Tag Archives: Criminal Law

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.

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

PUBLIC INTOXICATION ON PRIVATE PROPERTY?

Q: If I am arrested for public drunkenness and disorderly conduct, can I fight it? I was on private property, was not read Miranda rights.

A: Miranda warnings do not apply if you were not interrogated. Yes, you can fight the case. You should talk to an attorney as there may be an alternative available for you. If you fight the case, hire a court reporter to record the testimony if it is not electronically recorded by the court. Generally, you cannot be convicted of public intoxication if the conduct was not done in public. If your actions on the private property were visible to the public, or audible to the public, then that is another story.

Can my son be arrested for having $15K in his home while on parole?

Q. My son is on parole. He was working for a man doing renovations. The boss had marijuana shipped from another state to the empty house next to my sons home. When the boss went to get pkg police chased him and arrested him. He called my son during the car chase never telling him what was going on just to pick him up at the auto repair shop down the hill. When my son got there from the job site the boss was in hand cuffs etc. The police asked if they could search my sons home wherein they stopped him at the auto repair place. He said no but they said they would call his parole officer for permission so my son agreed. At his home the only thing found was approximately 15k which he has been saving over a period of 7 years. My son was not arrested and no charges at this point. They took money.

A. If the only evidence against your son is that 1) he knows the boss, 2) he lives near the house the drugs were found in, 3) he had 15k in his house and 4) he was present at the shop when the boss was arrested, he shouldn’t be arrested. If the boss implicates him, or other witnesses implicate he and the boss as co-conspirators, then it is possible he may get arrested. The police should have given your son a receipt for his money. If the police don’t arrest him after a reasonable amount of time, you can petition the court to return the money. Your son needs to see an attorney as soon as possible and not make statements to the police.

CAN COPS SEARCH HOUSE BASED ON ARRESTED PERSON’S WORD?

Q. Can the police search your house based on a person saying that you have something illegal in it? A car was being searched due to an attempted drug sale. Three people were in the car and they found a small amount of heroin. The driver, which is a user, had paraphernalia on her person and when she got arrested she told the police that the other two people who were in the car were drug dealers and told the police where they lived. The police searched their residence and found illegal possessions. Is it legal for the police to search their house based off a scared, user’s statement?

A. Great question! Search and seizure law is complicated and tricky. We defense attorneys start with the premise that every search of a dwelling must be done by warrant. This is what the PA and US Constitutions say. However, there are many exceptions and the law is always changing. In your situation it comes down to how reliable was the source of the information (the user who was arrested) and how reliable was it that after her information was given, drugs would be found in the residence at the time they searched it. The real issue is whether or not this witness was credible, and if not entirely credible, was there other corroborating evidence to establish her as credible? Credible enough to search a residence without a warrant? I am not so sure about that. I don’t know all the facts, but I think you should meet with an attorney who is good with suppression/search and seizure law to look closely at the facts. From this limited information it sounds like the search could be challenged. Make sure you have an attorney at your preliminary hearing and have the testimony recorded.

COPS FIND MARIJUANA IN BACK PACK, WHAT WILL HAPPEN?

Q: Me and some friends were caught smoking but after the fact so we were high but no evidence of weed. Then he pressures my other friend for consent to search the car and he did. But while doing that he went through my backpack found my visine and kept it. Then my other friend’s backpack was searched and the vial was discovered. I was free to go just without visine while my other friend was cuffed and drove to the station. What will my friend be charged with?

A: Your friend may have an illegal search issue and want to challenge the case. He would need to discuss the details and what is involved with a lawyer. As long as he is not charged with a felony possession with intent to deliver, he can probably receive a first time offender’s outcome, called Probation Without Verdict. If he accepts this, he is put on probation for a period of time, usually anywhere from 90 days to a year. If he doesn’t screw up in that period of probation, his arrest record will be expunged by the Commonwealth. There is also a chance for a withdrawal at the District Justice level if he completes a drug program, and if the DA and police are willing. An attorney can guide him through this.