Category Archives: Uncategorized

Do the police still need a warrant in PA? for DUI blood testing?

Q: My son was pulled over for traffic stop. Then the police cited him for DUI. They took him to the hospital to do a blood test which he consented to. They also tested his blood for other drugs which he didn’t know at the time. He was clean of all drugs just the alcohol came back as he was over the limit. Do they still need a warrant for this under the new US Supreme Court law of the 4th Amendment and the state of PA to draw a blood test? (Meadville, PA)

A: Yes, after Birchfield v. North Dakota which ruled that police need a warrant to obtain blood, the PA Department of Transportation changed its O’Connell warning form. As the law currently stands post-Birchfiled, police need consent from a DUI suspect. If not, they must get a warrant. Given the fact that PA has such a strict penalty for refusing to consent to chemical testing (one-year license suspension) most driver’s consent to blood or breath testing. I know I would.

Is a party’s signature needed to remove her from a deed?

Q: My 93-year-old mom was coerced in Feb 2017 by my sister to sign a quit claim deed adding her to her home. Although done in a lawyer’s office, he nor a notary witnesses the signatures. No money or consideration made either. (Bethel Park, PA)

A: If your mother was competent to sign the deed, and the deed is legally correct, the transfer is valid. If the deed is valid and your sister is on the deed as a grantee, she must sign any new deed. The exception to this is if you can get her off the deed by court order as a result of successfully challenging the deed which is difficult to do. In PA deeds must be witnessed and notarized to be accepted for recording.

I recently received Criminal Complaint with several inconsistencies.

Q: I was pulled over and received a police criminal complaint in the mail. I did everything by the book when I was pulled over. They have my name wrong multiple times, the year of my vehicle and there are inconsistencies with the time of the incident. Also, they have that I had told them that I do not have proof of insurance, but I do and when I told him it would take me a minute to find it. They told me not to worry about it and in the report, they have that I did not have it whatsoever, but that is not part of the charges, so it may be irrelevant. (Monroeville, PA)

A: Mistakes and typos in legal documents, believe it or not, are not unusual. However, I would note these inconsistencies and tell them to your lawyer. Proof of insurance is not really an issue if you were not charged but bring proof of insurance to the hearing in case it is mentioned.

How can I be removed as guardian?

Q: I am permanent guardian of the person and estate for a 50-year-old adult son with mental illness. However, he can and has acted independently to get jobs and credit cards. It has become almost impossible to track his spending and I question if he is legally incapacitated. At I minimum I cannot handle the guardianship any more. I also receive no compensation for it. He is no longer under the auspices of the mental health system but is in jail with a potential mental health commitment for competency. (Pittsburgh, PA)

A: If you have been appointed guardian of his person and estate, you can petition the court to appoint a successor guardian. Unfortunately, you will need an attorney to do this. You might be able to find an agency to take over but without knowing more, I am not sure what agency would accept him for services. If an agency would step in, they may be able to handle petitioning the court to have you removed and replaced. The interest of an agency will increase if he is collecting disability or if there is some other source of income for him.

Can I have a felony warrant for a traffic accident with injury under suspended license?

Q: I was recently involved in a traffic accident involving injury while under suspended license. I was free to leave the scene. I have received the police report and that’s it. My father received a phone call from the sheriff looking for me with a felony warrant. Why is this and what steps should I take? (Pittsburgh, PA)

A: Because your actions arise to felony charges in PA. To be charged with a Felony 1 in these leaving the scene of an accident cases, there needs to be serious bodily injury. The police often charge this if there is just bodily injury, because it is not known at the time they file the charges if the victim has incurred serious bodily injury or not.
3742. Accidents involving death or personal injury.
(a) General rule.–The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744(relating to duty to give information and render aid). Every stop shall be made without obstructing traffic more than is necessary.
(b) Penalties. —
(1) Except as otherwise provided in this section, any person violating this section commits a misdemeanor of the first degree.
Also, if you are operating a motor vehicle and have an accident when you are not licensed, i.e., suspended, revoked, etc., you can be charged with a Felony 3.
Do not make statements to the police and get yourself an attorney.

How can get my father’s medical records after his death?

Q: My dad fell and hurt his foot. He called an EMPLOYEE. She took him to the hospital a day later, said she was his daughter. The hospital said he was not capable of making good decisions. The next day she came by the house woke him up from sleeping off a hangover. He signed a POA to her for health care. Now this caregiver is buying him a case of liquor a week. Since then she has changed his living trust three times, lied to him about cars, bank accounts. Everything was in trust and 6 weeks before his death she did it again. Now she is beneficiary and has disinherited my sister and me. I am living in his house and I have nowhere to go, she wants me out. We are fighting it. I am not allowed to get his medical records that prove I am right because she is the POA. she is spending all his money and has taken over his company for 4 years now. She has changed lawyers 3 or 4 times. He was severe alcoholic. We have won the autopsy request, but the results won’t be back for 12 weeks. It is a classic elder abuse case- financial, physical, and emotional. He passed 6/6/2018 and we need help. (Fountain Valley, CA)

A: The POA ceased being operational when he passed. You describe a nightmare scenario. You need an attorney. If you find one, he or she will need to file in court for an order for the employee who was his agent under a POA to account for all his money during her time as fiduciary. If no executor or trustee is appointed, you can petition to be one. If the employee is his trustee or executor, you can petition to have her removed and you appointed. This is a tremendous amount of work and is essentially prosecuting a civil fraud case. You will need a seasoned litigation attorney with elder law experience or access to an elder law attorney as an associate or in the same firm.

Can my fiancé sign guardianship of his daughter over to me?

Q: My fiancé had a son with a woman. We cannot get ahold of she has not seen the boy since the day he was born. My fiancé is going away (upstate as they say) for a year or so. I need to get him into my guardianship or custody. How do we do that? (Pittsburgh, PA)

A: One way, perhaps the easiest way, would be to file a motion for temporary custody in the Family Division. You would draft a motion in which you tell the judge the circumstances and ask to have temporary custody, while the father is away. You would have to serve all parties of interest with a copy before you present it to the Family Division Motion’s Judge. Parties of interest would obviously be mother and any person’s related by blood including parents and siblings of the mother, if you know who they are and how to reach them. This will also include family members of the father. If you have notified these parties of interest ahead of time as required by the Civil Rules, and they do not appear to object at the motion, it should be granted. You should hire an attorney to do this and if you cannot afford one, go to the Family Division at 440 Ross Street and ask to see the pro se motions clerk for help. They can guide you through the process of doing it on your own.

Can I hire a lawyer to get my License unsuspended?

Q: I have term driver’s licenses suspension lasting till 2022 for failure to respond to traffic citations and driving with a suspended license in the state of PA (which I’ve just about paid off). I’m eligible for a bread and butter license based off the information that was sent to me from the DMV. Can I hire a lawyer to get my license unsuspended or at least assure getting a bread and butter license? (Pittsburgh, PA)

A: I don’t think you can get an order of court to “unsuspend” a driver’s license suspension, unless you file a timely appeal of the underlying offense or appeal the PennDOT suspension, and win. I think your remedy is the OLL (Occupational Limited License) or as you call, bread and butter licenses, process. You can go to PennDOT’s website, download the form and try it on your own. You can always hire an attorney to help you out, if needed. You should also consider getting your driver’s history and determining to whom you owe fines and/ or restitution and pay off what you can. After you pay a fine or restitution amount in full, you can send the payment receipt (usually from the District Justice or Clerk of Courts) to PennDot and they will remove it from your record.

Can my aunt contest my grandmother’s life estate?

Q: I have lived with my grandmother for over 18 years now and raised both of my children here with her. When her children found out she left the house to me as a life estate they stopped talking to her. She pays all the bills in turn I take care of her and promised to never leave her and to never allow her to be put in a home. She wants to die in her own house. My family and I care for her every day. We do breakfast, lunch dinner, medicine, showers, changing her diapers, anything and everything that she needs. We are the only ones here to help. They want nothing to do with her and only contact her by phone occasionally. They send her cards in the mail and they live 2 miles away. Sometimes one of her other granddaughters will come here just to take her to the bank to get money. They want to wait until she passes because they know while she’s alive she will fight for me and what she wants for us. But she is 97 and shouldn’t have to go through this. It stresses her out thinking they are going to try to take away the home we have built. is there anything we can do to ease her mind and make sure that these people cannot hurt us anymore? (Penn Hills, PA)

A: It is difficult to tell who has the life estate, you or your grandmother. I strongly suggest that you and your grandmother meet with an elder lawyer or estate lawyer who can look at this deed and advise you as to what your options are. If she has the life estate, the normally will house transfer to someone upon her death, hopefully you. If you have the life estate you can live there until you die, then the house transfers to someone else.

Can I get a gun in PA with a 30-year old expunged arson conviction in CA?

Q: I was convicted of Arson 30 years ago at age 19. Received 3 years of probation with 1-year jail time. I turned myself in, it was my first offense and I had a good lawyer. I had my record expunged 25 years ago in CA (1203.4). I obtained R.N. license in CA and PA and still practice in PA. I serve as licensed Minister in local church. Will PA grant me license to own and carry? Last employment change to work in hospital had the record on it, with notice of expungement included. (Wexford, PA)

A: Expunged, at least in PA, means that the criminal records have been deleted and destroyed and they should not show on your criminal history. Only certain types of arrest records and conviction records are eligible to be expunged in PA. My advice to you, and for anyone I do expungement work for, is to obtain your criminal history from the PA State Police. If your criminal history shows this crime, then you can begin the inquiry as to why, if it was supposedly expunged. Did the court administration in CA just not send the order to expunge out, or, does PA not acknowledge an expungement of this category of crime from another state when it is not eligible to be expunged in PA. I would have to inquire myself and I would start by obtaining your criminal history. My concern is that because the crime of Arson is not eligible to be expunged in PA, you may have a problem. However, I would inquire before throwing in the proverbial towel.