Manchester and Associates

Pennsylvania Criminal & DUI Defense

Constitutional Rights

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Can I Have My Criminal Record Expunged?

In the state of Pennsylvania there are three ways to have your record expunged. The most common way is when an individual completes the ARD program the charges that were part of that program are eligible for expungement. The next way is if you are over the age of 70 and not arrested within the last ten years. And the final way is if you have been dead for three years. There are currently no other ways in PA to receive an expungement.

The question I hear then is what about that law that was signed about a year ago that keeps employers from seeing my records. Yes that law exists and it is called a limited access expungement. What is actually does is not expunge your criminal records but seals them from employers. The legal system and police will still be able to access your criminal records.

The limited-access provision can be requested for second or third degree misdemeanor convictions, including ungraded offenses, provided that the individual has completed all punishments relating to the convicted offense and has had a clear criminal record for at least ten years. The law excludes some individuals from the limited-access process. Individual if they have offenses punishable by more than two years in prison, four or more offenses punishable by one or more years in jail, some misdemeanors like simple-assault offenses, some sex-crimes offenses, witness intimidation offenses, and offenses that require Megan’s Law registration. If you and your convictions meet this criteria then you can apply for the limited access expungement.

New Legislation is being worked through Harrisburg to provide a “clean slate” for Pennsylvanians with a criminal record passed the Senate on June 2, 2017 unanimously. Senate Bill 529 would provide those with low-level, nonviolent criminal records a mechanism to have their record automatically sealed from public view. Again this is not an expungement but a sealing of the records. Should this legislation pass through the house and be signed by the Governor then this would give people another avenue to restrict access to their criminal history for minor offenses.

If you, your son, daughter, loved one in Pennsylvania were charged with a crime in Pennsylvania and want to see if your record can be expunged or sealed or have been arrested for a crime in state or federal court in Pennsylvania you need legal representation. Here at Manchester and Associates we represent people across the Commonwealth of Pennsylvania. For a free consultation we can be contacted at 1-800-243-4878.

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Levels of Detention

In an earlier blog I discussed the misconceptions of Miranda warnings and talked about the different levels of police detention. In this article I will discuss these levels in more detail and your rights as a citizen during each level.

Police Detention Levels

In Pennsylvania there are three main levels of interactions with police. They are the

  1. “mere encounter”
  2. “investigative detention”
  3. “custodial detention”

These levels are extremely important when dealing with search and seizure issues with the 4th amendment of the US Constitution and PA’s Constitution. These levels offer different rights during each level of interaction and limits on police.

Let’s start with the least intrusive and work our way up.

Mere Encounter.

The police can approach you at this level with no support of any level of suspicion. However you as a citizen have no official compulsion to stop or respond to the police.

As an example if you are walking down the street, the police can walk up to you and ask to talk to you. You do not have to respond as long as they have no suspicion that you have done anything wrong.

You can walk away.

The problem is you will not know what suspicion the officers might have. If they have a level of suspicion then we move up to our next level of interaction.

Investigative Detention.

The police at this point must have a reasonable suspicion that you have been involved in some type of criminal activity. This level of suspicion required the police to be able to articulate the facts that rose to the level of reasonable suspicion.

During the Investigative Detention the police are allowed to stop and detain and question you for a period of time, this exact period in undefined by the courts. However this detention cannot involve coercive conditions as to constitute the functional equivalent of an arrest.

An example of this type of detention is when a person is pulled over for suspicion of DUI. The police at the beginning of the stop must be able to articulate facts supporting the stopping of an individual for DUI, even though they do not actually know whether you are driving DUI.

That can be determined during the detention of the individual when the officer can investigate the DUI by having the person go through field sobriety test and usually involved a portable breathalyzer.

Custodial Detention.

Now the police must have probable cause. Once into the custodial detention phase you have been arrested for a crime in which the police must be able to meet their burden of probable case. Now your Constitutional rights begin to start applying; especially if the police start to interrogate you.

If the police are interrogating you, your Miranda rights now apply, which include the right to remain silent and the right to an attorney.

Should you find yourself in a situation where you need legal representation you need to contact criminal defense attorneys that are going to know the law inside and out. Here at Manchester and Associates we represent people across the Commonwealth of Pennsylvania. At Manchester and Associates, we only practice in criminal defense, thus we understand when people find themselves accused or charged with a crime, and the challenges that each individual case could face in the PA judicial system. With a combined experience of over 65 years, there is almost no situation we have not encountered. For a free consultation we can be contacted toll free at [number type=”1″].

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Why Was I Charged With A Felony For A Mistake On My PA Gun Application?

More and more we are seeing people being charged with Felonies where the police are claiming that they were intentionally or knowingly providing false information on an application for a firearm. In addition to this they are charged with a misdemeanor for Unsworn Falsification to Authorities. Most of the mistakes that occur on these applications stem from the Federal Law language that does not always translate properly to PA state laws.

Prior Criminal Convictions

When the application discussed your prior criminal convictions it ask if you have ever been convicted, plead guilty to, or pleaded nolo contender to, or no contest to a crime punishable by imprisonment for a term exceeding one year. This sounds simple but it’s not. This federal application says one year, but what it actually means is did you face a charge where you could have been punished with imprisonment for more than two years. In the State of Pennsylvania this would include all offenses graded as an M1 for greater. Most M2s and below would not fit into this category. However if you are convicted of a crime of domestic violence you lose your gun rights forever. Even if it is not an M1 or greater offense. The other big mistake people make with this question is that they might have faced a punishment greater than two years, but received a shorter sentence and may not have gone to jail at all. However the application is not asking what you did receive it is asking what you could have received. If you are unsure you need to stop filling out the application and contact an attorney. Do not ask the gun shop owner as they are not allowed to give you advice, and if you submit the form and it has an incorrect box checked. The next thing you know you have state police knocking on your door with felony charges for you. All denials through the PICS system are reported to the State Police for investigation and they will file charges as they are required to do so. Some people think if they can buy a hunting license they can buy or possess a gun. Absolutely not. That is an old-wives tale that will land you in jail.

PFA Orders

If you have a temporary Protection From Abuse (PFA) order against you or if you have a PFA hearing and you lose and a PFA is ordered for up to three years you are prohibited from retaining or purchasing firearms for the term of the PFA. PFAs in Pennsylvania can expressly state that your gun rights have been revoked; other PFAs can expressly state that there is no restriction on your gun rights. However, that does not mean that the PFA does not restrict your Federal right to purchase a firearm. If your PFA is active do not attempt to buy or possess firearms.

If you, your son, daughter, loved one in Pennsylvania was arrested for illegally filling out a firearm purchase application in Pennsylvania or has been arrested for any other type of crime in state or federal courts you need legal representation. Here at Manchester and Associates we represent people across the Commonwealth of Pennsylvania. For a free consultation we can be contacted at 1-800-243-4878.

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Will My Charges In Pennsylvania Affect My Gun Rights?

Many different convictions in Pennsylvania will affect your ability to purchase, own, and possess firearms. Most people when they are facing criminal charges are worried about the immediate consequences such as how much is this going to cost me, how long will I have to go to jail, or how long will I be on supervision. Not everyone thinks about the secondary effects of a criminal conviction such a will this conviction affect my immigration status, does this conviction have a license suspension, or will this conviction affect my right to purchase, own, or possess firearms. These secondary consequences are called collateral consequences and not every attorney will be aware of them or know how your particular case will be affected by them.

If you are a hunter, gun collector, or even just enjoy going out to the range every now and then; a conviction in Pennsylvania even to some misdemeanor offenses can result in a lifetime ban on your gun rights. Pennsylvania statute 18 Pa CSA 6105 goes through the offenses that would result in losing your gun rights and that list is long. Some of the Offenses included are: felony offenses all the way down to a drug conviction in which the sentence could have been longer than two years, even Driving Under the Influence (DUI) convictions, if you have convicted of three or more within a five year period. Also included are individuals with active Protection From Abuse (PFA) orders and numerous Juvenile convictions.

So far I have only discussed the Pennsylvania restrictions; there are also Federal restrictions on your gun rights when you have been convicted. The Federal Firearms Act states any crime punishable by imprisonment for a term exceeding one year will not be allowed to purchase, own, or possess firearms. For crimes in Pennsylvania this means all felonies and misdemeanors of the first degree. However even if you did not receive a sentence where the maximum punishment was over two years does not mean that you were not subject to a possible sentence of incarceration exceeding one year. Meaning that your gun rights depend on what you could have been sentenced to in Pennsylvania not what you were actually sentenced to.

Do not be surprised when it comes to a collateral consequence of a criminal conviction. Especially when it is dealing with your gun rights, losing your gun rights can be devastating if you are required to carry for your employment, or even if you just enjoy hunting or target shooting. Going into a case without the right representation can have disastrous consequences beyond the immediate penalties of jail, supervision, or fines.

It is extremely important to contact an experienced law firm right away if you or someone you know is facing criminal charges in Pennsylvania. If you, your son, daughter, or loved one in Pennsylvania has been arrested for a crime in state or federal court in Pennsylvania you need legal representation. Here at Manchester and Associates, we represent people across the Commonwealth of Pennsylvania. For a free consultation we can be contacted at 1-800-243-4878.

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Your Miranda Rights

We’re all familiar with it – “You have the right to remain silent” and so on and so forth. This phrase is part of the Miranda Warning, otherwise known as your Miranda Rights. But you’ve probably never really dug into what these rights actually mean for you, so I will explain them here.

Misconception about the Miranda Warning

While reading the American Bar Association journal today I came across an interesting article on misconceptions about our US Constitution. This got me thinking about our US Constitution and our PA Constitution and other general misconceptions with the law.

One of the main misconceptions I hear from clients is that they were never Mirandized when they were arrested. This I am sure comes from the numerous cop television shows and movies were a person is tackled to the ground and the officers immediately state the Miranda Warnings; however even if you are arrested under the law you do not ever have to be Mirandized. As long as you are not being “interrogated” these warnings never have to be given.

The main distinction here is the level of control the police are influencing over you and whether or not you are in custody and being “interrogated”. As far as the different levels of incarceration/police control, that is a complicated subject on its own and I will discuss those levels in a later post.

3 Levels of Police Control

For now, I will just state that there are three main levels of police control over an individual:

  • the “mere encounter”.
  • the “investigative detention”.
  • and the “custodial detention”.

Now Miranda rights can be given at any time but are only required during “custodial detention” and if you are being “interrogated”.

What Do I Do If My Miranda Rights Are Violated?

If they are not given in this situation and the police are using the statements that you gave to them against you, only then can you make a claim to the Court that your Miranda rights have been violated.

At this point the issue will need to be brought in front of a Judge and ruled upon to limit the police from using the statements and preclude then from testifying about the statements.

When it comes to being arrested for a DUI in Pennsylvania your right to remain silent and Miranda rights get murkier. In Pennsylvania, if you are sitting in your car and a police officer asks you questions you are not considered in custody so everything you say will get used against you.

Once you get to the hospital you are even told by the police officer you have no right to an attorney before they ask you to give blood. Not until after the blood test does a police officer give you your Miranda rights warnings. However, to even make this more complex once arrested and put into the police car if they ask you any questions then you are considered in custody and they have to give you Miranda warnings but then at the hospital in terms of the blood test you don’t have any rights. Very messed up system in Pennsylvania so you must never answer any questions the police officer asks you other than biographical data. This avoids any issues.

Other than that, remain silent and ask for a lawyer.

If You Are Charged with a Criminal Offense, Call an Experienced Attorney Immediately

If you are charged with a DUI or other Criminal offenses, contact Manchester & Associates ASAP for a Free Strategy Session.  You will use this no-obligation Strategy Session to begin building your defense and have your legal options explained to you.