Category Archives: Criminal Law

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.

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.

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.

PUBLIC INTOXICATION AND UNDERAGE DRINKING CHARGES

Q: What is the best course of action I could take to either have dismissed, or reduce the penalties of public intoxication charges? I am a 20 year old student at Penn State. I was riding the bus home when the driver made me get off. I was visibly intoxicated but I was not disrupting the peace or being disorderly. I’m assuming she called the cops before kicking me off the bus because the second I stepped off, the police were waiting. They breathalyzed me and I blew over a .20. They had me admitted to the hospital despite the fact that I requested not to be treated because I was now within walking distance of my apartment. They told me I would receive a citation in the mail for underage drinking, but when the citation came, there were actually two: one for the underage and another for public intoxication. I feel that the public intoxication charge was not justified. Is there anything I can do to help my situation?

A:            Get a lawyer. It sounds like the public intoxication is justified as you were in public.  But, often times in PA, District Justices offer a first time offenders program, or classes, for first time offenders. This way you will avoid having a conviction and a driver’s licenses suspension. There is a driver’s license suspension that PenDOT will issue if you are convicted of the underage. The lawyer will know how to get you out of this with minimal damage. There may be options to pleading guilty and I wouldn’t try this on your own.

I received a civil claim letter demanding 180 dollars. Do I have to pay it?

Q:I am 16 years old. I was caught shoplifting 30 dollars worth of merchandise. I was detained until someone came to pick me up, though no one came so they released me. No police were involved. I had to sign 2 or 3 papers, I was so nervous I didn’t read what I signed. They took down my info including my social security number. Yesterday, I received a civil claim letter demanding 180 dollars. Do I have to pay it? What happens if I don’t? I don’t have the money too.

A: These civil demands are generally from some out of town law firm who will not sue you in your local court over a $150 or $200 demand. Most attorneys advise to ignore them. However, there have been instances in which I had to be creative in persuading the store employee and DA into dropping the charges. In those situations, I used payment of the civil demand along with other things I had my client do before the hearing, as a justification for a dismissal. Payment of the civil demand, although not necessary, was one more positive factor weighing in favor of my client when I was able to convince the judge to dismiss the charges. I would say, do not rush to pay it and seek the advice of an attorney before doing so. The attorney can also advise you as to whether your case should be in juvenile court or not.

PAROLE VIOLATION-WILL I MAKE BOND?

Q: I violated my parole in PA can I get out on bond?

A: It is hard to tell what you are asking without more information. I will assume you are on parole and not probation, as there is a difference. Normally, you will have a Gagnon I hearing to determine if you should be held in jail pending a final hearing on whether or not you violated your parole, which is called a Gagnon II. If you are under jurisdiction of the PA Board of Probation and Parole, generally, your penalty will be more harsh and predictable. If you are still under jurisdiction of the judge who sentenced you, you may, may, have more flexibility in having an attorney petition the judge for relief such as alternative housing or electronic home monitoring. There is no bond with probation or parole violations. The way to get out of jail is to have either the PA Board of Probation and Parole, or the judge who sentenced you, whichever has jurisdiction, to grant you relief. This is normally done by having an attorney file a petition requesting such relief. Generally, filing such a motion with the PABPP is not worth it.

CAN A MINOR BE IDENTIFIED ON A FACIAL HAIR DESCRIPTION ONLY?

Q: Can a minor get convicted far assault and robbery because someone was robbed and gave police a description of just facial hair and height. And they picked up person fitting that description nothing else and because they had a charge in the pass the same.

A: While it is possible to be arrested on a weak or somewhat ambiguous identification provided to police, it is difficult to convict on a weak or ambiguous identification. If the police were on the fence about arresting him, the fact that he has priors may have give them and added reason to do so. This is not fair but it in reality, it happens. It would be important to have an attorney pin down the identification on the record at the preliminary hearing. It is crucial that he have an attorney represent him at every stage of the prosecution.

WILL .02 BREATHALYZER TEST KEEP ME IN JAIL ON PROBATION VIOLATION?

Q: I violated my parole in Pa with a .02% breathalyzer, can I get out on bond? My original sentence was 6 months house arrest with a home breathalyzer box. I’ve had 2 DUIs in the past both 1st offenses. I have never violated before no new charges. I live in West Virginia my house arrest was sent down here. My parole officer had me sent back to PA, even though PA stated they did not want me and to try and file for a faster hearing to get in and out.

A: If you are on probation or parole you can be detained and forced to sit in jail if your probation officer has probable cause to suspect that you violated your probation. Normally, an alleged probation violator is given a Gagnon I hearing to determine if he should be held in jail further. If he or she is held in jail, the next hearing is a Gagnon II to determine if he or she actually violated the probation terms and conditions . There are two ways a person can be released prior to the Gagnon I or Gagnon II hearing.  The first is if the probation officer makes the request to the court, which is often not likely. Secondly, you can hire counsel to petition the judge to lift the detainer and he is successful in convincing the judge you should be released from jail. There is no bond on a probation violation. It is the probation detainer that holds you in jail. If the case is reviewed by an attorney, he or she can determine if it is worth filing a motion.

PUBLIC URINATION-SHOULD I PLEAD GUILTY?

Q: Should I plead guilty or not guilty to public urination? I received a citation for public urination while very intoxicated in Pittsburgh, PA. I refused to sign the citation and would not give them my SSN. I started arguing with the cop but ultimately still got home with only a citation. What should I plea?

A: You should not plead guilty by checking the box on the reverse side of the subpoena and sending your money in. If you don’t have a criminal record, an attorney may help to get you out of this with no record. If not, a summary conviction will result in a criminal record and cannot be expunged until you have completed 5 years of arrest free behavior.