Driver's License Suspensions Lead to Unemployment and Debt

Many states have laws suspending a person's driving privileges for failing to pay court costs, fines, fees and child support. These laws apply even when the particular debtor did not commit a Motor Vehicle Code violation. PA Senate Bill 918 will authorize the suspension of a person's driver's license for failing to pay court-ordered fines or penalties, even if the penalties are unrelated to a Motor Vehicle Code violation.

The New York Times published an article focusing on how driver's license suspensions create a cycle of debt that can be nearly impossible to escape. Without a license, those individuals who are able and willing to work and pay down their "criminal" debts are unable to obtain and maintain gainful employment. To make matters worse, arrest warrants can be issued for failing to pay fines and costs as required. Many criminal cases disposed of at the Court of Common Pleas carry total fines and costs exceeding $2,000, not including restitution and mandatory fines.

If passed, Senate Bill 918 would create the same problems experienced by debtors in Tennessee - Can't make court ordered payments, can't get a license; can't get a license, can't get or maintain work; can't get work, can't make court ordered payments.

If you're facing a license suspension, or owe a large, outstanding balance on a criminal case - call us today at 412-447-5580. There may be a way to help.

How Police Catch You Speeding in Pennsylvania

HOW THE POLICE CATCH YOU SPEEDING

NOTE: This blog article is for advertising and general informational purposes only, and should not be relied upon by any individual seeking to represent himself or herself in any legal proceeding in any jurisdiction. Neither Attorney Zuckerman nor the Zuckerman Law Firm, LLC make any promises or representations regarding the accuracy of the information contained within this article. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. It is recommended that you obtain a qualified attorney to represent you on any pending legal matter

Police can clock your speed using either a speedometer, a radio-microwave device (radar) or by an electronic device (VASCAR). Title 75 Section 3368 of the PA Motor Vehicle Code lists basic information about speed timing devices, including approved devices, restrictions on who can use these devices, distance restrictions on the use of timed speed devices, and calibration requirements.

The Pennsylvania Department of Transportation has adopted a list of approved speed timing devices as well as approved maintenance and calibration stations. 

Speedometer

Speeding tickets can be issued as a result of "pacing," which occurs when an officer follows a suspect, using his/her own speedometer to clock the suspect's speed. Under Section 3368 of the Motor Vehicle Code, an officer or trooper must pace your vehicle for a minimum distance of 3/10ths of a mile.

Speedometers must be tested for accuracy at least one year prior to the alleged violation date, and immediately upon a change of tire size.

Roadway configurations (i.e. hills vs. straight roadways), roadway conditions (day vs. night, clear vs. rainy, etc), and distances between your vehicle and the officer's vehicle can impact the accuracy of an officer's pacing. For example, if an officer is speeding up to catch your vehicle, a speedometer reading will be artificially high.

Radar Devices (referred to as radio-microwave devices or electronic speed meters)

Pennsylvania State Troopers are the only members of law enforcement who are permitted to clock your speed using a radar device. PA is the only state in the nation that prohibits local police officers from using radar devices.

Radar devices function by sending a radio signal in a narrow beam towards your vehicle and recapturing the signal after it bounces off the exterior of your vehicle. The device uses the "Doppler Effect," calculating your speed based upon changes in the frequency of the original signal after it makes contact with your vehicle.

If your speeding ticket is the result of a radar reading, it is important to have the trooper establish whether or not there was traffic in your lane or in any surrounding lanes. If you are traveling near other vehicles - particularly large vehicles - it is possible that the signal used to clock your speed was from another vehicle.

Radar devices must be tested for accuracy within a period of one-year prior to the citation date. These devices are usually calibrated using a tuning fork, which creates a known speed measurement using a specific radio signal. When using the tuning fork, the device should be pointed towards the sky to eliminate interference from passing vehicles. While not required, the National Highway Traffic Safety Administration (NHTSA) and US Department of Transportation recommend that calibration should occur at the beginning and end of shifts.

To establish proper calibration, the Commonwealth must offer the following into evidence: (1) Certificate showing that agency who tested the device was certified by Secretary of Transportation and (2) a Certification of Electronic Device (radar) Accuracy, signed by the person who tested the accuracy of the device, as well as the engineer in charge of the testing station.

If a trooper fails to use a tuning fork to calibrate the radar device, fails to calibrate the device as often as required, fails to present proper calibration documentation, or claims that calibration is unnecessary, these may be grounds to dismiss your citation.

Electronic Speed Timing Devices (Non-Radar)

Electronic speed-timing devices like VASCAR and VSPEC are non-radar devices which calculate speeds between two points. With VASCAR, a police officer measures the distance between two points by using measuring tape, or by connecting the device to the vehicle's odometer and driving the distance between the points. The officer then manually hits a trigger switch when you cross the first point and hits the switch a second time when you cross the second point. The device then calculates your speed by dividing the distance your vehicle traveled by the time it took to travel between the two points.

The VASCAR unit can be used when a police car is stationary, when following your vehicle, when driving ahead of your vehicle, or while driving in the opposite direction.

There are multiple ways to challenge a speeding ticket based upon a VASCAR reading:

First, with the exception of school zones and active work zones, under Section 3368(c) of the PA Motor Vehicle Code, electronic speed timing device readings cannot be used to convict you if:

• The speed recorded is less than 6 miles per hour over the speed limit;

• The legal speed limit is less than 55 miles per hour and the speed recorded is less than 10 miles per hour over the speed limit.

Second, if the two trigger points are located at a distance from the officer's vehicle, the officer may not be able to accurately observe when your vehicle passed the two points.

Third, since the officer is required to manually hit trigger switches as your vehicle crosses two points, errors in reaction time can create an incorrect result. If an officer is late to hit the trigger at the first point, and accurate as you cross the second point, you will be clocked at a faster speed than what you were traveling. An officer can be questioned about whether or not his or her reaction time had ever been tested for accuracy.

Fourth, if the officer connected the VASCAR device to the vehicle's odometer, and the odometer reading is off, then the VASCAR result will be off as well. The officer must be able to establish that both the VASCAR device and the odometer were calibrated.

Finally, PA Bulletin Doc. No. 11-2256 indicates that if a citation is contested, it is necessary for the police department to show the certificate of stopwatch accuracy, which was issued within 60 days of the citation, and an approved speed-timing device certificate issued by the Bureau of Motor Vehicles.

WHAT TO DO IF YOU ARE CITED FOR SPEEDING

"Any person choosing to represent himself in a legal proceeding must, to a reasonable extent, assume that his lack of expertise and legal training will be his undoing."

If you are cited for speeding and attempt to contest the ticket yourself, you may be fighting an uphill battle. The officer who cited you may not appear in court, and if he/she does appear, may attempt to establish that the devices were properly functioning through inadmissible evidence. You may also find that the Court restricts your ability to cross-examine witnesses as a self-represented Defendant.

Don't fight your speeding ticket alone. Call the Zuckerman Law Firm today at 412-447-5580 for a free consultation.

Why Police Can't Search Your Phone Without a Warrant

If you are arrested, the police may not search your cell phone unless (1) you give them permission to do so or (2) they obtain a search warrant. In Riley v. California,  the United States Supreme Court held that absent exigent circumstances (i.e. a public safety emergency or something similar), the police may not search the data on your cell phone without a warrant. In it's ruling, SCOTUS noted how most Americans who own cell phones keep on their record a digital record of nearly every aspect of their lives. With modern technology, we carry our photo albums, medical information, an address book, trade secrets and other sensitive information in our pockets and purses. As such, our substantial expectation of privacy with regards to phone data outweighs law enforcement's desire for investigative convenience.

PA Superior Court Declares Firearm/Drug Mandatory Unconstitutional

Under 18 Pa.C.S. 9712.1, a 5-year mandatory minimum sentence applies if a person is convicted of "drug dealing" (i.e. Possession with Intent to Deliver) and a judge determines at sentencing that a firearm was in close proximity to the narcotics. In the Alleyne case, the US Supreme Court held that any element which increases a mandatory minimum sentence must be submitted to the jury and proven beyond a reasonable doubt. The vast majority of PA mandatory sentences are written to only require that those facts be submitted to the judge and proven by a preponderance of the evidence (i.e. greater than 50%).

Today, in Commonwealth vs. Newman, the PA Superior Court declared the drug/gun mandatory sentence at 9712.1 to be unconstitutional. The reasoning applied by the Superior Court should apply to nearly every other drug related mandatory sentence.

PA Mandatory Minimum Sentences Under Attack

In 1982, PA's General Assembly passed the first mandatory minimum sentencing statutes for certain violent offenders. Since then, Pennsylvania has adopted mandatory minimum sentences for DUI offenses (1983), narcotics offenses (1988), a "Three Strikes" law for repeat violent felony offenders (1995), and sexual offenses. Most mandatory sentencing provisions require the prosecutor to only give notice of its intent to seek a mandatory sentence before the sentencing date. These "notice mandatory provisions" were written to only require proof of the elements that trigger a mandatory sentence by a preponderance of the evidence to the judge. For example, if a person is convicted by a jury of possession with intent to deliver (i.e. drug dealing), the prosecutor would only have to establish to a judge at the sentencing hearing that it's more likely than (i.e. 50.1%) not that the transaction occurred within 1,000 feet of a school zone for a two-year mandatory minimum sentence to apply.

However, in the landmark case of Alleyne vs. United States, the US Supreme Court held that facts increasing the mandatory minimum sentence are elements of a crime, and must be submitted to the jury and proven beyond a reasonable doubt. Using that previous example, a jury would now have to determine that the prosecution has proven, beyond a reasonable doubt, that the drug transaction occurred within 1,000 feet of a school zone for the mandatory sentence to apply.

The problem in Pennsylvania lies in the fact that the "burden of proof" provisions of the mandatory sentencing statutes are unconstitutional as written. Prosecutors throughout the state have essentially asked the courts to disregard the burden of proof language and let them present the mandatory sentencing elements to juries.

However, courts in Allegheny, Blair, Bucks, Chester, Montgomery and Philadelphia counties have declared that Pennsylvania's notice mandatory provisions are unconstitutional and cannot be enforced as written. Specifically, in the Blair County opinion of Commonwealth v. Weyant/Morgan, the court held that it's the legislature's role to re-write the statutes, and that adopting an alternative scheme for enforcing mandatory sentences would, “offend the separation of powers that exist between the branches of government.”

Furthermore, in the Derr/Williams opinion, the Lycoming County Court of Common Pleas has held that, "where a legislative scheme is determined to have run afoul of constitutional mandate, it is not the role of the Court to design an alternative scheme which will pass constitutional muster.” citing Heller v. Frankston, 475 A.2d 1291, 1296 (Pa. 1984).

The "notice mandatory minimum" sentences are enforced at the discretion of prosecutors, and are routinely used to force the criminally accused into unfavorable plea agreements. Mandatory sentences are not applied uniformly, do not deter crime, lead to overcrowding of our jails and prisons with non-violent offenders (at an approximate cost of $35,000/yr), and infringe upon the role of our judiciary to adequately punish offenders.

If you or a loved one are charged with a drug crime and are facing a mandatory sentence as a result, call the Zuckerman Law Firm today at 412-447-5580.

PA Adopts Federal Automobile Exception to Warrant Requirement

The general rule in Pennsylvania is that in order to search your vehicle, police must obtain a search warrant. There are various exceptions to the "warrant requirement" which permit the police to conduct a search of a vehicle without a warrant. Unlike a home, citizens have a decreased expectation of privacy in their vehicles for two main reasons. First, members of law enforcement have extensive contact with motor vehicles, frequently observing evidence of criminality in "plain view" through the vehicle's windows. Second, vehicles are subject to stringent state regulations.

Under the Federal Automobile Exception, members of law enforcement are permitted to search a motor vehicle when there is probable cause to search the vehicle, and the only exigent circumstance is the inherent mobility of the vehicle. Under federal law, the police only needed sufficient facts to believe the car contains evidence of a crime or contraband before conducting a search. There is no requirement under the federal automobile exception for the police to demonstrate any reason why they couldn't obtain a warrant before searching. 

Article I, Section 8 of Pennsylvania's Constitution used to be interpreted to afford citizens greater protection against unlawful searches of motor vehicles than the US Constitution. Previously, in order for law enforcement to conduct a warrantless search of a motor vehicle, there must have been (1) probable cause to search the vehicle and (2) exigent circumstances beyond the mobility of the vehicle which prevent the police from obtaining a warrant before searching the car. Put simply, the police needed to establish that sufficient facts exist to believe the car contains evidence of a crime or contraband and some urgent reason, other than the ability to drive the car from the scene, that prevents the police from applying for a warrant before searching the vehicle. 

On April 29, 2014, the Pennsylvania Supreme Court rendered a decision in the case of Commonwealth vs. Gary, formally adopting the federal automobile exception to the warrant requirement. While police still need probable cause to search your vehicle (i.e. sufficient facts to believe car contains evidence of crime or contraband), they no longer need to establish that it is impossible to get a warrant under the circumstances. The holding in this case is listed below:

"In sum, our review reveals no compelling reason to interpret Article I, Section 8 of the Pennsylvania Constitution as providing greater protection with regard to warrantless searches of motor vehicles than does the Fourth Amendment. Therefore, we hold that, in this Commonwealth, the law governing warrantless searches of motor vehicles is coextensive with federal law under the Fourth Amendment. The prerequisite for a warrantless search of a motor vehicle is probable cause to search; no exigency beyond the inherent mobility of a motor vehicle is required. The consistent and firm requirement for probable cause is a strong and sufficient safeguard against illegal searches of motor vehicles, whose inherent mobility and the endless factual circumstances that such mobility engenders constitute a per se exigency allowing police officers to make the determination of probable cause in the first instance in the field."

What does this mean for you? For starters, we will see a greater number of searches conducted by police on the basis that they observed "furtive movements."  All it will likely take is a police officer saying "I saw the driver reaching for the floor, the glove box, etc" at a court hearing to justify a warrantless vehicle search. Previously, the officer would have to document the exact nature of these movements to a detached and neutral magisterial district justice who would have to find that probable cause existed.

If your vehicle has been searched by police and you do not have an attorney to represent you in an upcoming case - call the Zuckerman Law Firm today for a free consultation - 412-447-5580.