Recently in DUI Elements Category

July 15, 2011

Case Result: Driving While DUI Suspended License Charge Reduced in the City of Chester While Client had 3 Prior DUI Convictions

Today I was in Chester District Court before Judge Robert J. Blythe. My client was charged with driving on a DUI suspended license. In attorney talk, we call these 1543B's in Pennsylvania. That refers to the Pennsylvania Motor Vehicle Code 75 Pa. C.S.A. Sec. 1543B. The conviction of Section 1543B carries with it a mandatory jail sentence between 60 and 90 days. My goal in this case going into Court was to have it dropped down to Section 1543A. Section 1543A refers to Pennsylvania Motor Vehicle Code 75 Pa. C.S.A. Sec. 1543A. A guilty plea or conviction of 1543A is better because there is no mandatory jail time. The consequences is a $200.00 fine and an additional suspension.

My mindset going into Court was to have this case plead down to a 1543A. However, I knew this was going to be an uphill battle since my client had 3 prior DUI convictions. In addition, my client had already caught a break because he admitted to the Officer that he had been drinking that night. The Officer could have brought my client up on DUI charges however he chose to cut him a break. With all this going against us, I knew I was going to try for a 1543A but thought it was unlikely. My second strategy was going to be for my client to go into the intermediate punishment and serve his jail time on several weekends. I went into Court, shook the Officer's hand and tried to be as respectful as I could and negotiate with him. I explained my client is an upstanding citizen, has his own business, goes to work regularly and that the blood alcohol content in all his DUI's were low. The Officer laughed at me and said "have you seen how many DUI's your client has had", I answered "yes, but he is cooperative and we'd appreciate anything you can do for us." To my surprise, the Officer dropped us down to a 1543A. I told my client this was the "deal of the Century" because of all the factors going against him in this case.

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June 26, 2011

Middle Pennsylvania DUI Case Dismissed at Preliminary Hearing

I recently took a second offense DUI case out of Mifflinburg, Pennsylvania, Union County. I was reluctant at first, because I couldn't point to Mifflinburg on the map or Union County. I knew it must be somewhere in the middle of the state. However, I wanted to help this guy out and get his charges dismissed. As the saying goes, "if you buy, I'll fly."

The case all hinged on the officers observations of my client and the field sobriety tests (link to field sobriety test page) since my client refused any chemical testing of his blood. When I arrived at the prelim., I didn't think I had a chance of getting the charges dismissed at the prelim. level. I thought "big city attorney in a small town, not a chance with the local politics." However, I was pleasantly surprised. I cross-examined the police officer and used a few helpful techniques I picked up along the way that helped me get the case dismissed.

When I read the police report (at the prelim. Known as the affidavit of probable cause) I noticed my client was charged with speeding but no other traffic offenses. I cross-examined the officer and established that my client traveled 3-4 miles without crossing the double yellow or fog line. This is significant. Most drivers cross these lines inadvertently on a day to day basis without being drunk. Heck, I cross the lines everyday when I go to work. It's pretty hard for a guy to be too intoxicated behind the wheel and drive the car as straight as an arrow.

Next, police officers usually put standard boilerplate language in every affidavit of probable cause. I've done hundreds of DUI cases in Pennsylvania and they all say just about the same thing: "I noticed an odor of alcohol emanating from the vehicle, and the suspect exhibited bloodshot glass eyes and slurred speech which are consistent with intoxication. The suspect then fumbled for his license and registration." Like clockwork the police will put these items in their report. In this particular case, the officer left a few of these things out.

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June 21, 2011

Do You Fear Immigration Consequences for a DUI Offense?

Whenever you have concern for Immigration consequences of criminal conduct, first your status or lack of status is considered (how you came to be present in the United States), as such all your immigration-related documents that explain your presence are helpful.

The classification of the crime for the purposes of Immigration law must then be determined. For example, "crimes involving moral turpitude" may serve as a basis for removal proceedings (deportation or exclusion). Such crimes also implicate "good moral character" when considering forms of relief from removal and naturalization. "Moral turpitude" in general refers to acts that are evil or wrong by society's standards. To be considered a crime involving moral turpitude the act must involve both reprehensible conduct and some degree of scienter, which may be specific intent, deliberateness, willfulness, or recklessness.

The Board of Immigration Appeals (BIA) is the administrative appellate body which reviews appealed Immigration Judge decisions. Immigration Judges fall under the jurisdiction of the attorney general and within the Department of Justice The Executive Office for Immigration Review. The BIA has struggled with charges of Driving while under the influence. Because precedent has been inconsistent, it is important to look to Pennsylvania's current case law, as well as to the specific elements of the Pennsylvania statute to determining whether a DUI would be considered a crime involving moral turpitude.

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May 16, 2011

What a Nice Day the Delco Way

Mondays are always busy at my office. Not only do we get a lot of new clients calling that
got in trouble over the weekend, Mondays are the day for pre-trial conferences in Delaware County. We are usually double and triple booked for Mondays in Delco. In addition, my secretary is usually texting me all the new clients that called over the weekend. I try to get back to everyone on my cell phone in the courtroom hallway in between cases. I have to hustle between courtrooms to get to everyone. It can be stressful at times, but it is well worth it at the end of the day when you provide a good service for your clients and make a good living at it. To me, being a criminal defense lawyer in Pennsylvania is not work. I love what I do, and will never work a day in my life as long as I am doing this.

Today, I started out in Media, District Court. I was scheduled in front of District Judge Klein at 8:30 for a delco possession of marijuana case. My client was charged with
Possession of Marijuana, and Possession of Drug Paraphernalia. I called the police officer the week prior, and asked him if we could drop the case down to a Disorderly Conduct. Disorderly conduct is a summary offense and is a great disposition for a possession of marijuana/paraphernalia cases. It allows you to pay a fine and move on with your life. No probation, no community service, no more court dates, nor more nonsense - it's that simple, just pay the fine and move on. The officer explained to me that Judge Klein does not like to accept guilty pleas for Disorderly Conduct when drug charges are dropped. The judge does have the power to reject the plea agreement. After negotiating with the officer, he said his department doesn't normally do this, but he would speak with his sergeant about dropping this down to a Disorderly Conduct. I also called the DA that would be prosecuting the case, and got her on board with the D.C. plea. When I arrived in the courtroom, the place was packed with defendants, police and attorneys. Everything went smoothly. In court, the cop and the DA both agreed to the D.C. plea. Now we just had to get in with the judge. We slipped it in fast before she could even blink.

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October 27, 2010

Two Hour DUI Motions in Philadelphia are Just Plain Lip Service

In order for a defendant to be found guilty of a DUI in Pennsylvania, his or her blood alcohol concentration (BAC) test must be performed within two hours of driving or having "actual physical control" of a motor vehicle. In other words, the police have a two hour limit to take you back to the station to perform the breathalyzer or blood test. However, the DUI law also states that there are exceptions to the rule. The police may be late giving the suspect the BAC test if good cause is shown by the police. The following would be examples of good cause for failure to give the defendant a BAC test within two hours: there was traffic on the way to the DUI processing center, the officer's vehicle broke down, the officer had to restrain a violent defendant, there was a natural disaster etc. These are only examples that the judge or jury may consider as good cause to miss the two hour deadline. "Good cause" is a question for the finder of fact to determine.

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May 23, 2010

Driving, operating or actual physical control of an automobile can still equal DUI in Pennsylvania

While most people are familiar with the blood alcohol requirements of a DUI, what many don't realize is that you don't actually have to be driving a vehicle to be convicted. In Pennsylvania there are two aspects to a DUI prosecution: impairment by alcohol or control substances AND control of a motor vehicle. The Pennsylvania DUI statute says that an individual may not drive, operate or be in actual physical control of the movement of a vehicle while intoxicated.

The obvious and most common aspect of operation is what most people think of--driving down the road, in full control of steering and operating the vehicle. What some may not know is the broader concept of "operating" the vehicle. Prosecutors are able to show control of a motor vehicle even when it is stationary with only the engine running.

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