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 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.
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.
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.
What is the Difference Between Probation and Parole in Pennsylvania?
A person charged with a crime is obviously looking for the best option. Ideally, person wants to avoid a conviction all together, but there are situations where a person is convicted or accepts a plea deal because the evidence is simply overwhelming. Sometimes, even the best criminal defense strategy can’t beat undisputed facts or evidence which meets the elements of an offense beyond a reasonable doubt!
County or even a state prison jail sentence is obviously a concern in many cases involving drugs, guns, and even DUI but in addition to jail, a convicted person will almost always receive a period of probation and or parole. These two terms are often used interchangeable and therefore incorrectly because people fail to understand the difference. Probation is a period of time where a person must meet certain requirements in order to comply with their sentence. These requirements include the following:
- Remaining arrest free
- Clean drug screens
- Making payments towards restitution
- Maintaining employment
- Completing certain educational programs and/or classes
While a person is on probation, there won’t be any issue as long as they meet the terms of that probation. If they fail to meet the requirements, however, the judge can resentence the person to a new period of probation and/or a period of incarceration. The purpose of probation is to rehabilitate a person without incarceration. What most people fail to understand, however, is that probation is simply a jail alternative and if a person violates the conditions of it, the usual prosecution argument is that probation isn’t working. If a person fails to meet the conditions of probation, the prosecution can recommend that probation be revoked and that the person be sentenced to a period of incarceration followed by another period of probation. With a probation sentence the court is specifically ordering that the person not be incarcerated.
Parole, however, is different. Here, a person is ordered into custody but is released before the end of his prison term. So if a person was sentenced to 3-6 years of state prison, he may be paroled at the end of the 3rd year (the minimum date.) Again, like probation, if a person fails to meet the requirements, they are in violation of the terms of their parole and risk being sent back to prison to serve the remainder of their term (the maximum.) The only time counted toward parole, however, is time spent in jail. If, for example, you are sentenced to 11.5 to 23 months of county jail and paroled at your minimum date, you may owe another 11.5 months, if you commit a violation in the 20 month.
If there’s a violation of county parole, a judge can order that a person serve the remaining time on parole in custody. If it’s state parole, the state parole board will make that decision. In my experience clients often fail to understand that probation and parole are simply alternatives to jail. While obviously jail is the worse of the alternatives, the conditions of probation and parole are sometimes difficult especially for people with drug addictions.
There are two types of violation—technical and direct. A direct violation occurs anytime a person is arrested and convicted on a new criminal case! All other violations, including arrests, that don’t result in a conviction are technical violations. A direct violation will almost always result in your probation being revoked or you being sent back to jail to serve the remainder of your term. A technical violation, such as a positive drug screen or a failure to make payments may not result in as a harsh of a penalty; this is where the right criminal defense lawyer can make the difference.
For more information on probation or parole contact our office or visit our free download section
Negativity: What makes prejudicial evidence admissible?
Regardless of whether you’re charged with an illegal gun, firearm (VUFA), DUI or a drug crimes, criminal trials in Pennsylvania and any other jurisdiction are always focused on the prosecution’s or district attorney’s ability to establish guilt beyond a reasonable doubt. Remember it’s the prosecution’s obligation to prove its case and the defense isn’t obligated to do anything—but that doesn’t mean forget a strategy. I always talk to clients about strategy during our first meeting
Evidence is an essential component of any criminal trial—there is no trial without it! The most important issue when it comes to evidence is the issue of relevancy. If evidence is relevant it’s generally admissible unless another rule of evidence (i.e. hearsay, character) or procedure (i.e. 4th Amendment violation, Discovery Violation) prohibits its introduction. The issue of relevancy is important not only at trial but during pre-trial motions such as a Motion to Suppress Evidence, a Motion to Quash and Preliminary Hearing.
Notice that the focus on the admissibility of evidence is whether it’s relevant and not whether it is fair, helpful, or harmful to the defense’s case. Evidence either helps or hurts one side so Courts aren’t going to exclude it on that basis alone. Frequently clients will tell us that a judge shouldn’t allow a specific piece of evidence because it unfairly depicts them in a negative light (pictures, videos) or that it was taken out of context (text messages, notes, letters writing).
The term that you will hear most often during a criminal proceeding is prejudicial. It’s important to understand, however, that prejudicial evidence isn’t necessarily inadmissible in court. The definition of prejudicial is “harmful or detrimental to someone or something.” Keeping in mind that definition, most, if not all, of the prosecution’s evidence will fall within it! The district attorney or prosecutor probably wouldn’t bother using the evidence if it wasn’t detrimental to the defendant or the accused person.
Pennsylvania Rule of Evidence 403 specifically allows even inflammatory evidence into a criminal proceeding as long as it’s relevant and helpful to the jury’s understanding of the facts. The judge, however, won’t admit evidence simply because it’s relevant. The judge also must weigh or balance if the evidence’s probative value outweighs its prejudicial value. The definition of probative is “having the quality or function of proving or demonstrating something.” A court will only, therefore, exclude relevant evidence if it’s prejudicial value exceeds its probative value. The term you will hear most often in court is that evidence is unduly or overly prejudicial. Evidence that doesn’t meet this category is admissible and your criminal defense lawyer needs a plan to deal with it.
As I’ve written in my books and monthly newsletters, the worst strategy is to ignore this evidence, especially in cases involving illegal guns and drugs. Prejudicial evidence can take form of picture, videos, text messages and phone calls. Even if prejudicial evidence is coming into your criminal case, your attorney can and should plan a strategy to address it! Step one of that strategy may be to file a motion to exclude it as overly prejudicial. If that motion isn’t successful, the next step is to identify ways to minimize it. For more information on criminal defense strategies, check out one of my 3 books on criminal defense, including my newest book—What Everyone Should Know about Guns, Drugs & Defense Lawyers in Pennsylvania.
“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.
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.