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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Where are your car keys? Why it matters to your Pennsylvania DUI
Drunk driving defense is often about looking at minor details and determining how your defense can make them big issues to establish reasonable doubt in your criminal case in Pennsylvania or any jurisdiction. Prior to trial, your criminal defense lawyer should look at issues like reasonable suspicion and probable cause to stop and arrest along with the chemical testing procedure (blood test or breathalyzer). At a DUI trial, however, the prosecution must establish that you were in control of the vehicle in addition to the other elements of impairment and unsafe driving. While the issue of control is sometimes obvious because the police stop a driver who is clearly operating the car this isn’t always the case especially in situations involving motor vehicle accidents or where someone contacts police regarding an alleged drunk driver who is already out of the car.
Remember the prosecution must establish that a person was driving under the influence within two (2) hours of their arrest in order to establish guilt beyond a reasonable doubt for the most serious DUI charges (see my article on the 9 types of DUI). Section 3802(b) for example prohibits the operation, driving, or being in actual physical control of the movement of a vehicle after an individual has “imbibed” (drank) a “sufficient” quantity of alcohol such that their blood alcohol concentration (BAC) is equal to or greater than .10 but less than .16 within two (2) hours of driving. Section 3802(c) is similar to Section 3802(b) the only difference is that 3802(c) requires that the prosecution prove a BAC of .16 or greater. If police didn’t see a person drive the car, however, one of the critical pieces of evidence to establish this element (control) is the location of a person’s keys.
If, for example, the keys are in the ignition and the person is seated behind the wheel this is very strong direct evidence that the person was driving the car or at least in actual physical control of it (which is just as bad for DUI case.) If the car keys, however, are out of the car or even on the seat, the prosecution will likely need a witness to testify that a person was actually driving the car in order to establish guilt for the more serious DUI sections.
The prosecution still, however, may prove that a person is guilty of general impairment (Section 3802 (a)(1)) provided that a police officer can testify that a person wasn’t fit to operate a motor vehicle safely. Even with this section, however, the prosecution must still prove the person was actually driving the car so it would still need a witness to testify as to actual physical operation. The two (2) hour window rule doesn’t apply to Section 3802(a)(1) because BAC isn’t an element of this offense.
Remember keys in the ignition are bad for your DUI case and obviously answering any questions with regards to if you were driving a car are extremely bad for your DUI case. My advice is to always remain silent and not answer any questions which the police officer poses to you about your operation of the car. The burden of proof is always on the prosecution and never on the defense. Answering a question simply gives the prosecution more evidence to use against you. For more information about DUI defense I encourage you to read my book, 5 Ways to Fight and Win Your DUI Case.
“Let’s check the video!” What makes video and photo evidence admissible at a criminal trial?
At a trial there are three types of evidence which are admitted during the course of the proceeding:
- Testimonial evidence;
- Documentary evidence; and
- Demonstrative evidence.
The short article focuses on demonstrative evidence which includes photographs, diagrams, models, videotapes and DVDs. Prior to admitting any evidence, however, the judge must decide if the evidence is relevant and if it’s probative value outweighs its prejudicial value. In Pennsylvania, like many jurisdictions, evidence is relevant if it has “the tendency to make the existence of any fact that is of consequence more probable or less probable.” In other words, if it clears up an issue that’s important to the case. Even if evidence is relevant, however, a court may still exclude (inadmissible) if its probative value is outweighed by the danger of unfair prejudice, confusion, or is simply cumulative.
When it comes to evidence in a criminal trial another consideration is its reliability and the ability for either side (but usually the defense) to challenge it through cross examination. If the prosecution can’t present a witness, the court can rule that the evidence is inadmissible on several different grounds. When it comes to testimonial evidence, (a person’s statements) the hearsay rule of evidence requires that the witness who made the statement appear in court to testify to it unless the party attempting to introduce the testimony can argue that it falls within one of the exceptions of the hearsay rule. I have written previous articles on hearsay and encourage you to read them. There is also a chapter about it my book. Courts treat demonstrative evidence different as it isn’t testimonial in nature but rather depicts the occurrence of something. Video evidence usually doesn’t have sound but rather show images.
A court, however, won’t admit video or photograph evidence if a person can’t testify as to the images authenticity and as to what it depicts (is it a fair and accurate depiction?) With regards to the videos authenticity, the prosecution or the defense may be able to satisfy this requirement if it presents a witness who either shot the video, took the photograph, or was in charge of maintaining the equipment that recorded the image (custodian). With regards to testifying about what the video or photograph depicts, the prosecution or the defense will need to present a witness who can testify that they were present at the time the event occurred and that the image fairly and accurately depicts what occurred on the day in question. If the side (usually the prosecution) seeking to admit the video or photograph evidence can’t present a witness, it will need to give a reason to the court as to why the witness is unavailable and also show how the video accurately and fairly presents what it is attempting to prove or corroborate.
Authenticating the video or photograph may not be an issue especially if it is an image which was shot using the device that is maintained (red light camera, street video camera) but there are situations where a party may have trouble finding a witness who can testify that the image fairly accurately depicts what occurred on the night in question. Courts may exclude demonstrative evidence if it is overly prejudicial and one of the main reasons why evidence is prejudicial is that it unfairly depicts what actually occurred (distance, lighting etc.) What the court is looking for is a person to basically narrate the video or testify that that photograph is actually showing what happened and maybe even explain issues with video or image.
Demonstrative evidence is critical to cases involving alleged drug transactions (PWID) along with cases involving illegal guns or firearms (VUFA). The prosecution in these cases can’t simply play a tape without first laying the proper foundation. If your criminal case involves videotapes or photograph, your criminal defense attorney must attack not only the relevancy of this demonstrative evidence but it’s prejudicial influence on your case. He may need to file pre-trial motions to attempt to exclude this evidence. This is a critical part of your criminal defense.
For more information on evidence I encourage you to read my book, Commonwealth vs. You, and for cases specifically involving DUI my other book, 5 Ways to Fight and Win Your Pennsylvania DUI Case.
When is “holding a gun for a friend” not a crime in Pennsylvania? Violations of the Uniform Firearm Act (VUFA)
Everyone has done at least one or two favors for a friend or family member when that person goes away on vacation or some other trip. In most situations the “favor” is picking up mail, turning on a sprinkler, or some other minor obligation. There are cases, however, where a person asks that a neighbor or friend hold a gun or firearm for them for safe keeping because of fear of a break in or some other unfortunate event. Everyone likes doing favors but it is important to understand that when it comes to a gun or a firearm that favor could lead to serious criminal consequences under certain circumstances. Pennsylvania’s Uniform Firearms Act covers all matters related to guns or firearms in Pennsylvania and these crimes are often called “VUFA Offenses”.
The most common offenses under the Act are violations of Section 6105, 6106, 6108, and 6110.2. Any gun crime requires either the actual or constructive possession of the weapon in order for the prosecution to establish guilt beyond a reasonable doubt. If the prosecution or District Attorney can’t establish possession, a judge or jury will not find a person guilty because it is an element in any of these charges. Taking possession of a gun is a serious matter because it exposes you to potential criminal liability in the event that police come into your home for any reason. While the police need a search warrant to search your property (except under certain circumstances), the plain view doctrine allows them to make an arrest or confiscate an item based simply them seeing it.
Section 6110.2 makes it a crime in Pennsylvania to possess a weapon (gun or firearm) that has an altered or obliterated serial number. If a friend or family member gives you a gun to hold you shouldn’t accept it if the serial number is altered or obliterated. The defense of, “I’m just holding it for a friend” isn’t good enough and while it may make a difference when it comes to sentencing, you are still guilty of a felony and potentially subject to jail time even for a first offense. This is all assuming that the police’s presence in your home was for a non-criminal or minor matter. If it was for something more serious (i.e. drugs) you would obviously face those criminal charges as well.
Similar to Section 6110.2, Section 6105 makes it a crime to possess a weapon if you are a convicted felon or a person convicted of certain numerated offenses in Pennsylvania which have to do a crime of violence or victim crimes (rape, stalking, kidnapping). Like 6110.2 the mere possession of the gun or firearm is a crime and the offense of “holding it” for a friend on the ride isn’t a defense in a court in Pennsylvania.
Holding it for a friend is not a defense in a gun or firearm crime but if the gun is found in your home you can’t be convicted of Section 6106 or 6108. Both of these crimes require that the firearm not only be in your possession but be found outside of your home or place of business. These are the only situations where “holding it” for a friend would not lead to a criminal conviction.
Drug Conviction and Losing Your PA Driver’s License: Is there a way to avoid a suspension?
I have written previous articles about the possession, sale, and distribution of drugs and other controlled substances focused on the prosecution’s burden of proof and the elements of these offenses. A drug offense can be charged as a felony (possession with the intent to distribute – PWID) and as a misdemeanor (simple possession). A conviction for a drug offense can involve probation or jail depending on its severity. It’s important to point out that the mandatory minimum sentences for PWID are no longer constitutional in Pennsylvania.
My previous articles focus on defense strategies and pretrial motion strategies. Clients hire our law firm to defend these criminal charges in Pennsylvania but during the course of that defense we also need to consider other consequences that result from a conviction such as a license suspension. Under Section 1532 of the vehicle code (Title 75) PENNDOT will suspend the driver’s license of any person convicted of the possession, sale, or distribution of drugs in Pennsylvania. A first time offender faces a six (6) months of suspension and there is a one (1) year suspension for a second offense and two (2) year suspension for a third offense. It’s important to keep in mind that your conviction doesn’t have to pertain to a car (the sale from a car) or even driving.
A driver’s license suspension is significant and in many cases, it hurts more than a period of probation and some may argue a short jail sentence (I personally disagree with that opinion). A driver’s license suspension, however, impacts a person’s ability to earn a living and provide for their family. Section 1532 complicates a drug defense because your criminal defense lawyer must consider ways to avoid a license suspension. Normally, criminal lawyers are only focused on getting a PWID (felony) downgraded to a possession charge (misdemeanor). Obviously a complete acquittal is ideal but sometimes the defense isn’t able to overcome the evidence against an accused person.
A good criminal lawyer will know what his chances are at trial with PWID charges and possession charges. Assuming that there is no 4th amendment (illegal search and seizure) issue, your attorney must consider non-trial alternatives in cases where a person is at least going to be convicted on the drug possession misdemeanor charge. You obviously want to win at trial but your attorney must consider the strategy that is going to minimize the damage to your personal and professional life. Losing your driver’s license will no doubt negatively affect both of these areas.
Getting a not guilty on a PWID charge but a guilty on the possession charges is an example of winning the war but losing the battle—it still stings! If the DA isn’t willing to negotiate then your plan is simple—go to trial! If, however, your lawyer can effectively point out the weaknesses in the case, he may be able to negotiate a plea to possession of drug paraphernalia as opposed to Possession of the actual drug. Possession of Drug Paraphernalia is an ungraded misdemeanor. The distinction between these two criminal charges may appear slight but there is one major difference. You won’t lose your driver’s license for a drug paraphernalia charge. A plea to drug paraphernalia is therefore a great alternative if there is simply a low probability of getting an acquittal or winning a motion to suppress.
If you would like to read more about criminal defense strategies, I encourage you to visit my free resource section.
In or out of the house: Does it matter for your Pennsylvania gun charge?
The successful defense of any criminal charge requires a strategy. When it comes to gun or firearm charges in Pennsylvania, this strategy must begin at the pre-trial level with a motion to suppress evidence and continue at the trial level with arguments based on actual vs. constructive possession as well as direct and circumstantial evidence. Within these categories is the credibility of witnesses. I have written articles on all of these topics but it’s important not ignore the elements of certain commonly charge gun offenses.
Remember that in a criminal prosecution in Pennsylvania, the district attorney must establish each element beyond a reasonable doubt. This is a high burden of proof and much more of a burden than what is required at a preliminary hearing, a motion to suppress evidence, a motion to quash or a civil trial. The most common gun and firearm offenses in Philadelphia are violations of Section 6105, 6106, 6110.2, and 6108 under Pennsylvania’s Uniform Firearm’s Act.
If you are charged with Section 6105 or Section 6110.2, it’s important to realize that your status and or the status of the firearm are critical elements of the offenses in addition to your either constructive or actual possession of the gun or firearm. Unlike sections 6106 or section 6108, your location is irrelevant to the Commonwealth’s burden of proof. You can’t be convicted under section 6106 or 6108 if you are in your home or your place of business. These sections specifically require you to be somewhere outside of these areas.
With regards to Section 6105, you are prohibited from carrying a gun or a firearm if you have been convicted of certain “enumerated offenses” which pertain to violence and/or illegal drugs or narcotics. Under Section 6110.2, it’s illegal to possess a gun or firearm with an obliterated serial number. As you can see, these criminal charges (aka VUFA charges) don’t involve a specific location so it pointless to argue about it during a trial or a pre-trial motion. It’s common for someone to face a number of “VUFA” charges based on one (1) gun or firearm found in their possession. People are often shocked to see that they are charged with three or four criminal charges based one incident.
If you are charged with the illegal possession of gun or firearm, your Pennsylvania Criminal Defense lawyer must evaluate all possible avenues for your defense at trial and during the pre-trial stage. I encourage you read my free book on criminal defense and my monthly newsletter for more on these topics
Police Stops of Pedestrians- What’s Permissible in Pennsylvania?
I’ve written articles on the constitutionality of car and vehicle stops in the context of drug and DUI charges but haven’t devoted enough attention to pedestrian stops. Police stop persons walking down the street as often, if not more often, than motor vehicles and so this issue is important. If you’re a frequent reader of my blog, you understand that police need probable cause to arrest someone for a crime but prior to that arrest an investigative detention (stop) often occurs.
During this stop police begin an investigation that helps form the basis for probable cause to arrest. The basis for this stop, however, is extremely important because without a sufficient basis, the search and seizure of the suspect will be deemed illegal. Any evidence found as the result of an illegal search and seizure is inadmissible and therefore can’t be used as evidence against someone during a prosecution. Police stops often occur after an officer observes a suspect who he believes is involved in criminal activity based on his experience and training.
In addition to these instances, police are also permitted to stop a person if they believe that the individual is carrying some type of contraband (i.e.: a gun- bulge). Further, after the stop police may frisk someone to confirm that the person isn’t a threat to the officer’s safety. This is known as a “Terry Stop.” While police need probable cause to arrest someone and search their belongings, they only need reasonable suspicion for an investigative stop (detention).
It is important to keep in mind, however, that a police stop is only constitutionally permissible if the police officer can articulate a reasonable basis for his belief that some type of crime was occurring prior to the stop. For instance, if police simply observe unusual movements or some type of awkwardness, Pennsylvania Courts have found that this isn’t enough to establish reasonable suspicion for a police stop.
A person’s presence, however, in a high crime area combined with unusual movements or “hand to hand” transactions is probably enough for a stop for further investigation. Pennsylvania criminal courts will evaluate the reasonableness of a police stop based on a totality of the circumstances analysis based on the officer’s training and experience. There is no simple answer to the issue of reasonable suspicion or probable cause and every case is different.
While the Pennsylvania Supreme Court has ruled that police have probable cause to search a suspect based simply on the observation of the exchange of items in a high crime area, our Supreme Court still stressed that the prosecution must establish a “nexus” between the officer’s experience and his decision to search.
The bottom line is that reasonable suspicion to make an investigative stop is an important issue to any drug or gun case in Pennsylvania and beyond. While the test for reasonable suspicion doesn’t require as many “articulable facts” as probable cause, your criminal defense attorney must analyze this part of your criminal case. If reasonable suspicion and/or probable cause are issues, your attorney must assert your Fourth Amendment Right against illegal search and seizure through a Motion to Suppress Evidence prior to trial. If your attorney doesn’t do this you waive your Fourth Amendment Right and it can seriously jeopardize your case. If you have more questions about criminal defense strategies you should read my books and subscribe to my monthly newsletter.
Your IPad and Your Expectation of Privacy in Pennsylvania?
Probable cause and reasonable suspicion are important concepts in the area of criminal defense and pre-trial motions. If Police don’t have probable cause and or reasonable suspicion, the search and or arrest of a suspect is illegal. Even if there is search warrant in these cases, a criminal court will find that the evidence obtained from the arrest is inadmissible in a criminal prosecution. While everyone enjoys the Fourth Amendment right against illegal search and seizure as well under the Pennsylvania Constitution (Article 1, Section 8) a person must have legal standing to assert it. Search and seizure doesn’t just apply to traffic stops
Standing with regards to a Fourth Amendment and illegal search and seizure means that a person must have a reasonable expectation of privacy in the area searched. If a person doesn’t have a reasonable expectation of privacy, they can’t assert an argument that a search is illegal. In Pennsylvania, the Wire Taping and Electronic Surveillance Act is designed to protect privacy. The Act derives from our Fourth Amendment right and our rights under the Pennsylvania Constitution. This Act prevents police from “intercepting electronic, mechanical, or other devices” based on a person’s Fourth Amendment Rights against illegal search and seizure. This applies to both felony and misdemeanor offenses in Pennsylvania.
This Act in Pennsylvania specifically covers any device or other apparatus used to intercept phone calls. The intercepting device, however, doesn’t include simply listening to a telephone call that is for instance played on a speaker of a cell phone. This was the situation in a case that occurred in Pennsylvania last year (Commonwealth v. Spence) where the Pennsylvania Supreme Court ruled that the act of a state trooper listening to the speaker on an informant’s phone didn’t violate Wiretap Act in Pennsylvania. It is important to understand that this type of evidence may be suppressed either under the Wiretapping and Electronic Surveillance Act or under the Fourth Amendment to the United States Constitution.
To assert the Fourth Amendment, however, you must have an expectation of privacy. In a recent case, however, the Pennsylvania Superior Court made a distinction between an IPad and a cell phone. In Commonwealth v. Diego the court said that an IPad isn’t a cell phone or any type of phone under the Wiretap Act. In this decision, the Superior Court found that an IPad is an electronic, mechanical, or other device which would be included under the Act. Police, therefore, can’t use an IPad to intercept text messages, e-mails, and other forms of communication. Read my other article on this important topic
The court found, however, that a person who sends a text message, leaves an e-mail, or other “chat communication” has no expectation of privacy in that communication. The court found that these messages are equivalent to voicemails on an answering machine (if people even use them anymore.) Since there is no expectation of privacy, the person doesn’t have standing and can’t asset the Fourth Amendment against illegal search and seizure.
While an IPad does fall under the “device” category of the Act police don’t violate the Wiretap Act when they view a received text message on an IPad, IPhone, or a computer. Keep in mind that it’s the interception of the communication which violates the Act not the receipt of it. Viewing the text that was already received is neither a violation of the Act or a violation of a person’s Fourth amendment rights.
No License, No Insurance, No Registration: Not Arrested?
Recently one of our readers asked why a person without a drivers’ license, valid insurance, and a valid registration wouldn’t be arrested on the spot by police.
In Pennsylvania, all of these violations (not having a license, insurance, etc) are summary violations that are covered by Pennsylvania’s Traffic Code (Title 75). There are, however, traffic violations which are much more serious like DUI (Title 75, Section 3802). DUI is a misdemeanor offense in Pennsylvania and much more serious than a summary offense. Read my article on the categories of crimes in Pennsylvania for more information.
Unlike other criminal offenses, summary offenses don’t always require an arrest. In Pennsylvania, police may handle a summary offense by issuing a citation to the person or arresting the person in certain situation. Arrests are only for cases involving “violence, or the imminent threat of violence, or those involving a danger that the defendant will flee.” Driving without a license or not having the proper documentation wouldn’t fall into this category so police won’t arrest someone in this situation.
Despite not arresting someone, police may seize the car; this is known as “Live Stop.” If police do however seize a car, they aren’t permitted to simply abandon the person on the street! The officer must ensure the safety of the person by giving him or her a ride to their house, another location within a reasonable distance or the nearest police station so they can make arrangements.
If you have more questions about criminal law, I invite you to visit our free resources section.
Is a Copy Okay in Court? The “Best Evidence” Rule in Pennsylvania Criminal Cases
A big question that we get from clients is do they or prosecution have to produce the original document at trial in a criminal case where the admissibility of the document is a critical issue. Remember, that the burden of proof in a criminal case (guilt beyond a reasonable doubt) is always on the district attorney (prosecutor) and never on the defense. In Pennsylvania, under Rule of Evidence 1002, the original is sometimes still required. As with anything in the law, however, the focus is usually on the exception to the rule rather than the rule itself.
In Pennsylvania, under Best Evidence Rule, there are four (4) reasons for requiring the original and not the copy: 1) copies are susceptible to inaccuracies (lines, smudges etc); 2) copies open up the possibility of fraud or alterations; 3) the original proves the document’s authenticity, and 4) the content within the writing (signatures, carvings, personal marks, etc.) are so important that the Court must ensure that it is actually the original.
It is important to understand that copies are not normally an issue at a criminal judge or jury trial if the copies are only evidence of a transaction, thing, or event. In this situation, a copy will suffice if the copy is a picture, photograph, or some other writing that shows that an event took place. In the case of a felony or a misdemeanor charge this would be pictures of the crime scene or the area in question. This would also include things like receipts for things purchased that could corroborate (support) evidence of a crime (i.e. person purchased a gun prior to the shooting). Copies would also be fine in the case of a DUI where the prosecution is introducing BAC results or the results of seizure analysis in a drug case (PWID—Possession with Intent to Deliver). Your criminal defense attorney, however, can always challenge the authenticity of a document under the Best Evidence Rule in Pennsylvania.
The argument that an original is better than a copy however is somewhat obvious and isn’t going to carry much weight with a judge. Its important to understand that the court will normally not require the production of the original document under the following circumstances: (1) The originals have been lost or destroyed; (2) The original is not obtainable; (3) The original is in the possession of someone else; (4) It’s a Collateral Matter. A collateral matter means that the writing (document or picture) only serves as proof of the incident and the original content of the writing is not material.
The bottom line is that copies are usually sufficient unless there is some issue regarding the copy’s authenticity or if the original is needed for a specific reason (a unique piece of art or a signature). The best evidence rule is usually not an issue in most criminal cases where the defense and the prosecution (district attorney) often use demonstrative exhibits at trial to show direct and circumstantial evidence. If you have questions about forms of evidence, give our office a call. I also encourage you to pick up one of our free books, watch one of our videos or subscribe to our newsletter.
When is the Use of Non-Deadly Force Justified in Pennsylvania?
One of the most common crimes that our law firm defends is assault. In Pennsylvania an assault can be either a misdemeanor or a felony charge depending on the extent of a victim’s injuries and/or the intent of the actor. A simple assault is defined as an unlawful touching which means that any use of force against another person could be a crime. An aggravated assault is an unlawful touching with the intent to commit either serious bodily injury or life threatening injuries. While simple assault is a misdemeanor an aggravated assault is either a felony of the first degree or a felony of a second degree depending on the injuries and the intent of the act.
In these cases your criminal defense attorney should always look at the possible defense of self-defense in your case because Pennsylvania, like other states such as New Jersey, permits a person to use “justifiable” force to defend himself or others. In some situations, this legal concept is known as the Castle Doctrine. In the past the Castle Doctrine only applied to situations that occurred in a person’s home but a short time ago Pennsylvania expanded its reach to other areas outside the home.
Like any crime, an assault, whether a misdemeanor or a felony, requires that the Commonwealth (prosecution) prove its case beyond a reasonable doubt. In addition to assault the prosecution more than likely charge other crimes such as recklessly endangering another person (REAP) and possession of an instrument of crime (PIC) if a weapon is involved in the incident. If your attorney properly argues that the force you used was justifiable self-defense, however, the prosecution must prove, beyond a reasonable doubt, that either such force wasn’t necessary or others or that the use of force was unreasonable considering all of the circumstances surrounding the incident. In addition, the prosecution can also meet its burden of proof in these cases if it can show that you provoked the use of force against another person or a person in the immediate proximity of the alleged victim (you started it).
It is very important to understand that the Commonwealth can’t establish either that you used unjustifiable force or that you started the incident it can’t prove its case and the court must find you not guilty. The self-defense is a powerful tool in Pennsylvania and practically every other jurisdiction in the country.
Our law firm publishes a variety of free legal resources and we encourage you to visit that section of our website.