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Pennsylvania Criminal & DUI Defense

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COVID-19 AND THE CRIMINAL JUSTICE SYSTEM

Just as COVID-19 is wreaking havoc across the United States in terms of sickness, deaths, and lost jobs it is also wreaking havoc on the criminal justice court system. In Pennsylvania as of April 2, 2020, the courts are essentially closed down until May 1, 2020. There are some exceptions to the closure of the courts. Cases involving Protection from Abuse Petitions and Orders, certain other emergency petitions, and hearings involving people who are incarcerated are still happening just not in the way they traditionally were.  Many hearings are being conducted using “advanced communication technology.”  Well, what does that mean? It means video and telephone. Video and telephone communication have been used in the business sector for decades but not in the criminal justice court system. As a result, the courts are now trying to piece together systems to conduct necessary hearings.  It is up to each jurisdiction to determine which systems to use and how. There is not one unified system used by the various courts, jails, or lawyers in the state. It is a hodgepodge system being set up as it goes. This makes it more difficult to communicate confidentially with your client during a hearing.   It also makes it harder to cross-exam witnesses as you can’t “show” someone their prior statement or testimony or any other physical evidence.

Criminal cases are also being continued throughout the state because a lot of court proceedings are conducted in large groups where dozens or hundreds of cases are heard at one time with packed courtrooms. These hearings are rightfully being continued because lots of people in one room is very dangerous at this time.  You simply can’t practice “social distancing” in a courtroom with 100 defendants, their attorney, court staff and the prosecuting attorneys.   Criminal charges are stressful enough but with cases constantly being continued, the stress is building up even more due to the uncertainty of not knowing when a person is getting their day in court. One of the most concerning issues for a criminal defendant is that Rule 600 has been suspended during this declared judicial emergency. Rule 600 is the Pennsylvania speedy trial rule. The speedy trial rule dictates that a person has to be brought to trial within 365 days of being arrested. Of course, there are exceptions to this rule in “normal” times. However, this unprecedented move to create a blanket suspension of Rule 600 is unprecedented and will likely be litigated in the future.   Although Rule 600 has been suspended a person’s constitutional rights to a speedy trial and to due process remain in place.   How the Pennsylvania Supreme Court’s suspension of Rule 600 will affect those constitutional rights is also an issue that will be litigated in the coming months.

The pandemic has pointed out many inefficiencies in the court system.  Among these are the communications issues I discussed above.  In addition, it has highlighted the number of counties that do not participate in the statewide electronic document filing system.  Mandatory participation would eliminate the need for each county to create email addresses for filing documents to prevent in-person filings and comply with social distancing requirements. Things will constantly be changing in the next several weeks, and hopefully not months. However, this firm is and will be constantly monitoring those changes, informing our clients about them, and exposing inefficiencies and lobbying for changes in the criminal justice systems once things get back to normal.

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News Articles That Could Affect Laws In Pennsylvania

Recently there have been several different news articles dealing with rights and privileges across the US that can have an affect right here in Pennsylvania.

The American Bar Association is working with members of Congress on creating a bill to help people in Civil Asset Forfeiture cases. See my other blogs are these types of case where the Government is able to legally steal your cars, money, and even houses and businesses. This new legislation will make it harder for the government to take these items by requiring higher levels of proof from the preponderance of the evidence to clear and convincing evidence. In addition to making the government only take the property if they have probable cause, provide written notice to the property owner, and present clear evidence that the items seized were used for criminal activity. We will have to wait and see if Congress will act on these protections or continue with the status quo.

A case going in front of the US Supreme Court could have major ramifications not only here in the US but across the globe. Prosecutors are attempting to get a US based subpoena to use on servers that are located outside the US in another county. The Prosecutors claim that they should be allowed to get to these emails because they will be able to gather better evidence on a variety of crimes. Microsoft is fighting back claiming that should the US Supreme Court allow this to happen what would stop a foreign government from doing the same thing to gain access to our emails and other digitally stored data. Currently, the New York bases 2nd Circuit has ruled in favor of Microsoft. Again we will have to wait and see how the Court will rule in this matter.

First Amendment Protections were upheld in a recent case in the Georgia Supreme Court. A Defendant was convicted of disorderly conduct. The Defendant, in this case, was upset with his pastor and flipped him the bird and began yelling about sending the children to evil public schools where they would be raised by Satan, during a disagreement in with the Church’s school. Because these actions and words used were not considered fighting words or a true threat by the Georgia Supreme Court the charge of disorderly conduct was dismissed. The Court stated that Defendant’s raised middle finger was a constitutionally protected expression.

And finally Facial Recognition how safe is it, and where is this data being stored. A better question would be who exactly has access to this data. See my previous blog on securing your cell phone and what police have to do to gain access to your phone. Facial Recognition could change all of this as your face is out and open to the public. In addition, all of this data that is gathered is stored somewhere and someone has access to it; as Facial Recognition was used to identify an individual who was on the run for over forty years. A positive match was made from this data and this individual was arrested and returned to custody. What other data is being gathered and how is it being used. Could innocent people be swept up in being misidentified? We will have to wait and see how this new technology is used and as always we have to keep an eye on our right to privacy.

It is extremely important to contact an experienced law firm right away in you or someone you know is charged with a crime 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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States Across The US Are Cracking Down On Distracted Driving Including Texting While Driving?

Washington State has a new law going into effect later this month targeting distracted driving. This new law not only does not allow the use of a cell phone or any handheld electronic device but also does not allow many other forms of distractions such as eating, drinking, and smoking. This is an extreme change in the law that would allow the police to pull you over if they believe you were doing something that could have been distracting you from operating your vehicle safely. Pennsylvania has not gone this far with its ban on texting while driving, but that does not mean that a law like this will not make its way to Pennsylvania in the future.

Pennsylvania’s current law is as follows:

No driver shall operate a motor vehicle on a highway or trafficway in this Commonwealth while using an interactive wireless communications device to send, read or write a text-based communication while the vehicle is in motion. A person does not send, read or write a text-based communication when the person reads, selects or enters a telephone number or name in an interactive wireless communications device for the purpose of activating or deactivating a voice communication or a telephone call. 75 PACSA § 3316.

The penalty for violating this statute is a fine of $50.00 plus cost.

The Laws in Pennsylvania are stricter on Commercial Vehicle Operators. They not only cannot text while operating a vehicle even if the vehicle is stopped in traffic, they cannot use any handheld cellular device. They must go hands free for everything, or pull off to the side of the road before operating such devices. 75 PACSA § 1621 and 1622.

If you are stopped for using your cell phone the police could use this situation to investigate other crimes such as Driving Under the Influence, Possession of Marijuana or Drugs. If the Police suspect there are drugs in the vehicle they are allowed to search your vehicle. So a simple issue of using your cell phone while driving is not only dangerous, but could led to a full blown search.

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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Why Hospital Blood Test Are Horrible

Blood tests in hospitals are perfectly fine for use in diagnosing diseases and treating patients. However, when it comes to their use in forensic tests for prosecution purposes, they are bad. The manufacturer of the blood test analyzing machines specifically states that the tests are for diagnostic use only. Hospitals do not follow forensic testing procedures or international standards of measurement. At best they are a guess of what the alcohol level may be. A doctor does not care if a blood test results is a .07 or a .09. If it is a .14 or a .17. Doctors just want to know that there is alcohol in a patient and approximately how much so they know how to treat the patient. However, the law does. The difference between a .07 and a .09 is jail. The difference between a .14 and a .17 is a lot more jail and all of the things that go along with being convicted of a DUI in Pennsylvania.

To understand the multitude of problems that are inherent in hospital based blood tests it is important to know what is actually tested and measured. Alcohol is not what is measured. That is right. Alcohol is not what is measured. What is measured is NADH. Therefore, hospital based blood tests are indirect tests of alcohol. This testing process is an enzymatic based reaction of several compounds, including alcohol, that produces NADH. NADH is in a one to one ratio with alcohol. However, many things can form NADH. Lactate and lactic acid are two things that will read as NADH in these tests. Furthermore, whole blood, which is blood with all of the solids and liquids, is not tested. What is tested is just the liquid part of the blood which is called serum and plasma. The difference between the two is very slight so I will just refer to what is tested as serum. To get blood serum the test sample is spun (centrifuged) removing all of the solids. The solids must be removed because hospital analyzers use a light absorbance method called spectrophotometry. In this process, a light in the purple spectrum is focused on the sample and its absorbance is what is measured. Since whole blood is dark red due to the red blood cells this process could not be done on whole blood. That is why the solids are removed and the clear serum is tested.

Since a lot of traffic accident cases have hospital blood test results, the fact that lactic acid and lactate can be read as alcohol is very problematic. In most of Pennsylvania, hospital blood alcohol tests show up when there are serious bodily injuries or deaths involved. Since Aggravated Assault While DUI and Homicide by Vehicle while DUI are felonies in Pennsylvania and the punishments are harsh, it is very alarming that a lot of the blood test results in these cases come from a method that is forensically indefensible. Yet prosecutors all over Pennsylvania still use hospital blood test results and rarely question them. They have to be forced to see the many faults in these tests.

There are many other issues with hospital blood tests in Pennsylvania Alcohol DUI cases. The list is long and this blog could go on for pages but I will just summarize a few more of them. International forensic and measurement standards followed by the Pennsylvania Crime Labs and private labs like NMS are not followed by hospitals. The reason they are not is because these are clinical labs. Clinical labs are designed for taking care of patients, not to follow the rigorous standards of forensic testing. Doctors need test results fast. Following forensic standards is a slow process. Fast is not conducive to accurate. Things like chain of custody, daily calibration of the instruments, traceability to a national standard of all components used in testing for blood alcohol content, and the reporting of uncertainty are not something hospital labs are designed to follow. These issues are well known in clinical hospitals. Most hospitals in PA are audit by the College of American Pathologists. Their very own manual states that hospital blood tests should be confirmed and the labs should follow forensic procedures. I know this because I have the manual and use it in court.

All of the issues mentioned previously contribute to the uncertainty of the test result, Then, once there is a test result it must be converted to a whole blood equivalent. The reason it has to be converted into a whole blood equivalent. This is because Pennsylvania DUI law requires a whole blood test result in court. A conversion factor is used because as I wrote previously, serum has a higher alcohol content than whole blood so it needs to be converted down to a whole blood equivalent. The problem is what conversion factor to use? There are many. It is scientifically invalid to use one number as a conversion factor because it is well known that the solid to liquid ratio in blood varies from person to person and varies within a person from hour to hour so a range of conversion factors must be used. But which range. Prosecutors like narrow ranges despite published studies that show a conversion factor of percent to 47 percent is valid based on studies done of over 200 hospital patients.

When it comes to drug tests in hospitals it is even worse. What is usually tested is urine. Urine tests are screening tests. The manufacturers of the urine testing kits specifically say this. Furthermore, urine tests only show if a urine sample is positive or negative for a drug. It does not give levels, even if blood is tested for drugs, hospital drug tests are still screening tests. They too only show positive or negative test results. Furthermore, these hospital drug tests can’t differentiate between the active compounds that cause impairment and the inactive metabolites that do not. Not to mention that urine test results, even if tested in forensic labs, can’t be related to impairment. At best they can be used to show that drugs were used in the past.

Fortunately, Pennsylvania DUI laws do not allow urine or blood screening test results into evidence for use in the per se Pennsylvania DUI Drug offenses. It is also very hard to get them into evidence for use in prosecuting the drug impairment related charges.

In summary, the hospital based tests used to prosecute Pennsylvania drug and alcohol DUI offenses are fraught with problems, and a lawyer who understands them can use that knowledge to great advantage in defending people charged with DUI. I once had a DUI case in Bradford County where my client was in a roll-over accident. The test results showed the presence of cocaine, marijuana, and a .2 plus blood alcohol content. So prior to the preliminary hearing I called the hospital lab and asked them the drug screening test they used. They told me. I then got the manufacturer’s product insert. I took this to the preliminary hearing and showed them the limitations of this test. That and how they could not determine who took the blood and urine samples the case was withdrawn. My client had a long record and it was a second offense. So she was saved from a possible state sentence.

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Zoom Bombing

I just watched a news conference where the District Attorney of Centre County, Pennsylvania spoke about people Zoom Bombing and how there were multiple investigations going on. He was alleging that people were hacking into Zoom sessions and doing all kinds of craziness.

What is Zoom Bombing? Is there actually a crime in Pennsylvania called Zoom Bombing? The answer is no. According to the District Attorney of Centre County Zoom Bombing is when people hack into Zoom sessions that they are not a part of. Seems people have been hacking into Zoom sessions at Penn State and allegedly posting vulgar pictures and doing stuff to interrupt the Zoom sessions. Although Zoom Bombing is not a crime the DA believes doing so is a violation of several criminal statutes.

The DA said that these cases will be prosecuted, and everyone will be charged with Criminal Use of a Communication Facility. Other charges may include harassment and disorderly conduct. Criminal Use of a Communication Facility is a Felony of the Third-Degree with a maximum sentence of up to 7 years and a maximum fine of up to $15,000.00. A felony of the third-degree is no minor offense.

Let me focus on that charge. Here is how Criminal Use of a Communication Facility is defined in Pennsylvania:

A person commits a felony of the third degree if that person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title or under the act of April 14, 1972 (P.L. 233, No. 64),  known as The Controlled Substance, Drug, Device and Cosmetic Act. Every instance where the communication facility is utilized constitutes a separate offense under this section.

Well Zoom Bombing is not a violation of the Drug Act so we need not discuss that. The key part of this offense that may not be so easy for prosecutors to prove is a person must commit a separate underlying felony. Just because a person busts into a Zoom sessions is not automatically a separate felony. One possible underlying crime that is a felony is Unlawful Use of a Computer. That offense in summary requires illegally accessing or altering another computer or computer system.

With every new social trend it seems there is a new crime that is created by the government. Zoom Bombing is no different. It is a cool name but not a real charge. It is a headlines grabber.

One definite defense is the definition of the statute. By that I mean whatever charges come about from Zoom Bombing a person must look closely at the allegations to see if they match what the statute says is illegal. Merely being charged does not a conviction make. Another big defense is identity of the person accused. Is the alleged Zoom bomber the person who did the Zoom Bombing? If questioned by the police, the last thing you do is admit anything or apologize. Do not give any statement at all. Be polite and ask for a lawyer. Even if you have done nothing wrong. Police don’t ask you questions because they are bored. They ask questions because they think you did something wrong. A person has the right to remain silent when questioned and not talking is a very good thing.

Besides jail, fines, public shame, and all that goes with a conviction for a felony another concern is getting kicked out of school. If proven to be a Zoom Bomber a college has the right to punish a student and maybe even kick them out. The school disciplinary system gives a student very little rights so one must be careful if a police officer or a member of the school disciplinary system contacts you about this stuff.

College disciplinary divisions hold little regard for the constitution and all of the protections that come with the Bill of Rights. A student found to have been a Zoom bomber will not only face criminal charges, they face expulsion and losing all of that time and money put into getting a degree.