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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How do Pennsylvania and New Jersey determine bail?
Bail is based on the potential harm a person presents to the community as well as the risk that the person will not appear for court and flee. In Pennsylvania, bail is based on a monetary system; the amount of risk determines the amount of bail set. A person is entitled to bail in Pennsylvania for almost all crimes except the crime of Murder-First Degree, where the mandatory minimum sentence is life without the possibility of parole.
In New Jersey, bail is not based on a monetary system, but rather a risk factor assessment based on an accused person’s risk of flight, the protection of the community, and whether the accused person will obstruct or attempt to obstruct the criminal justice process. Even if a person has a low risk assessment, however, the prosecutor’s office can file a Motion for Detention to argue that the assessment does not accurately portray the individual’s profile. At this hearing the prosecutor must present clear and convincing evidence that no level of non-monetary conditions will address the State’s concerns.
What should I do if the police want to search my car or my house?
All searches done without a search warrant are presumed to be unconstitutional. The law, however, permits police and law enforcement to conduct warrantless searches in certain situations, which the law in Pennsylvania and New Jersey, refer to as exigent circumstances. Exigent circumstances exist if there is a reasonable possibility that evidence will be lost or destroyed if police don’t search the property in question and confiscate the evidence. There’s a much higher level of scrutiny and expectation of privacy associated with a person’s home than a person’s car.
What type of evidence do police need to stop and investigate a possible crime?
Police need reasonable suspicion that a crime has been committed, or is being committed, to stop and detain a person to investigate a crime. Reasonable suspicion is a lower form of probable cause. This level of investigation also permits the police to frisk a person if the officer believes that the suspected individual poses a threat or danger to the officer’s safety.
What type of evidence do police need to make an arrest?
Police and other law enforcement need to establish probable cause that a crime was committed or is being committed, to arrest someone. Probable cause is the reasonable belief, based on the officer’s training, education, and experience, that a person is committing a crime or has committed one.
PA Medical Marijuana Law – Who, When, and What is Covered
On April 17, 2016, Governor Tom Wolf signed Pennsylvania’s Medical Marijuana Program into law. This makes Pennsylvania the 24thstate to adopt a Medical Marijuana Program. While the new law went into effect May 17th of this year, our Commonwealth won’t make it available through state licensed dispensaries until sometime in 2018. Until that time, only caregivers of minor children who suffer from “a serious medical condition” as defined under the law will qualify to obtain medical marijuana and transport it into the state from another jurisdiction.
Pennsylvania is now accepting “safe harbor” applications for these infirmed minors but this provision doesn’t cover adults in the Commonwealth. It’s important to under who and what is covered under the new law to avoid either a misdemeanor criminal drug charge for simple possession or a felony charge for possession with intent to deliver (PWID). While a person charged with simple possession may qualify for the ARD program along with an expungement, a person charged and convicted of felony would not qualify for either and couldn’t have their criminal record sealed.
While medical marijuana is now considered legal in Pennsylvania, there are a number of requirements for its legal consumption. To qualify for medical marijuana, a patient must have a terminal illness, suffer from cancer, HIV/AIDS or another qualified medical condition under the new law (a/k/a Act 16).
Other qualified medical illnesses or conditions include the following:
- Amyotrophic lateral sclerosis,
- Parkinson’s disease,
- Multiple sclerosis (MS),
- Inflammatory bowel disease,
- Huntington’s disease,
- Crohn’s disease,
- Post-traumatic stress disorder,
- Intractable seizures,
- Sickle cell anemia,
- damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity,
- severe chronic or intractable pain of neuropathic origin,
- or if conventional therapeutic intervention and opiate therapy is contraindicated or ineffective.
In addition to these conditions, the PA Department of Public Health can approve additional debilitating medical conditions. A patient who has a qualifying condition must, however, also obtain a doctor’s certification to enroll into the program. The doctor is only permitted to issue a certification if the physician has a valid medical license and has completed a four hour course on medical cannabis. This physician certification must state that the patient is under the doctor’s ongoing care and that the patient is likely to receive a therapeutic or palliative benefit from the medical marijuana.
Doctors aren’t permitted to receive pay from or refer patients to a marijuana business, conduct an exam at a location where marijuana is sold or have any direct or indirect economic interest in a marijuana dispensary or a cultivator. Further, doctors aren’t permitted to advertise in marijuana cultivation centers or dispensaries. Patients who qualify for medical marijuana may not do any of the following:
- Grow marijuana
- Drive under the influence of marijuana (DUI)
- Give or sell marijuana
- Possess marijuana on a school bus or on school grounds
- Use marijuana in a public place
- Smoke marijuana
- Use dry leaf or whole plant marijuana
- Utilize medical marijuana in any work place while performing dangerous activities
- Purchase food or drink infused marijuana
While Pennsylvania has legalized medical marijuana for these qualified patients, the U.S. Department of Justice technically still has the authority to enforce civil and criminal penalties against is possession and use. It is unlikely, however, that the Federal Government will bring either civil or criminal action against growers, processors, dispensaries, physicians or seriously ill individuals or caregivers as long as they abide by Pennsylvania law.
The following are acceptable forms of medical marijuana:
- Topical forms – gels, creams or ointments,
- Vaporization or nebulization,
For more information on drug crimes in Pennsylvania, I encourage you to visit my free download section, watch my videos, and continue to read my blog.
The Top 5 Questions about DUI Checkpoints in Pennsylvania
The holiday season is about to kick off next week with my favorite holiday—Thanksgiving! With this wonderful season comes office parties and other events involving alcohol. Police and law enforcement in Pennsylvania will be on the look out for drunk drivers and will more than likely set up a checkpoint at or near where you live or near the party you’re attending. Here are top 5 questions that our criminal defense law firm receives from clients in Philadelphia and its surrounding counties.
- Are DUI checkpoints legal in Pennsylvania?
YES. In Pennsylvania, the random stop of a car or other motor vehicle is unconstitutional but federal and Pennsylvania law does permit them in certain situations.
Pennsylvania defines a roadblock as a well-marked stationary point supervised by police where officers make a brief “without suspicion” or stop to determine a driver’s possible intoxication using a pre-determined objective standard.
While it may appear that checkpoints and roadblocks violate the Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution, the United States Supreme Court and the Pennsylvania’s Supreme Court have found this police tactic permissible as long as the police satisfy certain requirements.
- Who is responsible for establishing the constitutionality of a checkpoint or a roadblock?
The Commonwealth through the assistant district attorney (the prosecutor) bears the burden of establishing the constitutionality of that roadblock. Almost every case involving the constitutionality of a roadblock will cite the “Tarbert/Blouse” standard.
This standard comes from two Pennsylvania Supreme Court cases which balanced an individual’s constitutional rights under the Fourth Amendment and Article 1, Section 8 of the Pennsylvania Constitution against Pennsylvania’s compelling interest of public safety (protecting people from drunk drivers.)
The Court in both of these decision found that while roadblocks intruded upon a person’s constitutional rights, it is an acceptable level of intrusion given the state’s interest in protecting the public.
- What specific constitutional requirements must a DUI checkpoint satisfy?
A Pennsylvania Court will find a DUI checkpoint constitutional if it meets the following requirements:
- The car stop must be brief and it can’t include a search of the vehicle or its occupants
- Police must give advance notice (signs, notices through the media, ie: newspaper, advertisements)
- Police administration must make the decision to schedule the roadblock and police officers can’t simply schedule it on their own
- The location and time of the roadblock must be based on a history of drunk driving incidents and arrests in that location
- The “stop criteria” must be based on an objective standard created by police administration and not individual patrol officers
- Is there anything illegal about intentionally trying to avoid a DUI checkpoint?
No. A driver is legally permitted to avoid a roadblock and police can’t stop a car simply based on the belief that a driver is avoiding them. If the police officer, however, believes that the driver is purposely avoiding them and the officer has a reasonable suspicion that the motorist is either in violation of Pennsylvania’s vehicle code or the motorist is committing a crime due to the car’s sudden change of direction, he can stop it.
For more information on DUI in Pennsylvania, read the second edition of my book—5 Ways to Fight & Win your Pennsylvania DUI case. I’m almost finished the second edition of this book and look for this expanded version later this month!
The Five Most Common Questions about Criminal Charges in New Jersey
Pennsylvania and New Jersey may share borders and bridges but there is a tremendous difference in their criminal justice systems. Our criminal defense law firm has represented individuals in a number of counties in the Garden State including Burlington, Camden, Gloucester, Mercer, Cumberland, Morris, and Sussex. I have found that the most common questions in these matters are as follows:
1. How does New Jersey classify criminal offenses?
Unlike Pennsylvania, New Jersey, classifies crimes from first to fourth degree offenses. A first degree offense carries potential 10-20 years in prison. A second degree offense carries a potential 5-10 year prison sentence and a third degree crime can result in up to 3-5 years of prison. Fourth degree crimes carry a potential penalty of 18 months in prison but there is a presumption of non-custodial sentences (no prison) on third and fourth degree crimes in New Jersey.
All of these offenses are heard in New Jersey’s Superior Court (trial court) and are more serious than non-criminal charges heard in the New Jersey’s Municipal Courts. Municipal Courts handle “disorderly person’s offenses” or “petty disorderly person’s offenses”. A disorderly person’s offense can result in up to 6 months in a county jail while petty disorderly offense can require a person to serve up to 30 days in jail.
Here are some examples of degrees of crime in New Jersey:
- First degree crimes – murder, manslaughter, and rape.
- Second degree crimes- aggravated assault, illegal guns (Graves Act), burglary, kidnapping, and some drug crimes.
- Third degree crimes – some robberies, some drug crimes, and even some DWI.
- Fourth degree crimes – some aggravated assaults, some sex offenses, drug possession, some theft crimes (valued between $200 and $500).
Please keep in mind that many offenses in New Jersey aren’t confined to a specific degree. Aggravated Assault, for example, can be a 2nd, 3rd or even a 4th degree offense depending on the circumstances surrounding the incident.
2. How does the grand jury system work in New Jersey?
After a criminal complaint is filed, the prosecutor’s office in each county determines whether to pursue that complaint. During the prosecutor’s evaluation they will determine if there is sufficient evidence to pursue a conviction and if there is, they will present it to the grand jury for indictment. If there is insufficient evidence, the charges will be downgraded to a disorderly person’s offense and remanded or sent back to the municipal court for a hearing or possible dismissal
The grand jury is composed of a group of citizens who have been selected from voter registrations. These individuals hear the evidence and determine if there is sufficient evidence to formally charge a defendant. An indictment is not a finding of guilt and requires the majority of 23 grand jurors. If these jurors decide to indict it is called a “true bill” and if there is insufficient evidence to indict it is called a “non-bill” and the charges are dismissed. The jury, however, may decide to charge the defendant with a less serious offense which would be downgraded and remanded to the municipal court.
3. What happens after an indictment?
21 days after the return of an indictment a pre-arraignment conference is held. At this pre-arraignment the defense is provided with discovery and at this time he or she may apply for the Pre-Trial Diversion Programs (PTI) or even enter into plea bargain negotiations.
50 days after the indictment there is an arraignment. At the arraignment an accused person may plead guilty to the original charges or amended charges following plea negotiations. Defendants who don’t plead guilty can continue plea negotiations and/or prepare for trial. This will result in pre-trial conferences and an eventual “plea cutoff date” plea cutoff date where no further plea negotiations can occur. After the plea cutoff date if there is not agreement to plead guilty the matter is scheduled for trial.
PTI is a diversionary program in New Jersey which permits certain accused persons to avoid formal prosecution and conviction. Defendants who are seeking this program must apply to the criminal division for that county. Case supervisors will conduct an investigation to ensure eligibility. Admission into the program requires the consent of the prosecutor’s office, the criminal division manager, and the criminal judge. The following individuals aren’t usually eligible for PTI: persons charged with violent offenses, probationers and parolees, and/or persons accused of racketeering or organized crime.
4. Who is entitled to bail and how is bail determined?
The New Jersey Constitution requires that bail be set within 12 hours following the issuance of a criminal complaint. All defendants have a right to bail under the state constitution and if bail is posted the defendant is released until the charges are resolved. Persons who have a significant tie to the community and/or no criminal history may be released on their own recognizance or ROR. A person may also be required to post funds or property or a personal bond which is a promise to appear or face a judgement.
5. How does New Jersey treat out-of-state DUI/DWI convictions?
If a New Jersey resident receives a DUI/DWI in another state there is a good possibility that New Jersey will suspend the license under the Interstate Driver License Compact. The only states that are not part of this interstate compact are Alaska, California, Michigan, Montana, Oregon, and Wisconsin. The driver compact requires member states to suspend the driver’s license of those who get DWIs and moving violations in another state. The compact does not include non-moving violations such as expired inspection stickers, equipment violations, and parking violations. There are differences in the way that Pennsylvania and New Jersey treat “point violations”. For example, unsafe driving is a no point violation in New Jersey but a point violation in Pennsylvania.
For more information on criminal defense strategies in New Jersey, continue to read my blog and visit the free download section.
The 5 Most Common Myths about Drunk Driving Charges in Pennsylvania
Our criminal defense law firm represents many individuals charged with drunk driving (DUI) in Pennsylvania and New Jersey along with criminal offenses involving illegal drugs, guns, and firearms. There are always a number of myths flying around the internet about criminal charges but especially when it comes to DUI. Everyone has a friend or a family member who has “been through this” and often times these individuals misinform an accused person because their case was different or they simply forgot what actually happened.
The purpose of this short article is to clarify and dispel the 5 most common myths about drunk driving charges in Pennsylvania.
1. The prosecution (District Attorney) needs the results from a blood or breath test (breathalyzer) to prosecute you for DUI.
This is simply not true! In Pennsylvania under Section 3802(a)(1), Section 3802(d)(2) and Section 3802(d)(3)), the prosecution can and will proceed under the general impairment section of the DUI statute which doesn’t require the prosecution to introduce blood alcohol concentration (BAC). In these situations, the prosecution only has to prove that you were in control of the vehicle and impaired to such a degree (from drugs and or alcohol) that you were unable to operate it safely on the roads or streets in Pennsylvania. The prosecution can establish this through the observation of a police officer and even a civilian witness but obviously the observations of the officer are much stronger. Police are trained in these types of situations and have experience making arrests.
2. Police always need probable cause to stop a person for a DUI
Normally police do need probable cause that a person has committed a violation of the traffic code but in the case of a DUI, police need only reasonable suspicion that a person could be under the influence in order to stop a car for a DUI. Reasonable suspicion is lower form of probable cause!
Typical violations of the vehicle (traffic) code include things like speeding, running a stop sign, or running a red light but in the case of a DUI, the officer can stop a car if he believes it is making “unusual” movements. An example of these movements would be briefly drifting over the center line of the traffic lane or stopping for an extended period of time at a stop sign.
3. You have a constitutional right to refuse a breathalyzer or blood test – the Fifth Amendment right to remain silent.
There is no constitutional right to refuse a blood or a breathalyzer test in Pennsylvania or in any state. The Fifth Amendment protects testimonial evidence and that is usually in form of verbal statements from an accused person to police. The results of a blood or breathalyzer test, however, are non-testimonial and therefore not a part of a person’s Fifth Amendment rights under the Constitution. The recent case of Birchfeild v. North Dakota has led some to conclude that you should reject a blood test. Your criminal defense lawyer, however, can still make a motion under this recent Supreme Court decision even if you consent to a blood test. Refusing to take the test only potentially adds another possible criminal charge which your criminal defense lawyer will have to deal with at trial and during pre-trial motions
In the case of a breathalyzer test, the recent US Supreme Court decision specifically says that police don’t need a search warrant. The Court found that a search warrant is necessary in the case of a blood test because it is much more of a severe government intrusion. Since that decision Pennsylvania courts have found that a person’s consent doesn’t equal a waiver of the search warrant requirement for blood so taking the blood tests would not change the inadmissibility of the evidence and your defense options.
4. You can’t refuse the field sobriety test.
Unlike a chemical test (blood or breath) you do have a right to refuse to take a field sobriety test (walk and turn, HGN, one leg stand). It is important to consider, however, that if you refuse the test the prosecution will more than likely argue that your refusal is a “consciousness of guilt” and that you refused to take it because you knew you would fail. In these situations you have to consider why you are refusing the test and explain to the officer your reasoning. Normally I only advise people not to take the test if they are physically unable to do so but even in those situations, I think it’s a good idea provided that you explain to the officer that you have a physical condition which may affect your ability to correctly perform these physical movements.
5. All of the drugs in my system are legal so there’s no DUI, right?
Section 3802(d)(2) and Section 3802(d)(3) only requires that the prosecution prove beyond a reasonable doubt that you were unable to safely operate a car or motor vehicle because you were impaired by some drug or some combination of drug and alcohol. The type of drug is not part of a burden of proof and therefore doesn’t matter if it’s legal or illegal.
If you’re charged with a DUI in Pennsylvania I encourage you to read my free book, Five Ways to Fight and Win Your Pennsylvania DUI Case, as well as watch my videos on this topic.
Have You Been Drinking? How to answer a question if police stop you for DUI
Most drunk driving cases start with a traffic stop made because of a violation of the vehicle code (speeding, running a red light, or a stop sign). Following that traffic stop a police officer may have a suspicion that a person has been drinking because of the person’s appearance or some other sensory cue (smell of alcohol). It is important to first understand that a police officer doesn’t have to see or observe a specific moving violation to stop a car for suspicion of DUI. The officer just needs reasonable suspicion (not probable cause) that a driver is either intoxicated or perhaps in distress (falling asleep at the wheel).
Once a stop is made, a major issue in DUI cases is whether the officer is permitted to question a driver about what he did prior to getting behind a wheel that day. While the Supreme Court in Berkemer v. McCarty ruled in 1984 that a motorist wasn’t in custody when he was asked “a modest amount of questions” following a traffic stop, the Pennsylvania Superior Court didn’t apply this case to the case of Commonwealth vs. Bruder. In the Bruder case the Pennsylvania court held that a custodial interrogation doesn’t require that police make formal arrests and exists whenever an individual being interrogated “reasonably believes his freedom of action is being restricted”. The court went on to say that whenever a person’s freedom is restricted any statements elicited before the Miranda warnings should be suppressed under the Fifth and Sixth Amendments to the United States Constitution.
The United States Supreme Court, however, reversed the Pennsylvania Court and specifically held that during an ordinary traffic stop a person isn’t in custody for the purposes of Miranda and therefore the statements made by a driver in response to a question are admissible. The court held that while a stop is unquestionably a seizure within the meaning of the Fourth Amendment, such traffic stops are brief unlike prolonged station house interrogations. Further, traffic stops incur in “public view” and in a far less police dominated environment and therefore the motorist’s’ freedom isn’t restricted to the same degree as a formal arrest.
It appears that the length of the interrogation is a critical part of the court’s Bruder analysis. While the Supreme Court has ruled that police are permitted to question a driver following a traffic stop and even ask possibly incriminating questions your criminal defense lawyer should focus on the length of the conversation with the officer prior to the ultimate question being asked (i.e. have you been drinking? Are there drugs in the car? Is there a gun in the car?).
If you are stopped for suspicion of DUI in Pennsylvania or DWI in New Jersey, my advice is not respond to the question have you’ve been drinking or any question! Simply tell the officer that you will provide the him or her with your license, registration and proof of insurance but you’re not going to answer questions about where you were coming from, or what you ate or drank that day before driving. Other attorneys may disagree but if the officer is asking, have you’ve been drinking, he really doesn’t care what you have say, he is going to arrest you anyway; making this statement is never going to help your case. Speaking to police is just going to give the prosecution (district attorney) a stronger case against you.
For more information on the Fourth Amendment and illegal searches and seizures, I encourage you to read my free books: What Everyone Should Know about Guns, Drugs, and Defense Lawyers in Pennsylvania and 5 Ways to Fight and Win Your Pennsylvania DUI Case.
Drugs and Narcotics Crimes: When can the prosecution bring up your past in PA?
Our Pennsylvania criminal defense law firm based in Philadelphia frequently handles cases involving illegal drugs and narcotics. In these situations, may of our clients, unfortunately, have prior criminal records for possession misdemeanor and possession with the intent to deliver illegal drugs (PWID) (felony).
Normally a person’s prior criminal record and or “bad acts” aren’t admissible during a criminal trial and the Commonwealth or prosecution (assistant district attorney (ADA)) must establish beyond a reasonable doubt that a person is guilty of a particular crime for which he or she is accused. Pennsylvania Rule of Evidence 404(b), however, allows the prosecution to introduce evidence of prior bad acts which would include convictions to prove some of the relevant facts against the accused person such as:
- absence of mistake; or
This is incredibly strong evidence for the prosecution because the judge or jury will hear that a person has been involved with drugs in the past and this will seriously damage the defense’s case. It may cause the judge or jury to form a negative opinion about the accused person even though they enjoy a presumption of innocence under our state and federal constitution.
It is important to remember, however, that while Rule 404(b) does permit the admission of this evidence, the prosecution must establish a specific and logical connection between these other acts, which include criminal convictions and the crime at issue. This means that the prosecution must do more than simply state the person has been convicted of a drug crime in the past but must show that the current case grew out of or was in some way caused by the prior set of facts and circumstances. The admission of this damaging evidence for the defense is at the discretion of the trial judge and a higher court (Appellate Court) will only reverse this type of evidentiary ruling if the defense can demonstrate a “clear abuse of discretion”.
The mere fact that a person has been convicted of a drug crime, in and of itself, isn’t sufficient to make it admissible under Rule 404(b). Your criminal defense lawyer must focus on establishing a difference between your current criminal case and your prior conviction. These differences could include:
- the type of drug,
- the location,
- the type of transaction,
- the persons involved;
- the time between this case, the prior conviction or bad act, and
- the circumstances surrounding your arrest.
Remember the prosecution can’t offer the evidence to establish your criminality but rather to show something else (motive, opportunity, intent, and preparation). While Rule 404(b) focuses on prior crimes, convictions, or other bad acts Rule 404(a) is focused on the character of the defendant and other witnesses at trial. Remember that in most situations evidence of a person’s character isn’t admissible unless it is offered into evidence. While character is inadmissible either the defense or the prosecution may attempt to impeach the credibility of a witness, including the defendant under Rules 607, 608, and 609. For more information on character evidence and the admissibility of that evidence at a criminal trial I encourage you to visit my free download section and continue to read my blog.