This past week my client faced three days in jail and one year license suspension for a first offense DUI charge that occurred on Route 1 in Chester County, PA. My client was traveling on Route 1, observing the speed limit when two Pennsylvania State Troopers pulled him over. The two officers were traveling in the same cruiser. When they followed my client, they claimed that my his license plate lights were out and that gave them probable cause to stop his vehicle. In Pennsylvania, a police officer must have reasonable suspicion that a violation of the motor vehicle code is occurring to stop a vehicle. This is commonly referred to as probable cause. If a police officer pulls over a vehicle and does NOT have probable cause to stop that vehicle, all the evidence that follows the illegal stop must be suppressed. Suppressed means the evidence gets thrown out. Attorneys will typically challenge probable cause for the stop in what is known as a pre-trial suppression hearing. In order to have a suppression hearing the attorney must file a pre-trial motion to suppress the evidence within 30 days of arraignment.
This case was a huge victory for the Antoine law firm. On Thursday night, November 13th after deliberating several hours, the jury returned a not guilty verdict to the charge of Driving Under the Influence. A conviction would have been a 5th offense for the Defendant and carried mandatory jail time and additional time for probation violations. The Defendant was on probation for multiple DUI offenses in other counties.
The Aston Police alleged that the Defendant was too drunk to drive his vehicle safely. They said he was so intoxicated that he blew through a stop sign, had strong odor of alcohol, could not stand on one leg, could not count backwards properly, and had a “half empty” bottle of Red Stag Bourbon in the rear of the vehicle. The Defendant blew a .17% on a portable breath test (PBT).
In Pennsylvania there are currently mandatory minimum sentence laws that apply to drug dealing cases. Basically, when a defendant is convicted of selling or dealing drugs certain enhancements can give a defendant mandatory time in jail. For example, if a defendant is in control of a firearm at the time that he was dealing drugs a five year mandatory sentence would apply. The problem with the Pennsylvania law as it is written currently is that the trial judge and NOT the jury decides whether or not the defendant is in control of the firearm which would trigger the mandatory sentence. Another example of this in Pennsylvania would be the school zone mandatory. Under the law the way it is currently written, if a defendant is convicted of selling drugs by a jury and a judge finds that it occurredwithin 1000 feet of a school a two year mandatory minimum jail sentence would apply. Again, the law mandated that the sentencing judge would decide whether the drug transaction occurred within 1000 feet of a school by a preponderance of the evidence. In June 2013 the United States Supreme Court turned things upside down for Pennsylvania mandatory minimum laws when it decided the case of Alleyne v. United States. The United States Supreme Court said in Alleyne that everyone has a right to jury trial under the sixth amendment of the United States Constitution. Therefore juries NOT judges should be deciding any facts that enhance the penalty. In other words, Alleyne mandates that a jury should be deciding beyond a reasonable doubt whether the defendant had a firearm or was in a school zone during the drug transaction, NOT the judge.
Pennsylvania mandatory sentencing schemes specifically state the judge will decide these issues. Basically, Alleyne made the Pennsylvania mandatory drug laws unconstitutional.
For the past year or so, Pennsylvania trial court judges were adjusting to Alleyne and submitting these mandatory questions to the jury to decide beyond a reasonable doubt, these sentencing enhancement questions such as “was the defendant in a school zone,” or “did the defendant possess a firearm?” Essentially, many Pennsylvania judges were severing the unconstitutional parts of the Pennsylvania mandatory sentence laws but still applying this unconstitutional law versus declaring the law unconstitutional and not applying the mandatory sentences at all. This practice was commonplace until recently when the Pennsylvania Superior Court decided Commonwealth v. Newman, 2014 Pa.Super 178 (Pa.Super.Ct. 2014). Newman states that Pennsylvania judges cannot sever unconstitutional portions of the mandatory minimum sentence drug law and rehabilitate the unconstitutional law. The Court states that this would be akin to rewriting the law and legislating from the bench. Newman essentially says that Alleyne has struck down the mandatory minimum provisions in Pennsylvania drug laws and mandatory minimum sentences should no longer apply. If the Pennsylvania General Assembly wants the mandatory minimum sentences to come back, they will have to rewrite the law with the provision that juries decide the enhancements.
Please note that the information contained in the following article is taken from public sources such as court documents and newspapers in order to protect client confidentiality. No confidential information was used in writing this article.
You may recall in the news last November when an elderly man from Miami, Florida named John Felder attempted to kidnap and hold for ransom a wealthy resident of Villanova at the Montgomery Scott Mansion. My office represented Mr. Felder at his preliminary hearing last year and secured his pre-trial release. He was represented by his third attorney on the case at his most recent sentencing hearing. Although I represented Mr. Felder at the start of his case, I did want to highlight how my office had Mr. Felder released on bail.
This case was covered in all the major news networks and newspapers. The case was covered in media outlets as far as Miami and San Francisco. The headlines read that Mr. Felder went to the Montgomery Scott Mansion in Villanova posing as a flower delivery man. A member of the McNeil family of McNeil Pharmaceuticals (the inventors of Tylenol) lived in this mansion. When Mr. McNeil answered the door, Mr. Felder tased him in the chest where McNeil fell on his doorstep. The plot was unsuccessful and Mr. McNeil escaped the incident and Mr. Felder left the scene. A parking ticket in front of the flower shop led police to Mr. Felder up in the Poconos where he was attending a gun show. Mr. Felder was caught by Radnor Police with a ransom note, a list of other wealthy executives, 2 stun guns, a taser, a mask, .38 caliber revolver, night vision security equipment and the list goes on. The Radnor police cited financial difficulties as the motive for the kidnapping. Continue reading
In the last year I have noticed an influx of cases involving prescription medications. I have also noticed that more and more of my clients are being charged with DUI for taking prescription medication under the direction of a doctor. My cases have involved clients taking many types of legally prescribed prescription drugs such as Oxycodone, Fentanyl, Suboxone, Dilaudid, Nuerontin and various antidepressants. Most of my say emphatically “how can I get a DUI if I have a prescription?” The short answer to that question is that it does not matter if you have a prescription. You can still be charged with a DUI in PA if you are taking a legally prescribed drug. Pennsylvania law states that you cannot drive or operate a vehicle if you are under the influence of a drug or combination of drugs which impairs your ability to drive a vehicle. This statute can be found in the Pennsylvania Motor vehicle Code at 75 Pa.C.S. Â§3802(d)(2). The definition of a drug is expansive in Pennsylvania. Under PA law “a drug” is defined as any substance that affects the function of the human body.” Therefore, you could be charged with DUI for driving and taking any medication that impairs your faculties. Theoretically, you could be charged for taking over-the-counter medications that cause drowsiness.
In order for prosecution to convict you of a DUI for taking legally prescribed drugs, it must show that the drug(s) you were taking impaired your ability to drive. The prosecution will try to prove to the judge or jury that you were impaired in a number of ways. The following are examples of the types of evidence the Commonwealth may produce at trial or a preliminary hearing to show your driving was impaired because of the drugs: a lab report showing the drug in your blood; expert testimony that the drug or combination of drugs impairs your ability to drive, your pill bottle indicating the medication causes drowsiness or instructing you not to drive or to use caution while operating machinery; field observations of the police officer such as slurred speech, dilated pupils; fumbling for license or registration, unsteady balance; evidence of erratic driving or an accident. Continue reading
This case was a major victory for the Antoine firm in 2011. Donna Crowe’s case was a TV movie in the making, full of drama, anger, and heartache, local news coverage on 6abc.com and even the arrest and removal of the Assistant District Attorney on this case, Mike Donahue, on unrelated charges, see my blog dated November 16, 2011.
When this firm began its representation of Ms. Crowe in early February 2010, she was incarcerated at George W. Hill Correctional Facility and held on $25,000.00 cash bail. Ms. Crowe was arrested on charges of Identity Theft, Theft by Unlawful Taking, Receiving Stolen Property by Upper Providence Police Department. She was released from prison on 10% of the $25,000 cash bail. I then started the process of filing various motions on her behalf to which the Commonwealth kept requesting continuances and delaying the case. After almost a year of continuances and motions, I was able to plead Ms. Crowe out to a Disorderly Conduct citation with a $100.00 fine.
According to the police criminal complaint filed by Upper Providence Police Department, Donna Crowe was hired as a nanny by the Aitken family to care for their younger daughter, in October of 2009. Ms. Crowe had answered an ad posted on the website, Sittercity.com by Michelle Aitken. The two met for an interview where a background check was performed and subsequently Ms. Crowe was hired. By mid-November, Ms. Aitken noticed the memory card was missed from the family camera that was kept in her daughter’s stroller. Ms. Aitken questioned Ms. Crowe about the missing camera card, to which Ms. Crowe told her she “had no idea.” In the next couple weeks, Ms. Aitken noticed a change in Ms. Crowe’s mood. When Ms. Crowe did not show for work one day, Ms. Aitken called to ask why and received different answers to the question. It was then the Aitken’s family decided to end their working relationship with Ms. Crowe. Continue reading
Morgan Marie Mengel of West Goshen Township in West Chester, Pennsylvania was not happy in her marriage. Instead of filing for divorce, she is on trial for his murder. According to public sources Ms. Mengel is accused of conspiring with her young lover, Stephen M. Shappel, to poisoning and fatally bludgeoning her husband, Kevin Mengel, Jr. on June 17, 2010.
On June 20, 2010, Kathleen Barton, Kevin Mengel’s mother, reported her son missing after she received suspicious texts supposedly from her son stating he was “leaving the area and did not want to be bothered by anyone” stated West Goshen Police Chief Michael J. Carroll. On June 25, 2010, police investigators went to Mr. Mengel’s landscaping business, MKB Property Maintenance to interview employees. While police were still on the premises, Ms. Mengel and Mr. Shappell, who was an employee at the landscaping business, arrived together and upon seeing the police, Mr. Shappell fled the scene in Ms. Mengel’s truck. Police questioned Ms. Mengel. She first told police her husband left the area. Later she finally admitted that Stephen Shappell murdered her husband and she was aware of the murder.
Ms. Mengel was arraigned on June 25, 2010. The next day Kevin Mengel, Jr.’s body was found by cadaver dogs behind Marple Newtown High School. According to Chester County Deputy District Attorney Patrick Carmody and Assistant District Attorney Deborah Ryan, Ms. Mengel had been having an affair with Mr. Shappell since May 2010 and “had convinced 22-year-old Stephen Shappell to bludgeon Kevin Mengel with a shovel after she had poisoned him with a bottle of iced tea.” On the morning of June 17, 2010, Stephen Shappell did just that, breaking two shovels in the process, but not without text messages from Ms. Mengel urging him to “not chicken out.” After the murder, Mr. Shappell texted Ms. Mengel to come to the landscaping business where the prosecution alleges they tied up the body in a tarp, cleaned the area and Mr. Shappell took the body and buried it behind Marple Newtown High School. Stephen Shappell has already pled guilty to murder charges and is expected to testify for the prosecution.
In Media, Delaware County, Pennsylvania the ARD program is offered to certain first time DUI offenders that opt to be accepted into the program. The major benefit of ARD is that you or your attorney will be entitled to file an expungement petition once you complete all of the requirements of the program. This will result in your criminal record being expunged and destroyed if the court so orders. Click on the following link Delaware County ARD program to read my prior blog for more information on the benefits of the ARD program.
Moving forward, this blog will take you through the ARD process in Delaware County, PA from start to finish.
1. Post-Arrest: Preliminary Hearing Paperwork will be Mailed to you by the District Court – after you are arrested and charged with a first offense DUI in Delaware County, Pennsylvania, paperwork will be sent to your house from the District Court that retains jurisdiction over you. After you are arrested, the Magisterial District Court will send you two letters: one certified and one by regular first class mail. Both of the letters are duplicates and contain the same information. Enclosed in your letters will be three items. The first is called a “Police Criminal Complaint.” This document contains the caption of the case, identifies you as the defendant and designates which crimes you are being charged with along with other information. The second item is called the “Affidavit of Probable Cause.” The Affidavit of Probable Cause is a brief recitation of the facts which occurred in your case as written by the police officer. The third item in your letters will be a scheduling notice. The scheduling notice will let you know the time and place of your preliminary hearing. The preliminary hearing will be heard before a Magisterial District Judge. The court may also mail you a fingerprint order, ordering you to report to the police department where you were arrested to be fingerprinted, if you were not fingerprinted on the night of the offense.
Please be patient. If you have been arrested for a DUI, these items may take a few weeks to get out to you. I have even seen it take months for clients to get their paperwork. However, if you have been arrested for a DUI in Delaware County, Pennsylvania, rest assured, you will receive these items in the mail. After you have been arrested I recommend that you hire an attorney at your earliest convenience to avoid any complications with the case. Jason R. Antoine, Esquire, Pennsylvania ARD DUI lawyer can be reached for free DUI advice at (610) 299-0295. Continue reading
Michael Donahue, a former Delaware County Assistant District Attorney was arrested Monday, November 14 and charged with aggravated assault, accident involving death or personal injury, recklessly endangering another person and other crimes. Mr. Donahue was charged as being the driver of the car who struck a 14 year old boy who was walking with three of his friend across Township Line Road in Upper Darby on November 4, 2011. The boy was struck violently, the skateboard he was carrying was split in two. According to witnesses, Mr. Donahue left the scene. The victim was taken to Children’s Hospital of Philadelphia where he suffered a brain bleed, two hip fractures and several lacerations. Since the date of the accident the victim was released and has been given a good prognosis.
On the night of November 4th, he decided to end his week with friends at a local bar/restaurant in Media. According to court documents, Mr. Donahue left the bar/restaurant around 9:00 p.m. alone and drove to meet a friend to pick up food. He then met friends at a local firehouse in Haverford to eat with them and then left with a friend and drove to another firehouse in Upper Darby. Mr. Donahue then returned to the Haverford firehouse to drop off his friend. Around 10:15 p.m., Mr. Donahue left the firehouse alone and called his friend to let him know he was driving back to Upper Darby. Unfortunately, while Mr. Donahue was talking to his friend on his cell phone, the friend heard him say a curse word then seconds after that a beeping sound, like a car door was opened while still running. Then the phone went dead. Continue reading