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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  • What Evidence Can Your Lawyer Use to Impeach the Credibility of a Witness?

    The credibility of a witness is a critical issue in any defense especially those involving allegations pertaining to illegal guns, drugs, and even DUI. In these criminal cases judges and juries will evaluate the truthfulness of police officers and civilian witnesses and their testimony pertain to the elements of each of these offenses.  This is especially important in cases where the defendant can’t testify because of his prior criminal history (aka prior conviction for dishonesty) or the defendant’s testimony wouldn’t otherwise benefit the defense’s strategy.

    Credibility is important because witnesses may not make inconsistent statements at trial which is another way of bringing out an issue with the prosecution’s case. Unlike witness credibility, inconsistent statements at a preliminary hearing and a trial or motion imply that the witness is either embellishing what actually happened or doesn’t recall it clearly.

    At a trial, the prosecution isn’t obligated to prove its case to a scientific certainty but only beyond a reasonable doubt. This is still a high evidentiary standard and so your criminal defense lawyer should use every opportunity to create reasonable doubt. The Pennsylvania Rule of Evidence 607(b) permits an attorney to impeach a witness with any evidence “relevant to that issue”. Impeachment, therefore, may expose a witness’s partiality, motive, prior convictions, character for untruthfulness as well as his lack of perception, recollection, or prior inconsistent statements. There are actually eight (8) categories which are open for impeachment:

    1. Competency – a witness’s ability to communicate, understand the consequences of lying, recall and proceed;
    2. Partiality – a person’s bias, prejudice, or other motivations which could corrupt or coerce their testimony;
    3. Motive – an issue that could possible color a witness’s testimony;
    4. Prior inconsistent statements – inconsistencies imply a possible credibility issue;
    5. Prior criminal convictions – a witness’s conviction for crimes for dishonesty and false statements can help prove untruthfulness;
    6. Untruthful character – a witness’s reputation for untruthfulness through a reputation witness;
    7. Untruthful acts – when a witness offers reputation testimony as to a person’s character that same witness may be asked about acts of untruthfulness; and
    8. Contradictions – a witness’s testimony may be contradicted by physical evidence, other accounts, or by witness’s inconsistent conduct.

    Pennsylvania allows a fairly broad range of impeachment material but the attorney using it must have a good faith belief that the matters introduced are relevant and admissible. The cross examining attorney, therefore, can’t use something if it’s obviously not true. The attorney is also prohibited from asking questions in a fishing expedition type fashion (i.e. is it true that you …) The issue of witness credibility, again, is critical to your defense and this where a strong private investigator can dramatically change the outcome of a case from a defense standpoint.

    For more information on this topic I encourage you to read my newsletters and check out the free resources in the download section.

  • What did you say …or write about me? Admissible Hearsay – Trusting evidence without verifying it?

    Hearsay is a confusing concepts and even many lawyer misunderstand. Much of that misunderstand comes from “exceptions” to Hearsay.

    Hearsay is an out of court statement offered for the truth of the matter that is the subject of the statement. It can be spoken words but it can also be a written document, like a chemical report of blood from a DUI or a drug test report.   At trial, hearsay is inadmissible unless the attorneys stipulate (agree) that the statement is admissible. If there isn’t a stipulation, the district attorney must produce the statement’s declarant. While hearsay is generally inadmissible, courts will permit it at preliminary hearings. In Pennsylvania, there are 2 cases which are often cited by the prosecution Commonwealth v. Rick, 366 A.2d 302 (Pa. Super. 1976) and Commonwealth v. Branch, 437 A.2d 748 (Pa. Super. 1981). The district attorney will often say that he or she offering the statement or the document under “Rick and Branch.” The DA is telling the court that the document or statement is hearsay but that these 2 cases make it admissible hearsay.

    In the Rick case, a Pennsylvania State Trooper was investigating an accident but was unable to interview Defendant Rick, who was being treated for injuries at the hospital. The trooper, however, spoke with the attending physician, who provided a copy of the blood test – indicating Rick’s blood-alcohol level was .18% (more than 2 times the legal limit of .08 for a DUI in Pennsylvania). Rick was charged with driving under the influence (DUI) and the district attorney presented the report at the preliminary hearing but didn’t produce the doctor or any witness to testify about. While the defense objected to the report as hearsay, the judge allowed it into evidence.

    The judge ruled that although the chemist’s report, standing by itself, would have been inadmissible at trial as hearsay, the question at a preliminary hearing is not whether there is sufficient evidence to prove the defendant guilty beyond a reasonable doubt. At a preliminary hearing, this issue is whether the prosecution must be dismissed because there is nothing to indicate that the defendant is connected with a crime.

    In the Branch case, the defendant, Branch, was arrested for a shooting death—murder (homicide). At the preliminary hearing, the police officer testified that stated that the victim’s brother witnessed Branch shoot the victim. The victim’s brother, however, didn’t testify, although the prosecution said he would be available for trial. The judge in this case allowed the Hearsay at a preliminary hearing because the district attorney (prosecution) represented that the victim’s brother would be available as a witness at the time of trial. The judge therefore ruled that hearsay evidence, while inadmissible at trial, may be admitted at the preliminary hearing stage and may be sufficient to establish a prima facie case.

    Hearsay is an important concept in any criminal trial.   Your attorney must have a strong command of it to properly defend you.

  • Can They Get Me Twice? Pennsylvania and Double Jeopardy

    Double jeopardy is often a misunderstood concept. Generally it means that you can’t be prosecuted twice for the same criminal charge arising from the same incident but there is more to this concept.

    The Fifth Amendment to the United States Constitution provides us with the right against double jeopardy. This Amendment is binding on the states like Pennsylvania and New Jersey, through the due process clause of the Fourteenth Amendment to the United States Constitution. Pennsylvania’s Constitution also has a double jeopardy clause. Both Pennsylvania’s and the US Constitution’s Double Jeopardy Clause protect a person against the following:

    1. A second prosecution for the same offense after acquittal (not guilty);
    2. A prosecution for the same offense after conviction; and
    3. Multiple punishments of the same offense.

    A key issue for double jeopardy cases is when jeopardy actually attaches to the State’s or Federal Government’s case. While a person can’t be tried twice for the same crime, the United States Supreme Court has ruled that there is nothing unconstitutional about a state and the federal government prosecuting someone for the same crime.

    For example, if you committed a crime in Pennsylvania that also broke some federal law both the federal government and the Commonwealth of Pennsylvania could prosecute you. While the federal government allows this type of prosecution, Pennsylvania will only allow a person to be tried by the federal government and the state if it appears that the state and federal prosecution represents substantially different interests. The permissible prosecution by the state and federal government is known as the dual sovereign doctrine.

    Jeopardy attaches to a prosecution when a person is put to trial before the trier of fact (judge or jury). In a jury trial jeopardy attaches only after a jury is impaneled (12 jurors and 2 alternate jurors seated and sworn. In a non-jury trial (bench trial), jeopardy attaches when the judge begins to hear evidence. Double jeopardy does not attach to preliminary hearing proceedings because there is no possibility that a person could be convicted. Double jeopardy also doesn’t attach when a judge accepts a guilty plea that is conditional. Its only when a guilty plea is unconditional and the plea is actually accepted does jeopardy attach.   Finally, in juvenile proceedings jeopardy attaches if the purpose of the proceedings is to determine whether a juvenile has committed any that violated crimes code in Pennsylvania. A juvenile who is subject to an adjudication hearing may not later be retried as an adult for the same charges.

    If you have more questions about criminal concepts, I encourage you to read my books, watch my videos or subscribe to my monthly newsletter. All of these resources are available right here on the website.

  • 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.