Individuals who fail to understand their constitution rights and limitations are usually in the worst position if and when they find themselves charged with a crime

Alfonso Gambone
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A Philadelphia criminal defense lawyer representing accused persons throughout Pennsylvania and New Jersey.

Spring is here and there is nothing that can ruin this great weather like a criminal charge! While most of my readers won’t run into any trouble, they may have a friend or a family member who doesn’t read my blog, my books, or watch my videos. As I have discussed in the past in my articles and books, individuals who fail to understand their constitution rights and limitations are usually in the worst position if and when they find themselves charged with a crime in Pennsylvania or New Jersey, where our firm defends accused persons.  While obviously there are a number of crimes that a person could be charged with, the majority of offenses that we see during the Spring Season pertain to the the illegal possession of drugs, narcotics, guns, firearms, and driving under the influence (DUI/DWI).


            Often these cases typically don’t involve violence but happen because a person failed to understand that their actions violated a law in Pennsylvania, New Jersey or both states! For example, people believe that many offenses occur because individuals intentionally choose to commit a crime. These 5 mistakes are areas that we most often see especially in the Spring


  1. Taking Prescription or Over The Counter Medication Before Getting on the Road to Visit Family and Friends


Most people believe that driving under the influence (DUI) or driving while intoxicated or impaired (DWI) only occurs when an individual has imbibed or consumed too much alcohol (.08 is the limit in PA &NJ) or an illegal narcotic or drug, like marijuana, heroin, PCP, or crack cocaine. This however, is not the law in any jurisdiction and the purpose of the DUI/DWI statutes is to protect the public from impaired drivers who aren’t able to safely operate a motor vehicle on the road.


Prescription medications, which your doctor prescribes legally to you or even an over the counter drug like Benadryl, can sometimes cause impairment.  You must read the label of the drug! When a person operates a motor vehicle under the influence of any substance that causes impairment, they commit a crime under the DUI/DWI statute.

Pennsylvania, like New Jersey, imposes mandatory minimum sentencing for these crimes and the law doesn’t distinguish between crack cocaine and Benadryl for the purposes of the mandatory minimum sentencing laws. While obviously the ingestion an illegal substance like crack cocaine, marijuana, or heroin, as opposed to a legally prescribed or over the counter drug, like Benadryl, will likely help an individual from receiving a harsher sentence than the mandatory minimum penalty, it isn’t a legal defense.


  1. Driving Through New Jersey with a Handgun


Graves Act Mandatory Minimum Sentences

I’ve written a number of articles on New Jersey’s Graves Act and the Garden State’s strict firearms laws, which exposed even, first time offenders to a mandatory minimum sentence. Unlike Pennsylvania, New Jersey doesn’t often issue permits to carry and an individual must satisfy a number of special criteria in order to carry outside of their home or place of business in the state. Please read my article on carrying in New Jersey for more information on this topic (“May Issue vs. a Shall Issue” Jurisdiction). New Jersey does not honor a Pennsylvania license to carry and any individual who enters the Garden State, even if it’s to drive through the state to reach their ultimate destination, potentially commits a felony level offense under the Graves Act in New Jersey. 


Traveling Through New Jersey With A Gun

If you must travel through New Jersey with a weapon, it must be unloaded and secured in a separate lock box or container with the ammunition in a separate compartment. While you are never obligated to give consent to a police officer or state trooper to search your vehicle, carrying the weapon in this manner will prevent you from committing a crime in the Garden State. Like DUI/DWI in New Jersey, a person who commits a crime under the Graves Act is exposed to mandatory minimum sentencing. Recently New Jersey enacted safety valve provisions which prevent a person from serving time in state prison following a conviction under this act; all of these programs are at the discretion of the prosecutor in that particular county.



It’s also important to understand that in many of these cases the prosecutors won’t offer pre-trial intervention (PTI), but rather a plea to a felony level offense, which simply allows a person to serve a probation sentence but still results in a criminal conviction that could seriously impact a person’s professional and educational opportunities.


  1. Hosting Parties where Alcohol is Served to Minors

During Spring and early summer months it is common for people to host parties at their homes for friends and family (pre memorial day barbeques are becoming more common.) While these are often casual events, the law doesn’t distinguish between a black tie affair held at your home and one where persons are sitting around a pool in your backyard wearing jeans and t-shirts.


New Jersey vs. Pennsylvania – Social Host Liability

New Jersey and Pennsylvania address these situations differently.  In Pennsylvania, social host liability applies to adults who serve alcohol to minors. Adults are responsible for the consequences of their own drinking but minors are the exception. New Jersey however doesn’t limit lawsuits to minors, but also allows adults to bring claims against social hosts if these individuals leave an event clearly intoxicated.  Violations of the social host law are not only civil matters but also criminal as well. In Pennsylvania a person who furnishes alcohol to a minor commits a misdemeanor of the 3rd degree. A misdemeanor of the 3rd degree is punishable by up to 1 year in jail and a fine of $2,500. The mandatory minimum fine in Pennsylvania is $1,000 in addition to a criminal record, which can negatively impact employment and other opportunities. In New Jersey, a person who commits this offense commits a disorderly person’s crime in the Garden State with a maximum penalty of 6 months in jail and a $1,000 fine.


  1. Refusing a Chemical Test (Blood or Breath) Following a Vehicle Stop


I’ve written so much on this topic and have even done videos on it as well. Refusing a chemical test WILL NOT  improve a DUI/DWI in Pennsylvania or New Jersey. The case of Birchfield v. North Dakota doesn’t change the constitutionality of a breath sample and only calls into question the blood draw. Even if a criminal court finds that blood is inadmissible during a prosecution, this Supreme Court decision does not affect a state’s ability to suspend a driver’s license under the civil sections of its DUI statute. Driving is a privilege and not a right and the results of a criminal prosecution are irrelevant.


What To Do If Stopped For DUI/DWI

If you’re stopped for suspicion of DUI/DWI I encourage you to cooperate with police, but never consent to the search of your person or car. Not consenting is within your constitutional right but refusing a breathalyzer or blood test is not protected under the Constitution. It is better for your attorney to argue over the admissibility of these results during motions to suppress evidence.


  1. Underage Drinking (Alcohol Possession and Consumption)


During Spring break many high school and college age students have a considerable amount of time off from school and other activities. During this time many of these young men and women will come together socially at friends and family homes. In addition to these gatherings, a number will attempt to sneak into bars and other local establishments using fake ID’s.


The legal drinking age of 21 is common knowledge but most parents and minors don’t understand that underage drinking is also a criminal charge which can negatively impact their son or daughter’s professional academic life.


Consequences of Underage Drinking—Penalties and Diversion Programs

In Pennsylvania, a minor is guilty of a summary offense if he/she carries a fake ID or uses it to obtain access or any type of alcoholic beverage. Remember that the mere possession of a fake ID is a crime and the minor doesn’t have to actually use the fake ID to be charged or convicted of it under Section 6310.3 (Title 18 of Pennsylvania’s Crime Code). The first offense is a summary but any 2nd or 3rd violation is a misdemeanor of the 3rd degree, which is much more of a serious criminal charge and characterization. In addition to criminal penalties, a person who is convicted for underage drinking faces a mandatory minimum 90 day license suspension. While our firm has had great success in assisting young men and women with the Summary Diversion Program, this program is offered at the discretion of the District Attorney’s Office. In addition, any adult who furnishes or sells alcohol knowingly to a minor, commits a misdemeanor of the 3rd degree with a mandatory minimum $1,000 fine.


            Our firm wishes you and your family a great Spring! For more information on how we can assist you, a friend, or family member, please contact our office and visit our free download section for more information.

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