Tag Archives: Criminal Law

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.

If blood comes back clear, will I still be charged with DUI?

Q: What are the limits for controlled substances Oxicodone, Percondan and Ambian? I was driving in the dark on unfamiliar road with no street lights and oncoming traffic with bright lights. My vision went double. I dropped a cigarette and reached for it. I fell down a flight of stairs 8 wks ago and still have black and blues on my face. I do take meds, some controlled, some not, but they taken earlier in the day, like 8 or 9 hrs before incident. Can I seriously be charged for taking prescribed meds?

A: You can, seriously. If you have controlled substances in your blood for which you have active prescriptions for, you can be charged if the laboratory test results can show that the levels were beyond the prescribed limit. This is difficult to do but can be done. The Commonwealth would add to this evidence the testimony of the police if your behavior was consistent with being under the influence. If you are charged, I would hire a lawyer to look closely at the blood test and maybe even petition the court to have your blood sample tested by an independent lab. Good cross examination of the Commonwealth’s “expert” at the preliminary hearing, if one is called, could really benefit you.

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.

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. 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 have not proof it was him. Some proof would help. 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.

WHAT DOES “DISPOSED ….DISMISSED” MEAN?

Q: What dose Disposed on 10/17/2012 as Dismissed – Diverted. I have a copy of a background check form Kentucky and I am not sure what that means? Does it effect my criminal record here in PA. (McKeesport, PA)

A: I am not exactly sure either as I practice law in PA. If I had to guess, it means the case was dismissed and the matter was diverted to a diversionary program for first time offenders which offers a lower penalty or no penalty at all. You need to contact the Kentucky attorney who represented you to confirm or call another attorney who practices in KY. You will need to do the expungement, if you are eligible in KY anyway.

Do I have a chance in fighting this DUI? I was parked and sober!

Q: I am getting charged with a DUI for a Schedule 1 controlled substance (marijuana). I was parked because I was lost and needed to use my GPS. A cop knocked on my window. My passenger had weed on her body, and he picked up the smell. I did not want to rat my friend out, so when the cop asked when I had last smoked marijuana, I answered truthfully and told him it was several hours before I started operating. He made me get out of the car, asked my name. I told him and offered him my license which was in my car. He refused to let me back in my car to retrieve it. He then conducted a field sobriety test, and failed me for my left eye not crossing in when he moved the pen towards my nose (after taking my glasses off). I was then arrested and taken for blood where I had residual THC. (Belle Vernon, PA)

A:  THC forensically found in your blood within 2 hours of driving a car is enough to meet the requirements of the DUI statute. While it seems unfair that you may have ingested marijuana two, three or four weeks prior to the blood test, and the metabolites have remained in your system, it is currently the law. In Allegheny, the laboratory sometimes tests for nanograms and if the nanograms detected are so ridiculously low, your attorney may, may, be able to convince the DA not to prosecute. You could always have your attorney file a motion to have the blood independently tested by another lab if that lab can distinguish nanograms and your results are so small that a jury may not convict you. Secondly, your statement will hurt you. If it was blurted out by you, and not a result of custodial interrogation without Miranda warnings, then you are stuck with it and it can and will be used against you as no one would normally make such an incriminating statement if not true. Lastly, lack of probable cause to stop a vehicle, or ask a citizen to step out of the vehicle, or seize the person’s blood, is always a challenge to prove, but a wonderful defense if you the right facts. I would have an attorney not only look at the blood tests but especially the facts to determine if there is a lack of probable cause to stop your vehicle and get you out of the car. Just sitting on the side of the road generally may not be sufficient probable cause to stop you. However, stopped on the berm of a busy road at 3 am, may be sufficient for the police to inquire as to your situation. There was a great case I used in the past on this probable cause issue, Commonwealth v. Dewitt (1992) , but I would need to research to see if it is still valid law. The other thing I would mention is that if this is your first offense, you may be eligible for ARD, which if you complete the program there will only be a 60 day license suspension, but more importantly, no jail time and no conviction on your record.

UNDERAGE DRINKING CHARGE. BEER IN MY TRUNK. SHOULD I PLEA?

Q: Is an underage correct? So I was at a frisbee tournament in Johnstown, PA and we had to get a hotel to stay overnight. The team was separated so that 21 year olds stayed with each other and everyone under stayed together. While watching the Penguins game, one of the 21 year olds came over to our room and asked me to take them to get beer because they had drank and didn’t want to drive. So I did, they put their beer in the trunk, then an undercover cop followed us back to the hotel from the beer store. The cop stopped me and charged me with an underage and confiscated my teammates’ beer. I hadn’t had anything to drink so I didn’t think that was the correct charge. I honestly didn’t know that I couldn’t transport alcohol, but he told me that was illegal. He also said I should have let my friends drive drunk, Soooooo.

A: The statute you are charged with, 6308, applies to consumption, possession and transportation. You are probably guilty of transportation. There is a driver’s license suspension if you are found guilty. You should review the case with an attorney, to determine if you have a defense, such as an illegal stop of the vehicle. If there a probable cause defense available to you, the attorney can advise whether you should pursue or not. If the defense exists, the attorney can use it to push the police for a better deal. If no defense is available to you, or if you don’t want to pursue it, the attorney can advise if a diversionary program can be made available by the district justice so you do not end up with a conviction. A diversionary program used in Allegheny County refers the minor to a course, which if successfully completed results in a dismissal.

SHOULD I FIGHT TOXIC DUMPING CHARGES?

Q: Can I defend myself against an illegal yard waste charge when there is an accuser whom did not actually see the incident and win? A gentleman driving towards me saw me folding a tarp with a friend, followed me later &contacted city that I was dumping. We were on the road to show friend where to ride 4 wheelers on old train tracks below & saw my tarp in the truck was loose. I received a letter stating I was fined $1000 for dumping with two pictures of yard waste. I went back to the road and couldn’t find the alleged dumping area but found 10 other areas of yard & construction waste dumped. We were told we could defend ourselves at district ct but would not be provided written accusations by city and could face higher fine of $5000 if lost and pay all court costs win or lose. The city states the man has no reason to lie and we have monetary reason to. All he saw was us folding a tarp. Do we have a chance of beating this?

A: Based solely on the way you describe it here, yes, it sounds like you may have a defense. You are being prosecuted on circumstantial evidence. Circumstantial evidence is not direct evidence like actual videotape or a witness actually seeing you committing a crime. In your case, you are seen with a truck and tarp, near where toxic waste has been discarded. You can be convicted on circumstantial evidence but frankly will have a better chance with a lawyer. If you a defense or you are truly not guilty, you should have your entire situation with an attorney-the police reports, your story, any corroborating evidence. Then, based on the advice of the attorney, you can make a legal determine if you want to fight the case.