Category Archives: Criminal Law

WILL I BE DRUG TESTED IN COURT?

Q: Will I have a drug test on my court date for a DUI of minor and paraphernalia? This is my first offense with the law. I am 20 years old, currently charged with DUI of .183 and paraphernalia of pipe and pill bottle “smelling of weed”. I will be hiring an attorney soon but I’m worried about if the drug test will be on the given court date or after I am granted ARD? Again I live in PA and I am a minor and they never found cannabis, just the scent in a bottle and the glass pipe.

A: Drug testing in court in Allegheny County can only be ordered by a Judge. It would be rare to have drug testing ordered at the Preliminary Hearing level. Some judges in the Court of Common Pleas of Allegheny County, Criminal Division, use drug testing regularly, for example, drug court or DUI court. However, among the other judges, there are only several that screen defendants randomly. They do this to people they believe have entered the courtroom under the influence and who are facing drug or alcohol related offenses. The judge may ask the person on the record if they have used drugs or consumed alcohol in the past 24 hours. The person takes a risk if they lie. The judge can order the person’s urine to be tested in the court house. The results are reported to the judge within minutes. If the judge chooses, the bond is revoked and the person is whisked away by a Deputy Sheriff to accommodations in the Allegheny County Jail. The judge may let the person sit in the jail as long as he or she wants. In these situations, an honest answer will provide a better chance of avoiding jail as lying to a judge is considered worse than being under the influence. I doubt if this will happen to you based on this being your first offense and you are probably looking at ARD. However, as a word of caution, do not come to court under the influence or even with clothing that smells like marijuana.

WILL JUDGE JAIL ME FOR NOT PAYING RESTITUTION?

Q: I have a hearing in a few days for violation of probation for restitution. I have always tried to give something as well making payments of $500-$900 during tax time. I am a single mother of four and have no income except from my part time job. Will they send me to jail that day I am so scared?

A.I really don’t know enough about your case to advise you as to whether the judge will put you in jail. If you pay something per month, or at least have made some payments, and, if you have not violated your probation in a major way like hot urine tests, new arrests, etc., the judge will probably be sympathetic to your situation. Bring proof of payments to the hearing. I would also bring proof of income and proof of household expenses and children’s unusual expenses to the hearing.

SHOULD I PLEAD GUILTY FOR PUBLIC URINATION?

Q. Can I get a public urination citation expunged? Hello, I’m a 19 year old student attending Penn State University. A couple weekends ago I had too much to drink and while I was in an apartment building, I decided to urinate in the stairwell and in the laundry room and it was all documented on video footage. I just received the citation and plan pleading guilty and paying the fine because I don’t think I can fight it. It’s my first criminal offense besides a speeding ticket. If I remain out of trouble until I turn 21, could I get this charge expunged from my permanent record?

A. If you plead guilty to this or are found guilty, you will have to wait until 5 years of arrest free behavior until you can expunge this conviction. You really should get an attorney. Most of the time, an attorney can help to avoid a conviction for you, being your first offense. You don’t need a conviction on your record for 5 years. It will most assuredly be a negative impact on your schooling and job search.

I PAID BACK THE BAD CHECKS, WHY NO DISMISSAL?

Q. I was charged with writing bad checks. I paid the checks. At the primarily hearing, the DA would not reduce the charges or dismiss. I have never been charged with anything in the past. My attorney wants me to go through the ARD program. It was 4 checks the first and the 4th were never deposited. As for the other two, I was at fault. The police officer would not even speak to my attorney. I feel like I did not get a fair hearing. Now, it will cost me more money that I don’t have. I am wondering if there is anything I can do to have charges dismissed. I can get letters stating I am a law abiding citizen that just make a stupid mistake. People who are real crooks get away with things where I who made a mistake and pay the extreme.

A. It is still a crime even if you pay the money back. The attorney may be communicating the only deal available which is Accelerated Rehabilitative Disposition (ARD). I will assume for the purposes of my answer that you have no defense for trial. Sometimes these cases can be worked out at the Preliminary Hearing for a dismissal if restitution is made. Apparently, that was not satisfactory to the police officer or the victim or the DA, or some or all of them. Now, it sounds like you have no other option but ARD. Be aware that ARD is discretionary with the DA and you have no right to it. I assume your case was held for court and now will be at the Common Pleas Court level. You still have a chance of getting a dismissal at that level with full restitution. Your attorney can ask again, but, if ARD is the only offer from the DA, that is your only option.

Can my son be charged with underage drinking just for being at a party?

Q. Advise is needed for an Under Age Drinking citation. My teenage son blew .0 on the Breathalyzer. He was at an underage party . The police were called (we believe by other teens that were asked to leave ) . When the police arrived another teen was seen in the door way and was unresponsive so the police entered the home . All of the teens were given Breathalyzer testing. My son blew a .0 (dad was present) and was released to his father. At that time the police indicated that he would not be cited. He just received a citation & is charged with consuming alcoholic beverages. Should we contact the police before his hearing, is it possible that the citation was issued in error? Can we get a copy of his Breathalyzer test? Can he still be charged with underage drinking if he blew .0? Can he be charged with something else since he was at the party even though he wasn’t drinking?

A: In order for him to be guilty, there must be more evidence than him just being present at the party. The statute reads, purchase, consumption, possession or transportation of alcohol. If he is guilty of any of these, he can be cited and convicted. There needs to be police or other witnesses testify that your son purchased, transported, consumed or possessed the alcohol or made it available as it seems consumption is out due to his preliminary breath test. I don’t know all the facts here and you should review them with an attorney. If there is evidence that he physically possessed or purchased the alcohol or hosted or organized a drinking party, he may be convicted. If your attorney thinks there is evidence against him and having a hearing is risky, he may be eligible for a first time offender’s program. Bear in mind, these offenses carry driver’s license suspensions if you are found guilty.

WHAT IS DUI LOOK-BACK PERIOD IN PA?

Q. Does anyone know if the look back period for a DUI in PA is from arrest date to next arrest date or from conviction date to conviction date?

A. The DUI look back is from the date of the conviction to the date of the new arrest. The look back period is 10 years. If you have made 10 years, your recent DUI will be considered a first DUI, for the purposes of sentencing. You also may qualify for Accelerated Rehabilitative Disposition, otherwise ARD, a first offender’s program, if there is nothing else precluding you from the program. There are exceptions. Be aware of bumped-up license suspension periods for higher blood alcohol content, drugs in your blood system, accidents or being a minor.

HOW LONG CAN SOMEONE SIT IN JAIL ON A PROBATION VIOLATION?

Q. How long does a person in jail for violating his probation with a new charge have to stay in prison if pleading not guilty? My friend is in jail for violating his probation with a new charge. He is not pleading guilty, so does he have to stay in prison and his probation officer not lift the detainer? If, that answer is yes, what is the due process and what happens with ‘innocent until proven guilty”. I feel like many people feel obligated to plead guilty and take probation, parole, or whatever deal is offered in order to get out of jail instead of fighting the charges.

A. Yes,  the judge whose sentence of probation he allegedly violated can keep him detained in jail until the new charges are resolved. After the new charges are disposed of, the probation officer will schedule a probation violation hearing before the probation judge. Seek an opinion from a local attorney on the chances of the judge lifting the detainer or transferring to house arrest if the attorney files a Petition to Lift Detainer, prior to the new charges being disposed of.

WHAT IS SENTENCE FOR MY FIRST RETAIL THEFT OFFENSE?

Q. Do I have a chance of going to jail for retail theft? I was caught shoplifting. Total was $180. This is my first time stealing from a retail store. I got fingerprinted and everything. Now I have a preliminary hearing next week. I’m really scared and nervous. I got a public defender. What should I expect at the court? Do I have a chance of going to jail or can they give me some community service and a fine?

A: Unless you have a history or retail thefts, jail is not likely. If this is your first offense, have your Public Defender look into a first time offender program for Retail Theft to see if your Public Defender can negotiate a withdrawal of the charge with the District Attorney’s Office.

SHOULD I PAY THE CIVIL DEMAND FOR MY RETAIL THEFT CHARGES?

Q. Do I need to pay a “Civil Demand” from Wal-Mart’s lawyer?Last year, on approximately May 28th, 2012, I made the big mistake of stealing from Wal-Mart. It was a 422.00 bathing suit, and looking back now I realize it was a stupid idea. This was my first ever offense. They took me into the front of the store and called the police. I had to pay a fine from the court for $300, which I completely paid off back in November (payment plan). Today I received a letter from some law offices stating that I needed to pay $150 in civil restitution. Do I have to pay this civil demand? Why would they send it almost 9 months after the incident? Like I said, I paid my fine with the court and the law has not bothered me about it. I was always on time with my payments. And now suddenly I have a $150 demand for “damages”. Help please?

A: You were charged with a misdemeanor which obviously they lowered to a summary offense which is punishable up to a $300.00 fine or 90 days in jail and you received the fine. If this was your first offense, this is unfortunate as an attorney may have been able to get the charges reduced by getting the DA to agree to a diversionary program. If it was not your first offense or the DA would not offer a program, then the deal you received was fair. As far as the civil judgment, do not pay it, especially if the criminal case was resolved. It is most likely from some out of state law office who is not going to hire an Allegheny County attorney to sue you for a couple hundred dollars. These companies or law firms that provide this service for the department store send these letters to everyone who is arrested by the store they have contracted. Most people that are charged feel it will somehow benefit their case and pay without first consulting with a lawyer.

SHOULD I PAY THE CIVIL DEMAND FOR MY RETAIL THEFT CHARGES?

Q. Do I need to pay a “Civil Demand” from Wal-Mart’s lawyer?Last year, on approximately May 28th, 2012, I made the big mistake of stealing from Wal-Mart. It was a 422.00 bathing suit, and looking back now I realize it was a stupid idea. This was my first ever offense. They took me into the front of the store and called the police. I had to pay a fine from the court for $300, which I completely paid off back in November (payment plan). Today I received a letter from some law offices stating that I needed to pay $150 in civil restitution. Do I have to pay this civil demand? Why would they send it almost 9 months after the incident? Like I said, I paid my fine with the court and the law has not bothered me about it. I was always on time with my payments. And now suddenly I have a $150 demand for “damages”. Help please?

A: You were charged with a misdemeanor which obviously they lowered to a summary offense which is punishable up to $300.00 or 90 days in jail and you received the fine. If this was your first offense, this is unfortunate as an attorney may have been able to get the charges reduced by getting the DA to agree to a diversionary program. If it was not your first offense or the DA would not offer a program, then the deal you received was fair. As far as the civil judgment, do not pay it. It is most likely from some out of state law office who is not going to hire an Allegheny County attorney to sue you for a couple hundred dollars