Armstrong Co. Client avoids 5-10 years of jail time on Prescription Fraud Case

The Zuckerman Law Firm represented a client facing 18 total counts for Insurance Fraud, Acquisition of a Controlled Substance by Misrepresentation, Forgery and Theft by Deception in Armstrong County. The information listed in this article is a matter of public record, and does not include the disclosure of confidential information.

The client stood accused of writing fake prescription medications over a span of several years. Specifically, full confessions were made by the Defendant to the employer and members of law enforcement. Due to the high number of Schedule II controlled substances acquired, the client’s Offense Gravity Score was increased to a 13, carrying a range of guideline sentences from 5-10 years, up to 6.5-13 years.

Pursuant to lengthy negotiations that occurred between the firm and Attorney General’s Office, an agreement was reached where the prosecution agreed to reduce the Offense Gravity Score from a 13 down to a 5 in return for a guilty plea to Acquisition of a Controlled Substance by Misrepresentation and Insurance Fraud. The agreement was accepted, but sentencing was left to the discretion of the Court. The guideline range sentence for the reduced OGS still carried anywhere from probation to 9-18 months in the county jail.

Prior to sentencing, the firm prepared and filed a detailed memorandum explaining the client’s rehabilitative efforts in a request for probation. At sentencing, the Court agreed that the client deserved a probationary sentence, and imposed a 2 year period of probation. This case serves as an important example as to why humanizing your client with both prosecutors and the court can be an effective tool in achieving justice.

Armstrong County Clients Found Not Guilty of Racing on Highways

Our firm is pleased to announce that our clients were found not guilty of Racing on Highways offenses in Armstrong County, Pennsylvania. This verdict saved both clients from incurring a mandatory 6-month driver’s license suspension.

A husband and wife couple stood accused of Racing on Highways after being lined up in adjacent lanes along a local highway. Upon the traffic light turning green, the citing officer claimed to have heard tires squealing and saw both vehicles accelerate to a point approximately 1/10th of a mile down the road, before one vehicle slowed and the other continued. The officer then proceeded to stop both vehicle charging the couple with Racing on Highways. One driver was also charged with exceeding speed limits in excess of 31mph, which carries a mandatory 15-day license suspension.

At the summary trial, the testimony of both clients was presented, establishing that neither party was engaged in a drag race as required by the statute. The court ultimately found the clients not guilty of this offense. However, the court found one driver guilty of speeding below 31mph, eliminating the 15-day suspension, and the other guilty of an inspection violation, carrying a fine only.

Charges Withdrawn Against Allegheny Co. Man Falsely Accused of Stalking, Harassment & Theft

Our firm is pleased to announce the decision made by prosecutors to fully withdraw felony Theft and misdemeanor Stalking and Harassment against a client who was falsely accused of domestic violence. The client faced a total of 6 separate legal actions as a result of unfounded allegations: 2 criminal cases, 1 PFA, and 3 ICC complaints. This blog post is being made with the client’s direct consent.

Upon learning that our client was in a relationship with another woman, his ex-girlfriend filed for a PFA, and accused him of stealing his own vehicle, which was titled in his ex’s name to lower insurance costs.

After posting bond on the theft case, his ex-girlfriend subsequently accused him of sending threatening text messages to her on three separate occasions. Police ultimately filed three separate indirect criminal contempt complaints (ICC) against the client without ever securing the alleged text messages as evidence, forcing him to pay thousands of dollars to bail bondsmen to secure his release. Police thereafter charged him with Stalking and Harassment.

Social media evidence sent by the ex-girlfriend to the client ultimately cleared his name. At the conclusion of the preliminary hearing on the theft charges, the ex-girlfriend sent a message to the client using her social media account, threatening to ruin his life if he would not take her back.

Thankfully, the client followed our advice for handling domestic violence allegations by preserving a copy of the message and providing it to legal counsel. This message in conjunction with other exculpatory text messages were reviewed with prosecuting attorneys, who made the responsible decision to withdraw all of his criminal charges. Additionally, all PFAs and ICC violations were withdrawn in family court.

Although victorious in a court of law, this came at a great cost to the client, who spent thousands of dollars in bond money and attorney’s fees to clear his name.

Increased Penalties for DUI and Suspended License Violations Likely Under Senate Bill 961

In April of 2018, the PA State Senate voted 45-4 to approve Senate Bill 961, which would change the PA Motor Vehicle Code under Title 75 to increase penalties for DUI offenders, and those who drive on suspended licenses. Although this bill is still awaiting approval in the House, it is strongly anticipated that it will pass and be signed into law.  This article is designed to highlight some of the differences in penalties between current Pennsylvania law and the law if SB 961 is approved.

Driving on a DUI Suspended or Revoked License

The biggest impact of this law will be on the treatment of those who drive on suspended licenses. Currently, a person who drives on a DUI suspended license who is not a habitual offender faces a summary offense punishable with a mandatory minimum sentence of 60 days of incarceration and a $500 fine, regardless of the number of prior convictions.

Since the DUI Suspended License cases are filed as summary offenses, typically District Attorneys offices are not involved in proceedings until the Summary Appeals phase, which allows significant latitude to negotiate pleas before the Magisterial District Courts. That will soon change, as the following modifications would apply: 

• Second Conviction for 75 Pa.C.S. 1543(b): Grading remains a summary offense carrying a mandatory 90 day jail sentence and a $1000 fine. This change increases the mandatory minimum sentence by 30 days and adds $500 to the total fine.  
• Third or Subsequent Conviction for 75 Pa.C.S. 1543(b): Increases the grading to a 3rd Degree Misdemeanor with a mandatory minimum jail sentence of 6 months in jail and a mandatory $2,500 fine. This modification turns the violation into a criminal matter, increases the mandatory minimum sentence by 4 months, and the mandatory fine by $2,000. 

DUI Penalties

The current DUI Penalties can be found here. Under current Pennsylvania Law, the highest graded offense that an offender will face is a 1st Degree Misdemeanor punishable by a maximum sentence of 5 years. Under SB 961, an offender will be charged with a 3rd Degree Felony punishable by a maximum sentence of 7 years if: 

• It is the offender's 4th DUI Offense; 
• It is the offender's 3rd DUI Offense if charged with a Highest Tier DUI for Drugs, having a BAC exceeding a .16%, refusing a breath test, or refusing a blood draw if requested pursuant to a warrant, court order, or other constitutional basis; or
• The offender has a prior Homicide by Vehicle While DUI conviction. 

It does not appear that SB 961 impacts the mandatory minimum jail sentences applicable to 3rd and 4th offenses, but merely modifies the grading from an M1 to an F3. 

Homicide by Vehicle while DUI and Non-DUI

Current law treats a Homicide by Vehicle While DUI offense as a 2nd Degree Felony with a mandatory minimum prison sentence of 3 years. Under SB 961, for those with one prior DUI (includes convictions, acceptance of ARD, acceptance of a consent decree, or juvenile adjudication), the grading of the offense will be enhanced to a 1st Degree Felony with a mandatory minimum prison sentence of 5 years. If the offender had two or more prior DUI offenses (includes convictions, acceptance of ARD, acceptance of a consent decree, or juvenile adjudication), the offender faces a mandatory minimum sentence of 7 years. 

For a Homicide By Vehicle offense not involving DUI, the court may, but is not required to, sentence an offender who is convicted of HBV and a Driving Without a License under Section 1501 or Driving on a Suspended License under Section 1543 to an additional 5 years of incarceration. The bill also calls for sentencing guideline enhancements when a person operated their vehicle without a license. 

Aggravated Assault by Vehicle While DUI and non-DUI

Whether it's an Aggravated Assault by Vehicle While DUI under Section 3735.1 or an Aggravated Assault by Vehicle under Section 3732.1, the court may, but is not required to, sentence an offender who is also convicted of Driving Without a License under Section 1501 or Driving on a Suspended License under Section 1543 to an additional 2 years of incarceration. The bill also calls for sentencing guideline enhancements when a person operated their vehicle without a license. 

Accident Involving Death or Injury While Not Properly Licensed

Under current law, Section 3742.1 of the Vehicle Code only punishes an individual who is not properly licensed and causes an accident resulting in injury or death to another. If the accident causes serious bodily injury or death, the offense is graded as a 3rd Degree Felony. All other injuries qualify for a 2nd Degree Misdemeanor grading. 

However, SB 961 would modify the law to punish unlicensed drivers who both cause accidents, and those who are involved in accidents through no fault of their own. If a driver who is unlicensed is involved in an accident, and the driver didn't cause the accident, the driver will now be charged with a 3rd Degree Misdemeanor if anyone else involved suffered serious bodily injury, or a 2nd Degree Misdemeanor if anyone died as a result of the accident. Put simply - an unlucky unlicensed driver who is involved in an accident through no fault of their own will now face criminal charges if someone was injured. 

Summary

The media focus on this law deals with the addition of felony DUI charges and enhanced mandatory penalties for Homicide by Vehicle offenders. However, the most significantly impacted segment of society will be those whose licenses are suspended because they cannot afford to pay DUI court costs. These individuals will continue to see their fines and penalties increase substantially if this bill is signed into law. 

Refuse a Warrantless Blood Draw? Highest Tier DUI Penalties May Not Apply

DUI Refusal penalties are some of the harshest penalties under Pennsylvania law. A DUI Refusal charge is a shorthand term for a DUI General Impairment with Refusal offense. In these cases, the Commonwealth must prove that the accused drove, operated or exercised physical control over the movement of a vehicle after imbibing a sufficient amount of alcohol to render the accused incapable of safe driving. To seek the increased DUI penalties for refusing a chemical test, the Commonwealth must also prove that the defendant refused to provide the requested blood or breath sample. 

In addition to the mandatory 12 or 18 month civil license suspensions, Sections 3803 and 3804 of the Pennsylvania Motor Vehicle Code treat DUI Refusals as Highest Tier offenses, the same as if your BAC exceeded a .16%. While a first offense DUI General Impairment offense carries no mandatory jail time, a first offense DUI Refusal carries a 72 hour mandatory minimum jail sentence. A second offense DUI General Impairment is an ungraded misdemeanor which carries a 5 day mandatory minimum and a 6 month maximum sentence. However, a 2nd DUI Refusal increases the grading of the offense from an ungraded misdemeanor to a 1st degree misdemeanor, which carries a 90 day mandatory minimum jail sentence and a maximum sentence of 5 years. 

In the 2016 Birchfield vs. North Dakota decision, the United States Supreme Court held that warrantless blood draws occurring in the absence of exigent circumstances are unconstitutional. After Birchfield, the Pennsylvania Superior Court held that the DUI Refusal penalties and enhanced gradings do not apply to offenders asked to submit to warrantless blood draws where police lack exigent circumstances to request a warrantless blood draw. 

In Commonwealth vs. Mario Giron (155 A.3d 635), police initiated a traffic stop after observing the defendant side swipe a parked vehicle. Upon approaching the vehicle, the officer noted a strong odor of alcohol coming from the vehicle, and that the defendant had red, glassy eyes and slurred speech. Upon exiting the vehicle, the defendant had unsteady footing, and was placed under arrest for DUI. He was asked to submit to a blood draw, and not a breath test, and was read a 2008 version of the DL-26 form, which provides chemical test warnings to the driver. The defendant refused to read or sign the form, and subsequently refused to perform the chemical test. The defendant was found guilty of the M1 DUI General Impairment with Refusal, and was given a 90 day to 5 year jail sentence. 

The Superior Court ultimately upheld the DUI General Impairment conviction, but overturned the DUI Refusal enhancements. Specifically, the Court held that under Birchfield, in the absence of a warrant or exigent circumstances justifying a search, a defendant who refuses to provide a blood sample when requested by police is not subject to the enhanced penalties provided in 75 Pa.C.S.A. §§ 3803-3804. The case was sent back to the trial court so that the defendant could be re-sentenced on the DUI General Impairment (5 day mandatory and 6 month maximum) and not the DUI General Impairment with Refusal (90 day mandatory and 5 year maximum). 

Please note that this ruling is limited to cases where (1) a blood draw was the only form of requested testing (2) the blood draw request was done without a warrant and (3) the blood draw request was done without there being exigent circumstances present. If you refuse a breath test, you will still be subject to the DUI Refusal penalties. This decision also has no impact on the civil license suspensions imposed as a result of refusing chemical testing. 

As always, any person facing a DUI charge should not attempt to defend themselves regardless of any legal research they've conducted over the internet. If you're charged with a DUI in Pennsylvania, contact an attorney immediately. 

Penn State University student avoids Public Drunkenness and Disorderly Conduct Convictions

Recently, the Zuckerman Law Firm represented a college student at Penn State University, who was cited with public drunkenness and disorderly conduct. The client was accused of being intoxicated at an apartment complex, leading security to contact police, who in turn issued citations. If convicted, the client faced up to $900 in fines and court costs, along with publicly searchable convictions. 

Represented by Attorney Zuckerman, the court granted counsel's request to dismiss charges when the police officer failed to appear in court as required. Based upon the favorable resolution, the client is now able to pursue a criminal record expungement, to remove the case information off of the PA Unified Judicial System Portal. 

If you are a Penn State Student cited with an offense in Western Pennsylvania, please feel free to contact the Zuckerman Law Firm at 412-447-5580 for a free case consultation. 

Construction Worker Avoids Felony Convictions for Illegal Home Entry

The Zuckerman Law Firm recently represented a construction worker accused of Criminal Trespass, a felony of the third degree punishable by up to 7 years in jail. He stood accused of entering another person's home without permission while under the influence of alcohol. As a gainfully employed construction worker with a past criminal record, a conviction for this offense could have led to his incarceration and loss of employment. 

The client was represented by Attorney Zuckerman, who referred the client for a drug and alcohol assessment. On the preliminary hearing date, a deal was worked out where the client plead to simple trespasser and public drunkenness summary offenses, receiving credit for time served. In short, the felonies were dropped to the lowest possible criminal offenses where no additional fines became due. 

This resolution was ideal under the circumstances, eliminating the need for a costly and stressful trial. 

ARD & No License Suspension Saves Job for Washington County Client

In December of 2017, Attorney Zuckerman successfully lobbied the ARD Court judge for leniency on behalf of a client facing a loss of employment with a license suspension. The client was charged with a 1st Offense, Middle Tier DUI based upon having a blood alcohol concentration between a .10% to a .16%, but closer to the higher end of this range. 

Although a negotiated agreement was reached for him to be admitted into the ARD program, he faced a 30 day license suspension upon conviction. Given his line of work, he stood a near 100% chance of losing his job, pension, and health benefits. 

Prior to the case being called, Attorney Zuckerman was able to successfully argue at sidebar for the Court to admit the client into ARD on a DUI - General Impairment charge, which carries no license suspension. This offense allowed him to continue to provide for his family while also holding him properly accountable for the decision to drink and drive. 

College Student's Felony Criminal Trespass Charges Dismissed

Our office was retained to represent a college student with no criminal history accused of breaking into a fellow student's apartment. The client was charged with Criminal Trespass, a felony of the second degree, punishable by a maximum prison sentence of up to 10 years in jail. Along with jail time, this student faced a permanent criminal record and expulsion from the university. 

This case posed significant challenges for the defense, as there was more than ample evidence to convict if the case went to trial. Our firm's representation of the client centered around damage control - showing the prosecution that this was a good person who deserved a second chance. 

At the preliminary hearing, our firm successfully advocated on our client's behalf with the arresting officer and District Attorney, who agreed that based upon the circumstances, that prosecution of the felony charge was not necessary. The felony charge was dropped in return for the client's guilty plea to a summary disorderly conduct for fines and court costs only. Based upon this successful result, the client is eligible to pursue an expungement of the dismissed criminal trespass charge. 

Attorney Dave Zuckerman Selected as 2018 PA Super Lawyers Rising Star

Pittsburgh Criminal Defense Lawyer Dave Zuckerman has been selected to the 2018 Pennsylvania Super Lawyers Rising Stars list. This professional honor is only awarded to 2.5% of eligible criminal defense and DUI defense lawyers in Pennsylvania. 

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Attorney Zuckerman's listing can be found on the Super Lawyers Website. 

Unlawful Dissemination of Intimate Image Charges Dismissed for Allegheny Co. Man

Based upon a referral from another law firm, our office was retained to represent a man accused of disseminating naked photographs of his ex-wife to mutual acquaintances. It was alleged that the client texted nude photos of his ex-wife from the neck down to a friend, as revenge for the ex-wife cheating on the client. Three months later, and without direction to do so by the client, the friend showed the photos to his co-workers, which ultimately led to the commencement of a criminal investigation and criminal charges being filed. 

After meeting with the client and preparing for the preliminary hearing, multiple evidentiary weaknesses were discovered. First, the photographs were never recovered during the course of the investigation, and none of the witnesses had personal knowledge if the body parts depicted in the photograph were actually those of the ex-wife. Second, several of the witnesses may have conspired to delete evidence. Third, there was no evidence to support that the client directed his friend to disseminate the photos to others for the purpose of harassing his ex-wife, which is an element of the offense. 

Upon discussing the case with the investigating officer and District Attorney, it was agreed that the case should not be prosecuted further at the Court of Common Pleas level. As such, the misdemeanor Unlawful Dissemination charge was dismissed in return for a guilty plea to summary offenses for fines and court costs. 

Military Veteran receives 1 year of probation for 2 DUI cases in Bedford Co.

In 2016, our office was retained to represent a military veteran who picked up two separate DUI cases in quick succession. The client was charged at the first case with a DUI for the Highest Rate of Alcohol offense and Endangering the Welfare of a Child. At the second case, the client was charged with a DUI for a High Rate of Alcohol. She faced a total mandatory minimum jail sentence of 33 days in jail at both cases, and up to 5 and 1/2 years of total confinement or probationary supervision. 

Our office was able to negotiate an agreement for the client to plead guilty to DUI General Impairment charges, both of which were treated as first offenses. For first offense DUI General Impairment charges, there is no mandatory jail sentence, but a mandatory period of probation of 6 months at each case for a total of 1 year of probation. In negotiating this agreement, our office worked with the client to chronicle her military history, compile character reference letters, and provide documentation of treatment. Providing a vast array of mitigating documentation helped persuade the District Attorney's office to offer a favorable resolution of these cases.

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.