Category Archives: Criminal Law

Can we reduce the restitution order my son is to pay?

Q: My son was convicted of burglary with 2 others and their restitution is combined. Is there a way to get it separated? It is understandable that they should pay all restitution. I have no problem with that. With the combined restitution there is no incentive to pay more on the fine and get it paid off, if the other 2 just pay the minimum. Is there a way to modify this, so he can get his paid off, and if one of the others dies, he can then again be held liable along with the other remaining person. With this being as is, my son is not serving a 2 to 8 sentence he received. It is more or less a life sentence. Just seems to me the system is set up to make you fail, instead of doing your sentence and fulfill your obligations to society. Would be nice to get something like this amended so he can try to move forward. Any advice would be appreciated thank you.

A: Restitution, if not paid at sentencing and apportioned between the defendants, in most counties is ordered to be paid jointly and severally with other co-defendants to maximize the chance of it actually getting paid. Joint and several means they are all responsible to pay the full amount to the extent it remains unpaid by the other participants. The victim is likely out property or had to pay to have his or her building or structure repaired. The victim also may have loss more than just property, like his or her sense of security and safety. Thus, judges are unlikely to divide up restitution between the participants because the victim might not get paid in that situation. Too much time has passed to have an attorney file a written motion to modify sentence. The only way in my opinion that a restitution order could be changed would be by agreement of the victim and the DA. I don’t know the facts here, anything is possible. This would generally be difficult to accomplish. So, for now, your son should do his best to pay the restitution to help make the victim whole and avoid a parole violation.

 

Can Disorderly Conduct charges be mailed?

 

Q: Can a Pennsylvania police officer send out a disorderly conduct citation without giving you something at the time of the incident? The police were called for “shots fired” while we were out shooting guns. They couldn’t get us for anything like drugs or beer so they said we’d get disorderly conduct charges in the mail. We never received anything that day. Can they send the charges to us?

A: Yes, citations and summons for court hearings can be mailed. I would make sure to check your mail. If you are charged with a summary offense, you will receive a Notice of Summary Trial. If you are charged with a misdemeanor or felony, you will receive a Notice of Preliminary Hearing, Notice of Preliminary Arraignment and Notice of Fingerprinting. I would take the paperwork to an attorney once you receive them. The way you describe this, it might even be a stretch to convict you of a municipal ordinance for discharging guns unless you admitted to it.

Can Medicaid make a claim against an estate if the estate has been closed?

Q: The estate of my mother, who passed away, was opened in 2012 and closed in 2014. The estate was closed Sept 2014 and Medicaid made an estate recovery claim in Feb 2015.

A: Much more information is needed regarding the type of Medicaid received by your mother and much more information on her estate. For example, was her estate closed formally, by an Account filed with the court? If it was, was the PA Department of Public Welfare put on notice of the Audit date and presentation of the Account to a judge for signing pursuant to the PA Probate Estates and Fiduciary Code? Generally, Medicaid can recover against the property of a deceased person through the PA Department of Public Welfare Estate Recovery Program. However, regulations and rules dictate if this can be done and to what extent. In addition, if the estate followed certain procedures, estate assets may be protected. You need to review this entire situation with an estate elder law attorney who is versed in Medicaid law.

Will I go to jail for being arrested on bond?

Q: Will I get arrested when I report to pre trial services because I got a possession charge due to a heroin overdose? I was released with condition of reporting to pre trial services from Allegheny county jail on a conspiracy charge. I am not on probation. What if I sign into rehab for help instead of reporting to pre trial services but call & let them know where I am?

A:  You need to take care of yourself as a priority. If you truly feel you are at risk if not entering a rehabilitation facility, enter the facility. It is best to be honest with pretrial services whether you enter a facility or not. Pretrial services may only recommend a more stringent bond condition such as screening and intense drug and alcohol counseling. On the other hand they could revoke your bond and take you before a judge. You may do better with a lawyer who you can explain all of the facts. I really cannot give any certain answer without knowing more.

Can I be charged for having an empty weed bag with residue?

Q: What can I be charged with for having an empty weed bag with just weed residue in it? I am 16 years old and live in PA. The cop cuffed me immediately upon discovering the bag, and I was taken to the police station and was told I could be charged with possession of paraphernalia. The cop also took my phone and said he was going to send it to a lab to be searched. I signed a paper giving my permission to do so because he made it out to be that that would be the only way I would get my phone back. Is it legal for him to take my phone and when will it be returned? Also, there are pictures of weed on my phone and messages related to purchasing weed, is that grounds for more charges?

A: The police can charge you for possession of a controlled substance, a Misdemeanor, for the residue in the bag and for possession of paraphernalia, just for the bag. The officer taking your cell phone was probably just a way to get you to agree to a search. He probably wouldn’t expend lab fees on a case involving marijuana residue. A lawyer should review the case. You may or may not have a defense but an experienced lawyer may get you out of this with no record.

What sentence will I get for Prostitution charges?

Q: I’m going to court in a month for a prostitution charge, first offense misdemeanor 3.Chances of jail? I got in trouble 8 years ago, completely unrelated to prostitution. My only record , plead down to criminal mischief . I recently got busted for my first offense prostitution charge . I had put up an ad on an escort website . I never mentioned ANY acts in any ad, or email . I was detained and searched (nobody told me why I was being searched or what for) without being read Miranda rights. I never agreed to specific acts, I told the undercover the money was for my TIME and I never touched the money. And, nothing was found in my home; no drugs, no adult products, nothing. What are the chances of jail time and pleading down to a disorderly for my record because i cannot have the P word on my record?

A:You need to hire a lawyer to discuss all of the details-your version and what the police report says. In our county, prostitution charges generally lead to probation, unless there is a significant criminal history, which you say you don’t have. If you were my client I would first look how strong your defense is in order to gauge the chances of obtaining a not-guilty verdict and just as importantly to be used as a bargaining tool with the DA to push them ot withdraw or reduce the charges. If it was not possible to win the case, I would try to have the charges withdrawn in exchange for your completing counseling. My next plan would be to have the case worked out to a summary level offense such as a Disorderly Conduct, which you can expunge five years from now if you are not arrested again. By the way, Miranda warnings do not have to be read unless you are interrogated.

HOW DO I PROVE THEY DID NOT READ MY MIRANDA RIGHTS TO ME?

Q: How do I prove that I was not properly mirandized? I got pulled over last night for driving under the influence of alcohol, when they officer placed me under arrest he did not mirandize me. How do I prove this? What if I’m wrong and was just so panicked I didn’t hear it?

A: Police don’t have to read Miranda warnings to you when they arrest you. Miranda warnings are only required to be read if the police interrogate you. If the police took you to the station and then began questioning you, Miranda rights need to be given. The police can handcuff you, arrest you and jail you without Miranda rights being read to you. If you have been arrested, I suggest that you speak to an attorney before your Preliminary Hearing.

SON CITED FOR UNDERAGE DRINKING. SHOULD WE PLEAD?

Q: My son was caught underage drinking on a college campus. He was not breathalyzed, he admitted he drank. Can he be charged? Public safety supposedly questioned my son and friends. Three of them admitted to drinking, the others did not. They were told possible underage drinking charge or noise violation would be the outcome. We have to wait until the paperwork is mailed to us. Should I get a lawyer?

 

A: Yes, he can be charged with Possession, Consumption or Transportation of Alcohol under section 6308 of the crimes code. Hire a local lawyer. The lawyer will know different ways to ultimately get the case dismissed so your son can leave this event without a criminal record. Otherwise, this offense, although only a summary level crime, will stay on his record for 5 years and he can only expunge it if he has been arrest free in that 5 years. In addition, he will face a driver’s license suspension from PennDOT, if he pleads or is found guilty.

I REFUSED A BREATHALYZER TEST, HOW LONG DO I LOSE MY DRIVER’S LICENSE?

Q: I was given a refusal to breathalyze by the cop, reckless driving and a DUI how long am I likely to lose my license.

A: If you are ARD (Accelerated Rehabilitative Disposition) eligible, you will receive a 60 day license suspension on the DUI. If you do not receive ARD, you will receive an 18 month suspension on the DUI. PennDOT will suspend it another year for the refusal. If you plead guilty to the Reckless Driving, you will receive a 6 month suspension from PennDOT. I advise hiring an attorney to mitigate your damages.

EX HAD MY CAR TOWED, WHAT CAN I DO?

Q: My car was towed from my place of employment by someone for no reason. Police will not help me. I believe it is my ex-boyfriend but have no proof. My car was parked in a secured employee parking lot and the people at the place where I work. He let them tow my car without paperwork. He works there too. They laughed at me and told me I was stupid. I went to police and they told me that the car is not stolen as he was cosigner on the car. I need help here, everything I own was in that car including my military paperwork from the national guard. I am a single mom and all of my 2 year old son’s belongings were in the car too including his car seat. We had just moved everything from my mother’s house and I had not unpacked the car yet. I thought it would be safe as the parking lot has a security guard and is for employees only.

A: As boy friend and girl friend with mutual ownership of a car, you have no protection of the Divorce Code as you are not married. Obviously a criminal case is weakened by the fact that you both of you own the car. You can talk the police to see if they will file criminal charges like harassment. If not, you can go to the local District Justice on a day when the Assistant DA is there and see if they will accept a private criminal complaint. You can also ask the police if they will file a Protection from Abuse Petition for you. If not, you can go to the Family Division and see if you can file one on your own. You have a problem in that you don’t have good proof that it was him. You need to start building proof for going forward. Keep records and a log of these events to build your case in the future if charges or a PFA cannot be filed this time.