Frequently Asked Questions About DUI/DWI, Drug Possession, and Illegal Firearm Charges

Do I have to take a breathalyzer test when I am pulled over? Does an officer need a reason to search my car? What is a bench trial? Whether you have been charged with a crime or not, these FAQs will give you the information you need to protect your rights in Pennsylvania and New Jersey.

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  • Your Diabetes and Your Breathalyzer Results: Creating Reasonable Doubt in a DUI!Request a Free Consultation

    The use of Breathalyzers in DUI prosecutions in Pennsylvania is declining but the device is still used by a number of law enforcement departments including the City of Philadelphia. A blood draw is a far superior method to determine a person’s blood alcohol content (BAC).oreos

    While blood tests provide stronger results a Breathalyzer is more convenient. Further, police can give a Breathalyzer test at the police station or practically anywhere because the device is portable. While they can do a blood test anywhere it requires much more preparation. Blood alcohol analysis is based on a scientific principal known as “Henry’s Law”. Henry’s Law states that when a liquid containing a volatile substance, like alcohol, makes contact with air in a closed container (Breathalyzer) the amount of alcohol in the air and the liquid are static (consistent or unchanged). Breath testing devices measure the amount of alcohol found in a person’s breath and multiplies it by a pre-determined co-efficient to arrive at a person’s estimated BAC. Breath testing, therefore, relies on scientific assumptions and constants.

    Since a breathalyzer measures the amount of alcohol in a person’s body through their breath it is important to determine if any other medical conditions could negatively effect breath testing. In addition, it’s important to determine if a medical condition could cause a person to appear intoxicated when, in fact, he was just suffering from the effects of the illness.

    Diabetes is one medical condition which can be a potential defense to a DUI case. Diabetes is a disease which causes the body not to produce or properly use insulin. Insulin is a hormone made by the pancreas which converts food into energy. There are two main types of diabetes: Type 1 and Type 2. Type 1 Diabetes is usually diagnosed in children and young adults. This type of diabetes causes the body not to produce insulin and only approximately 5-10% of the population suffer from this condition. Type 2 Diabetes is where the body doesn’t produce enough insulin or the body’s cells simply ignore the insulin. This type of diabetes represents 90-95% of the population who suffer from this condition.

    In addition to alcohol there are thousands of substances that could be inside a person’s breath sample. Breathalyzers use infrared spectrometry and one of the substances found is acetone. Acetone can negatively influence Breathalyzers results because it is a byproduct of a metabolic state known as Ketoacidosis. Ketoacidosis is a high concentration of ketone bodies which is normally associated with Type 1 diabetes. Prolonged alcoholism can also cause Ketoacidosis. There two types of this condition alcoholic and diabetic Ketoacidosis. This condition can cause a person’s breath to smell fruity and police can sometimes confuse this smell with that of alcohol.

    Individuals with Type 1 Diabetes can therefore have high levels of acetone in their breath. Acetone is found naturally in the environment and is normally present in the body from the breakdown of fat. Acetone is a substance that can be falsely identified as ethanol (also known as ethyl alcohol). This condition can cause the Breathalyzer to show a false positive even when the suspect hasn’t consumed any alcohol. If the Breathalyzer doesn’t take into account the level of acetone in a person’s breath the prosecution won’t be able to distinguish ethyl alcohol from acetone. This can create reasonable doubt as to the test’s results or cause the judge to rule that he results are inadmissible at a pre-trial motion.

  • What type of criminal charge can be expunged in New Jersey?

    New Jersey is slightly different than Pennsylvania when it comes to expungements. In New Jersey, a person can have their criminal record expunged if the charges were dismissed or withdrawn and did not result in a criminal conviction. A person is also eligible for an expungement if the charges were dismissed following the completion of a diversionary program, like a conditional discharge or pre-trial intervention, but this individual must wait 6 months from the dismissal date. Unlike Pennsylvania, a person convicted of a felony (indictable offense), may apply for an expungement 5 years after they have completed their sentence or term of probation. A New Jersey judge will order the expungement if the court finds that it is in the public’s best interest to grant it. A person can avoid the need to demonstrate public interest if he/she waits 10 years instead of 5 years. The following crimes are not eligible for expungement following a conviction in New Jersey:

    1. Criminal homicide
    2. Kidnapping
    3. Luring or enticing
    4. Human trafficking
    5. Aggravated sexual assault
    6. Aggravated criminal sexual assault
    7. Criminal sexual contact
    8. Criminal restraint
    9. False imprisonment
    10. Robbery
    11. Arson
    12. Endangering the welfare of a child
    13. Perjury

    Drugs Crimes & New Jersey Expungements

    Previously, a conviction for distribution of drugs or narcotics was not eligible for an expungement in New Jersey, but that rule has now been modified. Person’s convicted of distribution of marijuana less than or equal to 25 grams, or any drug, if the conviction was a Third or Fourth degree offense, is eligible for expungement and one will be granted if the court finds that it is in the public’s best interest to do so.


    Disorderly Person Offenses & New Jersey Expungements

    Convictions for disorderly person’s offenses can be expunged after 5 years, provided that the person has not been convicted of a crime either before or after the disorderly offense conviction. Violations of local ordinances are also eligible for expungements as long as the person has never been convicted before or after of a crime or a disorderly person’s offense on two or more occasions.


    Timing & New Jersey Expungements

    After a petition to expunge a criminal record, a court must grant a hearing between 25-60 days after the filing. If the court grants an expungement order, the attorney must serve the order on the appropriate state agencies who may take several more weeks to expunge the record.

  • If a person has a criminal past, will a judge or jury hear about it during trial?

    An accused person’s character is usually inadmissible (not allowed) at trial. Character evidence, however, becomes admissible if the defendant or his attorney introduces it into evidence. There is this rule of criminal procedure because the law doesn’t want something from a one’s past to influence their decision about the current case. There are, however, exceptions to character evidence admissibility.


  • What type of criminal charges can be expunged in Pennsylvania?

    The only types of charges that can be expunged in Pennsylvania are those that do not result in a conviction, either for a misdemeanor or felony offense. Convictions are never expungable in Pennsylvania but recently Pennsylvania created a record sealing law which allows a person to have criminal records sealed for certain non-violent misdemeanor convictions. Criminal charges which do not result in a conviction include situations where the charges are dismissed or withdrawn, as well as cases in which a person is found not guilty following a trial. A person is only eligible to have their record sealed 10 years after completing his/her sentence, which would include probation, parole, or jail.


  • What is the purpose of a Motion to Suppress Evidence?

    A Motion to Suppress Evidence is a powerful pre-trial motion which attempts to exclude often extremely incriminating evidence, which, more than likely, will lead to a conviction. Examples of this type of evidence would include illegal narcotics, drugs, guns, firearms, money, or other items used to commit a crime. The basis of this pre-trial motion is a person’s constitutional right against illegal search and seizure, which is in the United States Constitution as well as each individual state’s constitution. The right against illegal search and seizure is contained in the Fourth Amendment to the United States Constitution, which, through the Fourteenth Amendment entitles all people to due process under the law. Due process deals with the administration of justice and is a safeguard against the arbitrary denial of life, liberty, and property by the government. The Pennsylvania Constitution provides protection against illegal search and seizure under Article 1, Section 8, while New Jersey also provides this protection under Article 1, Paragraph 7, of its Constitution.


  • What is the difference between direct and circumstantial evidence?

    Direct evidence is evidence which a person actually observes. Circumstantial evidence is evidence that was not observed but from which a judge or jury could infer that an incident occurred. The most common example in a criminal trial of circumstantial evidence is footprints in the snow. While a person may not have seen another walk across a field during a snowstorm, the fact that there are footprints in the snow is circumstantial evidence that a person did so.


  • What happens at a preliminary hearing in Pennsylvania?

    A preliminary hearing ensures that a person is not unlawfully held for trial based on criminal allegations. The evidentiary burden is on the prosecution at these hearings and the burden of proof is Prima Facie evidence. This means that the prosecution only has to establish that it is more probable than not that a crime was committed and the accused committed the crime. There is a much lower evidentiary standard at a preliminary hearing than at trial. Just because a case is held for trial following a preliminary hearing does not mean that a person will be convicted at trial.

  • Why doesn’t New Jersey give an accused person the right to a preliminary hearing?

    Unlike Pennsylvania, New Jersey’s criminal procedure is based on a grand jury system. At a Grand Jury, a New Jersey prosecutor will present evidence to a group of 23 citizens who have been selected from voter registration. These individuals will hear the evidence and determine if there is a sufficient amount to indict the person for the crimes. If there is not sufficient evidence, the grand jury may decide to either dismiss the case or charge the person with a less serious offense, which would be downgraded and remanded to New Jersey’s Municipal Court within the county where the offense allegedly occurred.


  • What are the advantages of a judge (bench) trial over a jury trial?

    In some situations it's better to proceed with a judge alone rather than a jury when an issue at trial isn’t necessarily guilt vs innocence, but the grading of the criminal offense (Possession with the Intent to Deliver Drugs vs Simple Possession or Possession of a Firearm with an obliterated serial number vs. Unlawful Possession of Firearm). Juries, unlike a judge, are not trained in the law and often have a difficult time distinguishing degrees of criminal charges or lesser included offenses. This could mean that a person is convicted of a felony, as opposed to a misdemeanor and the difference between state prison and probation. A jury trial, however, is much more preferable in situations where the defense theory is a fabrication (the victim is making it up), or misidentification (the victim is accusing the wrong person). Judges in New Jersey and Pennsylvania are sometimes harder to persuade and the probability of success is much better for an accused at a jury trial.


  • What is the burden of proof at a criminal trial?

    The burden of proof at a criminal trial in Pennsylvania and New Jersey, as well as all other criminal trials in the United States, is guilt beyond a reasonable doubt. The burden is always on the prosecution and never on the defense. Unlike at trial, the burden of proof at Motion to Suppress “by the preponderance” of the evidence. This means that the prosecution only has to establish that their argument is slightly stronger than the defense’s argument.