince a judge you can support yourself which very few teenagers can do, at least in the eyes of a judge. The judge may say to you, if you are so self sufficient, why do you need someone else to pay for a lawyer. On the other hand, if you are truly homeless and want support, and there are valid reasons that you cannot return home other than you just don’t like it, you may be able to get Children Youth and Families to file a dependency action for you. You can call the courts or Kids Voice in Pittsburgh for help. (Pittsburgh, PA)

My eighth suspended license offense

Q: I was caught driving on a suspended license for the 8th time. This time in Dauphin County. I live in Westmoreland. Can I appeal the sentencing? I missed my court date with the district justice office and got 6 months county prison time. I have appealed it, but was wondering what my chances are of getting the sentence changed to something other than prison time. I know of people who have been caught 15 times or more and did no jail time.

A:  I cannot tell if this a Motor Vehicle Code 1543 (a) or (b) suspension. 1543 (b)’s are DUI related and carry additional penalties under the habitual offender statute. If you have appealed in a timely fashion, you may be able to receive a sentence of house arrest or electronic home monitoring. However, I am unfamiliar with the practices of the DA and courts In Dauphin County, so you will have to confirm this with a Dauphin County attorney. You may want to hire the attorney who  has kept your friend with 15 license suspension convictions out of jail. Be aware though, you may face problems in having Dauphin County transfer an electronic monitoring house arrest sentence to Allegheny County for supervision.

 

What do I do with the Petition for Settlement of a Small Estate?

Q: I just received a petition for settlement of a small estate. What do I do now? I’m one of the 3 heirs of my mother’s estate. My stepfather is the one taking care of this business. There is also a waiver of a 20-day notice sheet and an ‘order’ sheet. Are these basic forms to be signed in order to get what she left behind? Is there anything I should look out for?

A: Settling an estate by small estates petition is less time consuming and less expensive than settling and estate by filing for probate then closing the estate informally by the filing of a Family Agreement or formally by First and Final Account with the court. It is used when the assets are under 25k and do not include real estate. You have the right to not agree to this and hold it up if you want. However, you should call the attorney and ask him how much you might receive, if any, and exactly what assets were left by your mother. If you are not satisfied with his explanation or he won’t return your call, you can either 1) consult with an attorney who will do this for you or 2) show up in court on the date of presentation of the petition (for which you will receive notice) and express your dissatisfaction to the judge. The judge will set the matter for a conference, at which time your questions hopefully will be answered.

 

Applying to Medicaid. Do we need to mention gifts from 2-3 years ago?

Q: Our mother is going into a nursing home and application asks for any transfers. Do we need to declare gifts from 2-3 yrs ago? She has resources for approximately one month in a Nursing home and afterwards I believe Medicaid would take over.

A: Yes, when applying for Medicaid eligibility, you need to list all transfers of any property for no consideration (gifts or under market value) in which mom had an interest for the past 5 years. Any transfers without consideration, or which the consideration (money received for sale) for her property which has not been documented, could possibly exclude her from Medicaid eligibility. You really should consult with an estate lawyer or elder law lawyer versed in Medicaid law before filling out any benefits application.