Felony Gun Charges Dismissed and Probation Detainer Lifted for Working Man

In May of 2017, a ZLF client found himself charged with Carrying a Firearm Without a License when a firearm was located under the front passenger seat of his vehicle. Our client was giving a ride to a neighbor's friend when he failed to use a turn signal. A traffic stop was conducted, and without any prior knowledge that the passenger was armed, the passenger stuffed a gun under the front passenger seat of the vehicle. Both men blamed one another for the gun, and as a result, the police charged them both with Carrying a Firearm Without a License based upon a theory of joint constructive possession. To make matters worse, the client was held in jail on a probation detainer for a non-violent offense pending the resolution of the case. 

Attorney Zuckerman conducted research on the passenger's background, discovering that he had prior firearms and violent crimes violations. Thereafter, he took this information to the District Attorney's Office, and after a fair review of the case file, the DA's office agreed to dismiss all gun possession charges at the preliminary hearing. On the other hand, the front seat passenger is properly facing trial for the firearms offenses. 

The client's case resolved with a guilty plea to a Driving on a Suspended License violation for 60-days of house arrest. One week after the gun charges were dropped, the detainer was lifted and the client returned to work to support his girlfriend and her children. 

This client was 100% innocent, and is grateful to the DA's office for their diligence in comprehensively reviewing the facts before making the right decision to only prosecute the responsible party. 

Reckless Driving Charges Dismissed After Police Officer Arrived Too Late

A recent ZLF client found himself charged with Reckless Driving and Safe Speed violations, facing a 6-month license suspension, over $400 in fines and court costs and likely loss of employment upon conviction. The client was accused of speeding through a red light at an intersection with heavy pedestrian traffic. Upon being stopped by a police officer, a verbal argument ensued, in which the officer ended up charging him with the most serious traffic charge he could. Our office was prepared for trial, as it appeared unlikely from the circumstances that the police officer would be willing to negotiate any reduction. 

This case is a classic example of why having an attorney to represent you on serious traffic offenses is money well spent. Although the magistrate's office was particularly busy that day, the Judge made an effort to call our case first to accommodate Attorney Zuckerman's schedule. At the time the case was called, the police officer was not present, which led to the dismissal of the case. Minutes later, the officer was observed entering the magistrate's office. Had the man been unrepresented, his case would not have been called first, and the charges would not have been dismissed. 

Felony 1 Burglary Charges Withdrawn for Wilkinsburg Man

In late 2016, a ZLF client was charged with Burglary and Simple Assault, accused of entering another's home and getting into a physical altercation while intoxicated. Prior to this incident, the client had a clean record and a full-time job. Burglary is a 1st-Degree Felony punishable by up to 20 years in jail. If convicted, the client would have lost his job and would have likely faced county jail time, even for a first conviction. 

At the preliminary hearing, Attorney Zuckerman was able to negotiate an agreement for the client to pay restitution to the homeowner, remain out of trouble for 90 days, while completing drug, alcohol and mental health evaluations. Upon providing proof of completion at a March 2017 review hearing, the Commonwealth withdrew the burglary offense, allowing the client to plead guilty to summary offenses, punishable by only fines and court costs. 

This resolution spared him from the stress of a costly trial and gives him the opportunity to expunge the felony burglary charge from his criminal record

 

Prohibited Offensive Weapons Charge for Brass Knuckle Possession Dismissed

A recent ZLF client with a clean record was found in possession of brass knuckles in a carry on bag, and was charged with Prohibited Offensive Weapons in Allegheny County. If convicted, some of the penalties include up to 5 years of jail time or probation, and a permanent criminal record that cannot be expunged. 

It is a defense to the Prohibited Offensive Weapons charge if the item is possessed solely as a collectors item. At the preliminary hearing, the defense offered photographs to establish that the brass knuckles were originally owned by a family member, who was an avid collector. The evidence also established that the brass knuckles were found in the same bag as multiple collectible items given to the client by a family member, which helped establish that this weapon was only kept as a collector's item. 

Based upon this evidence, the magistrate found that there was not a prima facie case for the Prohibited Offensive Weapons offense. The client is now eligible to expunge this matter from a criminal record. 

License Suspension Avoided For Client Who Missed Court

A ZLF client was recently charged with Driving on a Suspended License, in connection with a traffic stop occurring in Butler County. Due to paperwork issues that occurred in another state, the client's driving privileges were suspended for a longer period of time than what was required due to an diversionary program resolution of a DUI charge. In short, the client was very close to having his/her driver's license restored.

While unrepresented, the client was convicted at the magistrate level of the DSL offense, adding an additional 12 months to the original suspension. This result would have a disastrous impact upon his/her ability to take positions within his/her corporation requiring frequent travel. 

The client ultimately called ZLF with little time to spare. Our firm promptly filed a summary appeal before the Butler County Court of Common Pleas just before the 30 day deadline. We also filed a delay request letter with PennDOT, which was granted. This allowed the suspension to be delayed until the case was resolved.

 On the summary appeal hearing date, both the client and officer failed to appear. The Rules of Criminal Procedure provide that the Court should dismiss the appeal if the Defendant fails to appear, even if the citing officer also fails to appear. However, based upon negotiations with the prosecution, an agreement was reached to hold a stipulated trial, where the client was convicted of Driving Without a License. This charge carries no license suspension for a first offense. 

Although it is imperative to appear for all required court dates, the attorneys at ZLF were able to help a client achieve a desired outcome in his/her absence. 

Simple Assault Charges Withdrawn in Allegheny County on Trial Date

In April of 2017, a ZLF client employed as a tow truck driver was scheduled for a non-jury trial in Allegheny County on charges of Simple Assault and Harassment. The Commonwealth alleged as follows: (1) that the client had rammed the victim's vehicle on multiple occasions, causing damage to the vehicle and (2) that the victim was punched once and shoved into the side of the client's tow truck, causing broken ribs. 

At the preliminary hearing, the prosecution would not resolve the case with a plea to summary offenses. After conducting a preliminary hearing, the charges were held for court and scheduled for trial. No plea offer was made in advance of trial. 

As part of trial preparation, ZLF obtained copies of the emergency room records from the incident date, where the CT scans and physical examinations of the alleged victim revealed no evidence of bruising, swelling or fractures (i.e. broken ribs). Although the prosecution is not required to provide evidence of serious injury to prove a simple assault case, the medical evidence helped demonstrate that the alleged victim was not credible. Towing records also revealed a lack of damage to the alleged victim's vehicle, contradicting the claim that the vehicle was rammed. 

On the date of trial, the client accepted a plea offer where the misdemeanor Simple Assault charges were withdrawn in return for a guilty plea to summary crimes of Harassment and Disorderly Conduct for probation. 

Although this was a case that the prosecution should have agreed to resolve at the preliminary hearing, proper trial preparation helped achieve the proper result. 

Unsworn Falsification Charge Dismissed for Allegheny Co. Man

A retiree was recently charged with Unsworn Falsification to Authorities and the Unlawful Sale and Transfer of a Firearm, based upon his incorrect answer on a firearm purchase application. As a teenager in the 1970's, the client was convicted of a drug offense for possessing marijuana, and answered a question about prior drug crimes convictions incorrectly. 

The court dismissed the charges at the preliminary hearing, concluding that the Defendant made an error on the form, and did not act knowingly with the intent to mislead a public servant. Specifically, since the guilty plea to this charge happened over 40 years ago, the Court found that there was insufficient evidence to demonstrate that the client had any recollection of the charge at the time the application was completed. 

ZLF is now working on a full expungement petition for the client, which is expected to be ordered within the next 90 days. 

If you have ever had any involvement whatsoever with the criminal justice system, you should not attempt to buy a gun or apply for an open carry permit without reviewing your own criminal history with a lawyer. 

4th Offense DUI Charges, Ignition Interlock Violations Dismissed for Allegheny County Man

A ZLF client was charged with a 4th Offense DUI in connection with a two-vehicle accident in Allegheny County. We are please to announce that after the preliminary hearing, the charges were dismissed due to a lack of sufficient evidence. This resolution spared the client from a mandatory 1-2 year state prison sentence without eligibility for house arrest. 

In the summer of 2016, the client was operating a vehicle around a bend when his vehicle hydroplaned on the wet roadway, veered into an oncoming lane of traffic, striking the victim's vehicle. An independent eyewitness followed the client's vehicle for approximately 1/2 mile, observing no erratic driving behaviors prior to the crash. 

The client was treated at the hospital for injuries in connection with the crash. In the course of his treatment, a urine screen yielded a positive result for the presence of narcotics. However, neither the client's blood nor breath were tested. The client was not subjected to field sobriety testing, was not evaluated by a drug recognition expert, and did not display regular signs of impairment during his interaction with police. 

Recent amendments to Section 1547 of the PA Motor Vehicle Code only permit the introduction of blood or breath tests into evidence during DUI prosecutions. As there was no blood test conducted, and there was no independent evidence to suggest that the client was under the influence of narcotics at the time of operation, the charges were properly dismissed by the Court. 

Common Criminal Charges for St. Patrick's Day Arrest in Pittsburgh

Pittsburgh St. Patrick's Day Arrests

Every year on St. Patrick's Day, City of Pittsburgh Police conduct multiple arrests and issue citations to intoxicated persons. If you've found this article, you've probably already been charged with an offense, and are seeking more information about your individual charges and on how to manage your situation moving forward. 

Here are some of the most frequently charged offenses on St. Patrick's Day in Pittsburgh and Western Pennsylvania:

1. Public Drunkenness

No surprise - summary public drunkenness citations are commonly issued on St. Patrick's Day to individuals who appear in public and are intoxicated to a degree that they endanger themselves, endanger other people, endanger property or annoy others in close proximity. Those who are seen by police stumbling, vomiting, or otherwise show signs of being too drunk will be cited for public drunkenness. 

Possible Consequences: Approximately $450 in fines and court costs, maximum sentence of up to 90 days in jail, and criminal record that cannot be expunged for minimum period of 5 years, and possibly permanently. 

2. Public Urination & Defecation

Have to pee and there's a line at the next bar? Hold it, or you'll most certainly be picking up a public urination citation. Both police and local magistrates are cracking down on incidents of public urination. Public urination is considered a local ordinance summary violation. 

Possible Consequences: Approximately $450 in fines and court costs and record searchable on Unified Judicial System Portal.

3. Disorderly Conduct

Disorderly conduct is a catch-all provision that applies to a wide array of drunken behavior, and applies when an individual engages in certain types of prohibited conduct which causes public inconvenience while serving no legitimate purpose. You may find yourself cited with disorderly conduct for fighting, using foul language, disrespecting police officers, or otherwise causing a nuisance. DC can be graded as a summary, or a 3rd degree misdemeanor if serious public inconvenience occurred. 

Possible Summary Consequences: Approximately $450 in fines and court costs, maximum sentence of up to 90 days in jail, and criminal record that cannot be expunged for minimum period of 5 years, and possibly permanently. 

Possible 3rd-Degree Misdemeanor Consequences: Punishable by up to 1 year of jail/probation, permanent criminal record, fine of up to $2500, along with court costs. 

4. Underage Drinking

If you are under the age of 21, and you drank any amount of alcohol or held a drink, you may be facing Underage Drinking charges. Police do not need to breathalyze you to prove that you committed this offense. Circumstantial evidence of your consumption of alcohol is sufficient, such as having glassy or bloodshot eyes, an odor of alcohol on your breath, slurred speech or making a direct admission to having consumed alcohol. 

Possible Summary Consequences: 90-day license suspension for first offense (1-yr and 2-yr suspensions for 2nd and 3rd offenses), approximately $450 in fines and court costs, maximum sentence of up to 90 days in jail, and criminal record that cannot be expunged until the person turns 21 years of age. 

5. Defiant Trespass

If you were drunk, were asked to leave a bar, refused to do so, and continued pleading with the bouncer or police officer to let you back into the bar, you're probably facing a defiant trespass offense. Defiant trespass applies when a person enters or remains in a place after being given notice to leave. Depending on the circumstances, it may be charged as a summary offense or a 3rd-degree misdemeanor. 

Possible Summary Consequences: Approximately $450 in fines and court costs, maximum sentence of up to 90 days in jail, and criminal record that cannot be expunged for minimum period of 5 years, and possibly permanently. 

Possible 3rd-Degree Misdemeanor Consequences: Punishable by up to 1 year of jail/probation, permanent criminal record, fine of up to $2500, along with court costs. 

6. DUI - Driving Under Influence of Alcohol or Drugs

It's much cheaper to use Uber or Lyft than it is to hire a lawyer and pay off thousands of dollars in fines and court costs. Especially when DUI enforcement is at it's peak during the St. Patrick's Holiday. Nonetheless, some well-intentioned individuals who head out only to have a beer or two otherwise find themselves drinking more than expected, and chance it by driving home. Assuming you haven't killed or seriously injured someone, most of the common DUI penalties can be found here. 

7. Criminal Mischief

If you damaged or attempted to damage personal property, you may find yourself charged with Criminal Mischief. This offense can be graded as low as a summary for damage below $500, all the way up to a 3rd-Degree Felony for instances of severe property damage. To learn more about the consequences for your particular offense, please visit the above link. 

8. Resisting Arrest

If police attempted to place you into custody, and you wiggled, turned your body away from the officer, struggled or otherwise engaged in violent behavior, you will find yourself charged with Resisting Arrest. A person commits this crime when he or she intends on preventing a lawful arrest and either creates a substantial risk of bodily injury to police, or behaves in a manner requiring the use of substantial force to overcome resistance. 

Possible Consequences: 2nd Degree Misdemeanor punishable by up to 2 years of jail/probation, $5,000 fine, permanent criminal record. 

9. Simple Assault

If you threw punches, got into a bar fight, or became physically aggressive with police or other individuals, you can be charged with Simple Assault. This crime applies when a person causes, or attempts to cause, bodily injury to another person. Bodily injury includes impairment of physical condition or substantial pain. 

Possible Consequences: 2nd Degree Misdemeanor punishable by up to 2 years of jail/probation, $5,000 fine, permanent criminal record. 

10. Aggravated Assault on a Police Officer

Police officers and medical personnel are afforded special protection under the law. A crime that is a simple assault on a regular citizen will be charged as an Aggravated Assault on a Police Officer, a 2nd Degree Felony. For example, a person who causes a police officer to sustain minor injuries may be facing felony aggravated assault charges. 

Possible Consequences: Punishable by up to 10 years in jail and a $25,000 fine. 

11. Aggravated Assault - Generally

If you caused, or attempted to cause someone else to sustain serious bodily injury, or used a weapon to inflict injury on another, you may be facing aggravated assault charges. For example, if you swung a beer bottle at another person, knocked someone out cold during a fight, or otherwise caused someone to be seriously injured, you will be facing more than just a Simple Assault offense. 

12. Harassment

If you have struck, shoved, kicked or had unwanted physical contact with another, you may find yourself charged with summary harassment. You may be charged with summary harassment instead of Simple Assault if there were no injuries or your conduct was not as egregious and your "typical" fight. 

Possible Summary Consequences: Approximately $450 in fines and court costs, maximum sentence of up to 90 days in jail, and criminal record that cannot be expunged for minimum period of 5 years, and possibly permanently. 

CALL NOW - DONT WAIT UNTIL YOUR CHARGES COME IN THE MAIL TO SPEAK WITH AN EXPERIENCED CRIMINAL DEFENSE ATTORNEY

If you have had any interaction with police on St. Patrick's Day, you should immediately contact the Zuckerman Law Firm at 412-447-5580 for a free consultation. You can begin to feel better about your situation by speaking with a knowledgable criminal defense attorney who may assist you in navigating the justice system from start to finish. 

Unlawful Gun Purchase Charges Dismissed for Allegheny Co. Man with Juvenile Record

Local law enforcement charged a ZLF client with the Unlawful Sale/Transfer of a Firearm and Unsworn Falsification to Authorities in connection with an attempt to lawfully purchase a gun. The client had a prior juvenile adjudication for a 1st Degree Misdemeanor offense punishable by up to 5 years in jail. Not knowing that this was considered a conviction under PA law, he improperly answered the question wrong about whether or not he was convicted of a charge punishable by up to 1 year in jail. 

The court dismissed the charges at the preliminary hearing, concluding that the Defendant made an error on the form, and did not act knowingly with the intent to mislead a public servant. The client is now eligible to expunge his juvenile record and the records of his arrest on this case. 

If you have ever had any involvement whatsoever with the criminal justice system, you should not attempt to buy a gun or apply for an open carry permit without reviewing your own criminal history with a lawyer. 

Warrant Required to Draw Blood After PA DUI Arrest

BIRCHFIELD DECISION CHANGES PA DUI LAW

On June 23, 2016, the United States Supreme Court ruled that the Fourth Amendment of the US Constitution permits warrantless breath tests incident to lawful arrests for drunk driving but not warrantless blood tests. In the Birchfield v. North Dakota decision, the Supreme Court considered three different cases from North Dakota and Minnesota: 

1. Refusal of Blood Test - Birchfield: After his DUI arrest, Birchfield refused blood testing and was charged with a misdemeanor offense under North Dakota law for refusing a blood test. He entered a conditional guilty plea, later arguing that the 4th Amendment prohibited North Dakota from making a test refusal a crime. 

2. Refusal of Breath Test - Bernard: After his DUI arrest, Bernard was notified by police that refusing a breath test was a crime. After refusing to submit to a breath test, Bernard was charged with a 1st degree misdemeanor under Minnesota law for refusing the test. Bernard argued that warrantless breath tests are impermissible under the 4th Amendment. 

3. Consent to Breath Test Coerced by Threat of Criminal Penalties - Beylund: After his DUI arrest, Beylund consented to a blood draw after being informed that he was required to submit to testing and after being threatened with enhanced criminal penalties by the arresting officer. Beylund argued that his consent to submit to a blood draw was coerced by the officer's threat of enhanced criminal penalties. 

IMPACT ON BREATHALYZER TESTING

In its decision, the Supreme Court held that warrantless breath tests constitute a permissible search incident to the arrest of a DUI suspect. For the search to be permissible, the police must have had probable cause to arrest the particular offender, or in other words, must establish that it is more likely than not that the person arrested committed a DUI. 

In deciding that a warrant was not required, the Supreme Court found that process of obtaining a breath test is a minimal intrusion, as breathing is a natural process, nobody "owns" the air in their lungs, the air sample is not capable of being retained by police, and testing is typically conducted in a private setting. Ultimately, the Supreme Court held that the warrantless breath test of Bernard was lawful, and that Bernard had no right to refuse it. 

IMPACT ON BLOOD TESTING

In focusing on the enhanced intrusion on the person, the Supreme Court ruled that a warrant is required when requesting a blood test after a DUI arrest. Unlike minimally intrusive breath tests, blood is a part of the human body, people don't shed blood like they expel air from their lungs, and a sample can only be extracted only through piercing the skin with a needle. Unlike air samples which cannot be retained, blood samples can be preserved by law enforcement, and information aside from one's BAC can be obtained from the sample. 

As such, the Court held that Birchfield simply refused an unlawful search, and couldn't be punished for this. 

CONSENTING TO A BLOOD TEST? 

When a person provides valid consent to a search, a warrant is not needed. However, a driver may not be deemed to have consented to a blood draw when the officer threatens enhanced criminal penalties, and tells the driver he or she is required to submit to a warrantless blood draw under a state's implied consent law. 

In Beylund's case, the Supreme Court held that North Dakota had to re-evaluate whether or not his consent was valid, as it was based upon the erroneous warning by the police officer that he was required to submit to a warrantless blood draw. The case was remanded to state court to determine whether or not consent was valid in light of the officer's inaccurate explanation. 

LICENSE SUSPENSIONS FOR REFUSING A BLOOD TEST

The suspension of your license is civil penalty imposed by PennDOT, and not a criminal penalty. While some attorneys have challenged license suspensions based upon this decision, it does not appear that this case prevents PennDOT from enforcing license suspensions for a driver's refusal to submit to a blood or breath test. 

CURRENT IMPACT OF BIRCHFIELD ON PA DUI CASES

Unlike North Dakota who made it a separate crime to refuse testing, Pennsylvania does not make a test refusal a separate criminal offense. However, PA does impose enhanced criminal penalties for refusing a blood or breath test. 

In Pennsylvania, the implied consent laws will no longer allow police to draw a person's blood simply because of a DUI related arrest. Police will either need to obtain a warrant, or obtain your valid consent to submit to testing. 

If you are facing a DUI charge and have submitted to or refused a blood draw, you should contact a local DUI defense attorney who practices in your county for further guidance. However, the following changes have occurred recently in many Western Pennsylvania jurisdictions: 

1. Impact on Non-ARD DUI Cases: For non-ARD cases, many prosecutors are withdrawing highest tier (.16% and above BAC), high tier (.10-.159% BAC), and lowest tier (.08-.099% BAC) charges, along with enhanced DUI refusal penalties, when the driver was threatened with enhanced criminal penalties for refusing a blood draw. However, other DA's offices are not withdrawing charges, requiring your lawyer to file an Omnibus Pretrial Motion to seek a dismissal of enhanced DUI charges based upon a refusal or improperly coerced blood draw. 

2. Impact on ARD DUI Cases: In warrantless blood draw and refusal cases, most prosecutors are allowing drivers to enter into the ARD program on general impairment charges, which carries no license suspension. However in some counties, prosecutors are not reducing high and highest tier offenses in connection with ARD offers. Keep in mind that if you have refused testing, you are still facing a 12-month license suspension for refusal, as this is considered a civil penalty. 

3. Continued Prosecution of General Impairment & DUI Accident Cases: Prosecutors will continue to prosecute DUI - General Impairment (lowest tier) and DUI - General Impairment with Accident (high tier) offenses. These charges can be prosecuted without the use of improperly collected BAC evidence, because they simply require proof that you drank alcohol to a degree that rendered you incapable of safe driving. 

4. Police Will Try To Obtain Consent by Changing Test Warnings: District Attorneys' Offices have now advised police officers to revise the implied consent warnings by removing all reference to increased criminal penalties on the DL-26 form. Prosecutors are hoping that by removing the criminal penalty references, that drivers will be unable to argue that their consent to a blood draw was improperly coerced. This legal issue remains undecided.

5. Drug DUI Cases: As there is no breath test for Drug DUI cases, blood will need to be drawn to determine if there is a controlled substance and/or metabolite in your system. Without blood results, police will need to establish that you drove under the influence of a drug or combination of drugs which rendered you incapable of safe driving. In proving this, police may rely upon Drug Recognition Expert testimony, but drivers are infrequently examined by DREs after arrest. Alternatively, prosecutors will have to rely upon the testimony of police officers who lack the expert training of DREs, which may make it easier to earn an acquittal. 

6. Greater Reliance on Breath Tests: Police will either need to work in conjunction with magistrates to expedite the processing of search warrants, or will simply shift to breath testing instead. Breath testing is much more vulnerable to attack at trial than is blood testing. 

To read the Birchfield decision, click on this link

Evidence Suppressed in Felony Drug Possession Case, Charges Withdrawn

A client was charged with felony Possession with Intent to Deliver Cocaine and Criminal Use of a Communication Facility. The lawyers at ZLF filed a Motion to Suppress Evidence based upon the police lacking probable cause to believe that he had committed, or was in the process of committing, a criminal act. The court agreed, and all evidence recovered was not permitted to be used against him, leading to the full withdrawal of criminal charges. 

In early 2015, police arrested another individual for a felony drug charge. Thereafter, they attempted to utilize this person as a "confidential informant," who would receive leniency on their charges in return for purchasing narcotics off of another suspected drug dealer. Customarily, an investigating officer would obtain extensive details about both the CI and the target suspect to ensure that the information being received is reliable. Thereafter, the CI would be used to arrange for the purchase of a known quantity of drugs at a particular location, completing the purchase in the presence of police officers. 

Despite being led by an officer with decades of experience, this particular investigation was mishandled from the start. Aside from race, police officers obtained no information from the CI about the target suspect, nor did they properly verify that the CI was a reliable source of information. Furthermore, rather than listen to the phone calls allegedly exchanged between the target and CI, the police did not personally overhear any discussion between the CI and caller, leading them to rely upon the CI's statements alone.

On the incident date, the client - an African-American male - pulled his vehicle into the parking lot of a convenience store. The CI did not visually identify the client as the individual with whom she previously spoke. Police did not observe the client engage in any unlawful activity, nor did they have the CI attempt to buy drugs from the client. As part of a pre-determined decision to make an arrest, numerous police officers drew their weapons and arrested the client. However, the police argued that he was merely being "detained" for further investigation, and that the encounter converted to an arrest when they noticed an odor of marijuana.

A suppression hearing was held on the matter, where the details of the mishandled investigation were brought to light. During cross examination, the officers were less than forthcoming about the leniency promised to and received by the CI. After writing legal briefs, the Court ruled that the police did in fact arrest the client without probable cause, ordering that all recovered evidence be suppressed. This led to the charges being withdrawn by the Commonwealth. 

Client Charged With Illegal Gun Purchase Receives ARD With No Penalty

As an 18 year old, a ZLF client received probation for a 1st-degree misdemeanor offense punishable by up to 5 years in prison. Unbeknownst to him, this offense made him ineligible to buy a firearm. In 2015, as a 37 year old father and working professional, he went to purchase a firearm and checked "no" when answering a question about whether or not he was convicted of a charge punishable by 1 year or more in jail. Rather than consider this as the honest mistake it was, the Pennsylvania State Police charged him with the Unlawful Sale & Transfer of a Firearm, a 3rd-Degree Felony, and Unsworn Falsification to Authorities, a 2nd Degree Misdemeanor. These offenses allege that he had the intent to mislead a public servant for the purpose of acquiring a gun. 

A conviction for either offense would be considered a "crime of dishonesty," and may have caused him to lose his job. Given the circumstances, he chose to fight the case as far as it needed to go, as he had no intent to mislead a public servant. 

After the preliminary hearing, the lawyers at ZLF filed an Omnibus Pretrial Motion, challenging whether or not there was probable cause to support the charges. Upon recognizing the strength of the defense's case, the Commonwealth agreed to admit the Defendant into the ARD program

Prior to arguing the pre-trial motions, the presiding Judge agreed to let the client into ARD, without imposing probation or nearly $1,500-$2,000 in fines and court costs. This resolution effectively dismissed the case against the client with no negative consequences, allowing him to move on with his life. 

Client Found Not-Guilty of Carrying Firearm Without a License

A ZLF client was charged with Carrying a Firearm Without a License, a 3rd-Degree Felony punishable by up to 7 years in prison. After a half-day non-jury trial, the client was found not guilty of the firearms offense. At the conclusion of trial, the client accepted a guilty plea to lesser drug charges for Probation Without Verdict, a diversionary resolution for first-time drug offenders which will lead to a record expungement upon the successful completion of probation. 

On the incident date, the client borrowed a vehicle from a family member who was a former member of law enforcement. Unbeknownst to the client, the family member failed to provide any notice that there was a firearm located under the driver's seat of the vehicle. Upon being stopped for a speeding infraction, police did not observe the client reach in the direction of the gun, but noticed "unusually nervous" behavior. Upon searching for an insurance card in a purse, police observed items of drug paraphernalia. When the client exited the vehicle, police observed the firearm in plain view under the seat. 

As the gun was not physically possessed by the client, the case turned on whether or not the Commonwealth could prove constructive possession - that the client had both the power to control and intent to control the weapon. At trial, the Commonwealth argued that when factoring in the proximity of the weapon to the client, coupled with the nervous behavior, that this demonstrated an intent to control the weapon. 

The defense presented testimony from the family member, who testified that the gun was his, that he forgot he left it under the seat of his vehicle, and never told the client about it's presence. Furthermore, as there was no reaching motion towards the firearm, the nervous behavior was properly attributed to the possession of drug paraphernalia. Viewing the defense testimony as credible, the Court properly found the client not guilty of the firearms offense. 

Upon the conclusion of trial on the gun charge, the prosecuting attorney graciously offered a plea to the lesser drug charges for Probation Without Verdict, a diversionary program for first-time drug offenders which may lead to a criminal record expungement. This resolution allowed the client to maintain employment, avoid a 6-month license suspension, and convicted felon status. 

New PA Ignition Interlock License Law

NEW PA IGNITION INTERLOCK LICENSE LAW

According to MADD, ignition interlocks helped prevent 1.77 million DUI’s nationwide and 78,210 potential DUIs in Pennsylvania. Pennsylvania is now the 26th state to require that ignition interlocks be installed on the vehicles of convicted, 1st-time DUI offenders.

Senate Bill 290, signed into law on May 23, 2016, effectively does two things. First, it requires most convicted, first-time DUI offenders to have an ignition interlock system installed in their vehicles. Second, it allows DUI offenders to regain their driving privileges without serving their full license suspension through the issuance of Ignition Interlock Limited Licenses.

Ignition Interlock System Required for 1st Offense, High and Highest Tier DUI Convictions

The bill imposes a requirement upon those convicted of a 1st DUI offense with a Blood Alcohol Content (BAC) of above .10% to have an ignition interlock installed and used in their vehicles for a one-year period. Those who have a BAC of .099% or below, or have been convicted of a DUI General Impairment offense, will not be subject to the interlock requirement.

This ignition interlock requirement does not apply to 1st DUI offenders who are admitted into the Accelerated Rehabilitative Disposition (ARD) program. On top of approximately $1,000-$2,000 in fines and court costs, convicted offenders can now expect to pay a $70-$150 ignition interlock system installation fee and a $60-$80 monthly maintenance fee.

Ignition Interlock Limited License for Convicted 1st-Time DUI Offenders

An Ignition Interlock Limited License (IILL) allows a person to operate a vehicle properly equipped with an Ignition Interlock System. As a major benefit for 1st-time convicted DUI offenders who are not eligible for ARD, Senate Bill 290 now permits qualified 1st DUI offenders to obtain an ignition interlock license during the period of suspension. 

Eligibility for an Ignition Interlock Limited License

Section 1556 of the Motor Vehicle Code allows a DUI convicted driver to drive vehicles equipped with the proper ignition interlock equipment. To be eligible, the applicant must:

  • Be suspended or revoked for a DUI offense occurring in Pennsylvania, or a similar offense in another state; or
  • Be suspended or revoked for refusing a blood/breath test; and
  • Must provide proof to PennDOT that any vehicle to be operated by the individual is equipped with an approved ignition interlock system.

A person is ineligible to obtain an IILL if he/she:

  • Was not previously licensed in any state;
  • Is required to take an examination;
  • Has his or her driving privileges cancelled or recalled;
  • Has an unsatisfied judgment as a result of a motor vehicle accident;
  • Is applying for an IILL for the purpose of operating a commercial vehicle;
  • Is disqualified under the Commercial Motor Vehicle Safety Act or the Motor Carrier Safety Improvement Act;
  • Was convicted for Homicide by Vehicle or Homicide by Vehicle While DUI, and the suspension occurs as a result of that conviction.

How Long Must I Wait to Qualify for an Ignition Interlock Limited License?

Section 1556(f) sets forth the time with which a DUI suspended driver must wait to obtain an Ignition Interlock Limited License. This waiting period is determined by the type DUI offense you have faced as well as the number of prior offenses you have.

Chemical test refusals are found at Section 1547 of the Vehicle Code, and DUI-BAC suspensions are found at Section 3804 of the Vehicle Code.

Lowest Tier DUI Offenses – General Impairment DUI and BAC of .08-.099%

·      1st Offense: No license suspension or ignition interlock requirement

·      2nd Offense: 12 month suspension imposed, must serve 6 months of suspension before qualifying for IILL

·      3rd or Subsequent Offense: 12 month suspension imposed, must serve 9 months of suspension before qualifying for IILL

Middle Tier Offenses – DUI for Minors with BAC of .02%, BAC of .10-.159% and General Impairment DUI with Accident Causing Injury or Property Damage

·      1st Offense: 12 month suspension with immediate eligibility for IILL

·      2nd Offense: 12 month suspension imposed, must serve 6 months of suspension before qualifying for IILL

·      3rd or Subsequent Offense: 18 month suspension imposed, must serve 9 months of suspension before qualifying for IILL

Highest Tier Offenses – DUI with .16% BAC or Higher, DUI with Drugs, and DUI Refusal of Blood or Breath Test

·      Highest Tier – 1st Offense (BAC of .16% or higher): 12 month suspension with immediate eligibility for IILL

·      Highest Tier – 2nd Offense (BAC of .16% or higher): 18 month suspension imposed, must serve 9 months of suspension before qualifying for IILL

·      Highest Tier – 3rd Offense (BAC of .16% or higher): 18 month suspension imposed, must serve 9 months of suspension before qualifying for IILL

·      Chemical Test Refusal – 1st Offense: 12 month suspension imposed, must serve 6 months of suspension before qualifying for IILL

·      DUI Chemical Test Refusal – 2nd Offense: 18 month suspension imposed, must serve 9 months of suspension before qualifying for IILL

·      DUI Chemical Test Refusal – 3rd or Subsequent Offense: 18 month suspension imposed, must serve 9 months of suspension before qualifying for IILL

Can I Obtain an Ignition Interlock Limited License if I’m on ARD?

ARD participants will not qualify for an Ignition Interlock Limited License, and will have to serve any license suspension in full. As a condition of participation in the Accelerated Rehabilitative Disposition (ARD) program, lowest-tier participants (general impairment or .08-.099% BAC) face no license suspension, high tier participants (.10-.159% BAC) face a 30 day suspension, highest tier participants (.16% or higher BAC, no BAC due to refusal or accident) face a 60 day suspension, and minor participants face a 90 day suspension.

However, successful ARD participants will earn the dismissal of their charges, and will not have to have an ignition interlock system installed on their vehicles at the conclusion of their suspension.

Application for an Ignition Interlock Limited License

In order to apply for an IILL, a petition must be filed via certified mail with PennDOT with proof of the interlock system installation for all vehicles that the applicant will drive. The applicant must also surrender his or her license, provide proof of insurance, and pay an application fee of $65. PennDOT then has 20 days thereafter to issue the license or deny the application.

Revocation of Ignition Interlock Limited License

If an IILL driver is convicted of any offense that carries a driver’s license suspension, or fails to comply with the requirements of a treatment program, PennDOT may either recall the IILL, or extend the IILL requirements for an additional period of time, up to the original length of suspension. For example, a first DUI offender who fails to complete court-ordered treatment faces an original 12-month suspension, and an additional IILL extension for a total of 24 months.

Positive BAC Readings Recorded on Ignition Interlock Equipment

            At the end of your suspension period, to no longer be subject to the ignition interlock license requirements, the vendor who installed your device will have to certify to PennDOT that you have not attempted to start the vehicle with a positive BAC reading of above .08%, that you have not taken or passed a re-test, or that you have not missed a required repair or inspection appointment within the last 2 months. The failure to comply with those terms can lead to your interlock requirements being extended.

Conclusion

The new ignition interlock law will have little impact upon the vast majority of 1st-DUI offenders who enter the ARD program. However, the act does provide some relief to convicted DUI offenders by allowing them to gain an IILL immediately, or after serving roughly half of their original suspension length. Most of the provisions will not go into effect until August of 2017.

If you’re facing a 1st Offense DUI in Pittsburgh, call the Zuckerman Law Firm today at 412-447-5580 for a free consultation.