Tag Archives: MARIJUANA

Can a DUI dismissed if they bruised your vein when taking blood test?

Q: Hi. I got pulled over for a traffic stop and the car smelled like marijuana. They wrote me a citation and they were going to let me go but the passenger in the back seat threw up out the window, so they made me stay and get out the car for a sobriety test. They arrested me and took me to get a blood test. (McKeesport, PA)

A: Sure. And not only can you get your case dismissed, but the police must give you a written apology and take you to breakfast! No, not so. I know of no bruised vein defense. If you feel there was something amiss with your blood draw, you can always have your attorney consult review the tests and if warranted, consult with a forensic expert to review the results.

Can a DUI dismissed if they bruised your vein when taking blood test?

Q: Hi. I got pulled over for a traffic stop and the car smelled like marijuana. They wrote me a citation and they were going to let me go but the passenger in the back seat threw up out the window, so they made me stay and get out the car for a sobriety test. They arrested me and took me to get a blood test. (McKeesport, PA)

A: Sure. And not only can you get your case dismissed, but the police must give you a written apology and take you to breakfast! No, not so. I know of no bruised vein defense. If you feel there was something amiss with your blood draw, you can always have your attorney consult review the tests and if warranted, consult with a forensic expert to review the results.

Can they take child if marijuana in her system?

Q: Since it’s 2018 and marijuana is legalized in most States as recreational and medical, will they still take the child if she is born with marijuana in their system? I am asking for a friend. (Forest Hills, PA)

A: Marijuana is still illegal in PA. CYF can remove a child with drugs in her system at birth, especially where there are other signs of parental abuse or neglect. I think the issue is more complicated and not so black and white if the mother has a medical marijuana card, but CYF can still remove. I would suggest that your friend obtain a parent advocate attorney.

Sold 6.5 grams of marijuana and got a felony

Q: This happened 10 years ago when I attended Penn State. I have had no trouble since. Even the D.A. later said “usually you get a choice of either a misdemeanor and a few months of jail or a felony and no jail time. Well he was the D.A., so I am sure he did not have my interest foremost in his mind. When I got sentenced his assistant DA was the one at my case. I served my sentence but now the felony is ruining my chances of a good life. How can they give me a felony if the guidelines say a misdemeanor for anything under 30g’s? What can I do? (Monroeville, PA)

A:  It sounds like you pleaded guilty to a felony for delivery. Regardless of the amount, a delivery is a delivery and always a felony. I don’t practice in your county and in my county, this case probably would have been worked out to a misdemeanor or even a summary. Since this happened 10 years ago, you have missed your appeal deadline of 30 days and your rights under the PA Post Conviction Relief Act, which require filing within one-year of conviction. Unfortunately, your only option is a pardon.

When is a search illegal in PA?

Q: I was pulled over. The cop said my plate was a motorcycle plate. I called 911 while being pulled over. Thus, the whole conversation was being recorded by 911. The dispatcher came back on with the right information for vehicle and plate. Cop put in a letter “o” instead of a number “0”. I tried telling this cop this. He kept screaming and yelling at me. He gave me back my license. I asked, am I going to get an apology? He snatched my phone and pulled me from my car. Placed handcuffs on me. Searched my car. Searched me and found a dime bag of weed on me. Never read me my rights. Impounded my car. He roughed me up. I don’t smoke. He planted this weed in my change pocket of my jeans. I am thinking about getting an attorney for violation of my civil rights. Yes, I’m black. They were white cops and very racist. (Pittsburgh, PA)

A: A search is illegal when the judge says it is and throws the evidence out. Although we all know race can be a factor with police, this officer probably would have done the same thing if you were Casper the Friendly Ghost. Your comment no doubt aggravated the situation, especially if he was not in a good mood to begin with. You might as well have told him he had no probable cause or made a statement about him smelling like pork or donuts. The first issue was if there was PC to seize your body and arrest you. He will likely say he had the right to arrest you because you were disorderly. The second issue is whether he had probable cause to reach in your pockets and pull the weed out. It is likely he will say you were under arrest first, and then he felt your pocket for a pat down and it felt like a baggie of weed under the plain feel doctrine. I predict he will offer you a plea deal to a summary Disorderly Conduct at the Preliminary Hearing if you do not have an attitude at the preliminary hearing. If you want to defend this, it will be tough and a long journey for you. You will need a lawyer willing to go on the ride with you. You need to discuss this with an experienced criminal defense attorney.

Can I beat this?

Q: I was pulled over for out registration and police call tow truck driver for a tow. Police officer said he would take inventory of car so I could grab what I need but never did because he also was responding to a disable tractor trailer. I asked him to grab my girlfriend’s wallet. The cop goes into car lifts the center console and grabs it but I never got it. Tow truck pulls up. Tow driver was about to load car then. He opens driver side door reaches in. Then flags down officer and walks him over to say that there was a bag of marijuana on the floor. I am getting charged. (Pittsburgh, PA)

A: You have a Fourth Amendment right against illegal searches. However, here it sounds like a tow truck driver alleges to have found the marijuana while performing his job and in in plain view. If the tow truck driver had a legitimate reason to be in the car and the marijuana is in plain view, you will have no Fourth Amendment protection. If that is what the tow truck driver will testify to, you may have a problem. The marijuana belongs to either you, your girlfriend or was planted by the cop or tow truck driver. The latter two are unlikely and hard to prove. The tow truck driver is a necessary witness. If you want to fight this, I would hire a lawyer for the preliminary hearing to make sure the tow truck driver appears and to cross examine him on the details. If this is a small amount of marijuana and you have no record, you may be able to get out of this with no conviction with the guidance of a good attorney.

Can a felon live in a house with guns?

Q: He has been convicted of burglary, criminal conspiracy, theft by unlawful taking, receiving stolen property felony 2 and felon 3 and lives with his parents who have multiple guns in a safe His mother keeps one in her purse and father keeps one next to his bed. He also regularly smokes weed and recently took up drinking again. Within the last couple months, he has posted three videos to his social media of him shooting a gun. Is it legal for him to live there with the one being accessible to him. He’s about to get some custody back of his kids and have them in this home. (Pittsburgh, PA)

A:  If smoking weed and drinking are prohibited by the terms of his parole or probation, he is in violation of parole or probation. It is illegal to smoke marijuana, at least currently. As for the guns, as a convicted felon, he would be prohibited from possessing a gun by PA and Federal firearms statutes.

Can my friends be issued a subpoena?

Q: My three friends and I were caught in a car with a bookbag that had marijuana and marijuana related paraphernalia in it. The car was not turned on or moving. It was just really cold and windy so we got in the car to smoke. I took full responsibility and my friends weren’t charged. It’s been over a month and I haven’t been charged yet, but I know it’s coming. Is there a chance my friends will get subpoenaed once I get charged?

A: Your friends may likely be arrested with you, assuming the officer took their information. Since you took the blame they may not be. It is up to the officer. If there is evidence of MJ being smoked in the car, there is a greater chance all will be arrested through the summons process. Tell your parents and have them get you a lawyer. There may be a defense here in lack of probable cause and if not there are other options than pleading guilty so you can avoid a criminal conviction.

Can police search my place like this?

Q: Police found three roaches, a clip and a pack of papers. Did they have a legal search? They were looking for someone and I thought I had to let them in. So, I let them come in, There was like five of them pounding on my door. They found the roaches in my ashtray, next to my bed. They charged me with possession of small amount and drug paraphernalia. I have a district justice hearing in two weeks and I am freaking out That was in July of 2014 and I just now got the charges.

A: Yes, they can take that long to charge you. If you let them in and the contraband was observed in plain view, you have a problem. However, I would review the entire case with a local criminal attorney who is adept in search and seizure law for a thorough opinion. Also, if you are a first offender, you can get out of this with no record. An attorney can advise you on this.

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.