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.
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
Last week, I had a Disorderly conduct citation dismissed by Judge Farmer in Oxford District Court in Chester County. I wanted to write about the strategy used to get this citation thrown out. This same strategy can be applied to Pennsylvania Simple Assault cases at preliminary hearings. The facts are as follows*: my client, a prevalent executive at a marketing firm, was cited for Disorderly conduct stemming from an incident that occurred while he was picking up his daughter from her boyfriend’s house. The short version of the story is that the boyfriend’s father was drunk and shouting obscenities at my client’s wife who was sitting in the car. My client approached the boyfriend’s father, pushed the father, the two shouted obscenities back-and-forth and eventually got the boyfriend’s father in a choke hold before being jumped by other members of the family. The boyfriend’s father and my client were cited for disorderly conduct. I was prepared to take this case to trial based on the premise that my client was defending his wife. Just as you are allowed to defend yourself in a self-defense case, you are allowed to use the same force to defend 3rd parties from harm. My client stated that the boyfriend’s father was pointing at his wife and “going after her.” His daughter and her boyfriend told police that this was not true. The attorney representing the boyfriend’s father approached me in the hallway and we decided to request a cooling off period to have the charges dismissed. I spoke to the Pennsylvania State Police Trooper and he was alright with this disposition to the case. My client was obviously happy that the charge would be dismissed. Rather than going through a trial, my client agreed to this disposition. Continue reading
Section 1543(a) of the Pennsylvania Motor Vehicle Code penalizes driving on a suspended driver’s license. Section 1543(b) penalizes driving on a suspended license because of a DUI conviction or ARD admission. Driving on a DUI suspended license carries a mandatory jail sentence of 60 to 90 days. If you get caught driving on a DUI suspended license and you are lucky, the police will cut you a break and write you a citation for a Â§1543(a) which carries no mandatory jail time, but an additional license suspension of one year. Many people are ecstatic about this because they avoid the jail time. However, when the novelty wears off and they begin serving their one year license suspension, they are not as ecstatic. My advice is to always plead not guilty to these citations. The goal of a criminal lawyer in these type of cases is to have the case plead to 75 Pa.C.S. Â§1501 Driver’s required to be licensed. My firm has had a lot of success having Â§1543(a) cases plead down to Â§1501. Â§1501 carries no license suspension and no points. If convicted of Â§1501, you will merely be required to pay a fine. Some of my clients get nervous when I tell them it is possible for the officer to amend his citation to a Â§1543(b) from a Â§1543(a) if they plead NOT guilty and request a hearing. Some clients do not want to go forward because of the risk involved. My advice is still the same: plead NOT guilty and do not worry about it. In my experience as a prosecutor and defense attorney, the police have never amended to a Â§1543(b) and even if they did, at that point you could probably back down and plead guilty to a Â§1543(a). Earlier this year I had a Â§1543(b) case plead down to Â§1501 and my client was driving on a DUI suspended license for a third offense DUI. If you use finesse with police officers, they can be very accommodating. It is important to have an attorney that is good with people and has experience dealing with police officers. I worked with police officers on both sides of the aisle: as a defense attorney and as an Assistant District Attorney. I know it pays to be polite and appreciative. Continue reading
I wanted to write about a preliminary hearing in Linwood, Pennsylvania that was held last week that is worth noting.
A lady from Camden, New Jersey dropped her 1999 Kia Sephia off at a Leonard’s Body Shop in Marcus Hook, Pennsylvania in March of 2010. She paid $1500 to have her car repaired. My client who was the shop owner’s girlfriend, worked the front end of the business. She took the customer’s cash and wrote out a receipt for the$1500. Her boyfriend owned the shop and performed all body work. After she dropped the car off months went by and no work was ever performed on the car. Subsequently, the owner was forced out of the shop and was forced to put the building up for sale. The customer could not locate her car. The police found out that the owner/boyfriend moved the car to his residential garage, never gave the car back and never contacted the customer. The shop owner basically kept the woman’s car and never told her where it was. The Marcus Hook Police charged the boyfriend/owner and my client with Theft by Unlawful Taking, Theft by Deception, Unauthorized Use of a Motor Vehicle and Disorderly Conduct. Continue reading
This was our second court appearance. At the first listing of this case back in June, I noticed the Commonwealth did not subpeona the victim or the 3rd party witness to the alleged assault. I found this out by going to the front desk at the Radnor courthouse and speaking to court staff. Though no subpeonas were sent out, the Delaware County District Attorney’s Office requested a continuance on the basis that the witness didn’t show. I strongly objected to this continuance request. I argued to the Radnor judge that the Pennsylvania Rules of Criminal Procedure state that continuances should only be granted for “good cause.” I didn’t feel that the Radnor Police forgetting to subpeona its witnesses constituted “good cause.” I explained my position ot the judge. Nonetheless, the District Judge granted the Commonwealth’s continuance request. I expected this. It is normal for judges to grant a continuance at the first listing of the case, especially in domestic cases. Typically, the judge’s will play it safe in these situations and give the victim an opportunity to appear at court. Judges take domestic violence seriously and want to protect victims and give them the opportunity to testify against defendants.