Manchester and Associates

Pennsylvania Criminal & DUI Defense

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Felony DUI in Pennsylvania (updated for 2020)

On December 24, 2018 the grading of some DUI offenses in Pennsylvania became felonies. Yes – felonies! Prior to that day, the highest grading a DUI in Pennsylvania could get was a first-degree misdemeanor. The maximum punishment was no more than 5 years and a $5,000.00 fine. Now with felony DUI, they are graded as a third-degree felony with a maximum punishment of up to 7 years and a $15,000.00 fine. What is worse is in all but one instance the mandatory minimum is one year and that has to be served in state prison. Our legislators did not see fit to allow a person to be able to serve a one year minimum when it is a felony in county jail like they did when the grading was a first-degree misdemeanor.

It used to be that the only time that a felony was charged in relation to a DUI is if a person died or received serious bodily injury. Those charges are Homicide by Vehicle While DUI and Aggravated Assault While DUI. However, the underlying DUI was always a misdemeanor. Now the DUI can be a felony all by itself.

To be charged with a felony DUI in Pennsylvania a prosecutor must show one of these scenarios: That the DUI is a third offense in the past 10 years and the driver’s BAC is equal to or greater than .16. That the driver was impaired by drugs, or that the driver had certain drugs or metabolites of drugs in their blood whether impaired or not. Another way a person can be charged with a felony DUI is if it is their fourth offense in 10 years regardless of the BAC or if drugs are involved.

The only time a felony DUI does not have a mandatory minimum is if a person has a BAC less than .1 or is found guilty of incapable of safe driving. Incapable of safe driving is equivalent to the old-fashioned drunk driving charge. The government needs to prove a person drank a sufficient amount of alcohol that they are incapable of safe driving. If the BAC is less than .1 or incapable of safe driving the mandatory minimum is 10 days, but the maximum is still seven years.

I must stress that either 10 days or 1 year are just mandatory minimums. Judges do not have to give minimums. The prior DUI offenses a person has been convicted boost their prior record score points which raises the possible sentence past the mandatory minimum. Having lots of points is not a good thing.

Now the only good thing I can say, well good in a bad situation, about felony DUI charges is you defend them the same as you would any other DUI. You get all the police reports, check out the scene of the pullover and the road leading up to the pullover. You get the video and body camera recording if they exist.

Police car videos, body camera videos, and the audio recordings are pure gold in terms of defending DUI. Just two weeks ago from the date of this blog this firm defended a felony DUI based on marijuana intoxication that led to an offer of two traffic tickets. It was a medical marijuana DUI.

The State Trooper pulled our client over for illegal equipment on his truck. That led to field sobriety tests. Our client did well on the field sobriety tests. In fact, it was the cop who stumbled while demonstrating the field tests. If a person just read the police officer’s report it sounded like our client was impaired and should not have been on the road. The police officer did not note in his report that he himself stumbled. Surprise surprise.

In another recent case this firm received a reduction of a felony DUI down to a misdemeanor DUI. The sentence went from 1-year minimum offer in state prison to 120 days minimum in county jail with work release. The BAC alleged was .170 with an uncertainty of +/- .010 and a confidence interval of greater than 99 percent. That means every possible result from .16 to .18 was equally as likely. Since the law for the highest tier DUI in Pennsylvania is .160 or greater on the face of it the uncertainty (margin of error) did not help our client. However, we were not satisfied, and never are, with a one-page piece of paper with a number on it that makes our client look guilty. Since the test was done using gas chromatography at a private lab, we ordered all the testing data from that lab. All 200 plus pages. Well the data was revealing. There were several issues with the test but the most obvious one was the reported test result was inflated and did not exist. There were three test result. One was .167 and two (done at the same time on a duel column injection) of .172 and .173. So, this lab reported the average as .170. That test result was made up. They did not report the lowest test result of .167.

Not reporting the lowest test result of .167 was significant. Applying the uncertainty of .167 takes the lowest test result to .157 and with the confidence interval of greater than 99 percent that means .157, .158, .159 were just as likely the true result as was .177. Therefore, using proven science the government could not prove that the BAC was .16 or greater beyond a reasonable doubt. There were other issues that put doubt into the test result itself, but this issue was blatantly obvious, and an expert was not needed to expose this.

While felony DUI are very serious with significant consequences, merely being charged with them does not equal guilt, as the two case examples above show. Well as long as the case is defended properly using science and the knowledge of field sobriety testing as well as getting ALL of the evidence. Not just what the government gives you.

– Brian Manchester, Esq.

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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.

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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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Domestic Violence Charges in Pennsylvania

People often call our office and say they have been charged with Domestic Violence.  When we hear that, we always ask what the exact charges are because in Pennsylvania “Domestic Violence” is not an actual charge. It is a label that is applied to other offenses which can make the punishment more serious.  The typical offenses that are charged in a “domestic violence” incident are Harassment, Simple Assault, Aggravated Assault, Reckless Endangerment, Strangulation, and Unlawful Restraint. What makes them domestic violence related is when these crimes occur where the victim is a spouse, boyfriend, girlfriend, domestic partner, child, or family member of the person accused of these crimes.

A charge labeled as domestic violence related is treated differently and more harshly by the law. The harsher treatment starts at the investigation stage. When a police officer investigates a crime and it is determined to be domestic violence related and they see any physical signs of injuries the police officer may and usually do take the defendant into custody. For example, if a person calls the police and says their husband hit them and they have a bruise or scratch, then the police officer most likely will take the defendant into custody right away and file charges before an in-depth Investigation is completed.  

If you are charged with crimes that are designated as “domestic violence” the Magisterial District Judge who sets bail in your case can add conditions of bail preventing you from contacting your alleged victim or even preventing you from entering any residence the alleged victim lives in, even if you pay for that residence. For example, if a husband accused of assaulting his wife and they own a house together, a bail condition will likely be that the husband can’t go back to his own house.

If you are ultimately convicted of a domestic violence related offense you can be sentencing to a period of probation up through a state prison sentence depending on the offense you are convicted of.  You will also be required to participate in domestic violence related counseling.  Failure to complete that counseling can be the basis for a revocation of your supervision.  There are also collateral consequences if you are convicted of a domestic violence related offense. If a person is convicted of domestic violence, they lose their right to possess a firearm forever. It could even cost a person their professional license or security clearance.

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Felony DUI in Pennsylvania

Up until December of 2018, the only time you could be charged with a felony related to a DUI offense is if someone was seriously injured or killed. If someone was seriously injured the charge would be Aggravated Assault by Vehicle While DUI. If someone was killed the charge would be Homicide by Vehicle While DUI. The actual DUI charge itself was still graded as a misdemeanor even if someone was hurt or killed.

On December 24, 2018, that all changed. On that day the new DUI grading and sentencing law came into effect in Pennsylvania. Certain DUI offenses are now graded as felonies. A felony DUI now has a mandatory minimum of one year with a maximum of seven years. The way the law is written now the jail time has to be served in state prison.

A person’s third offense in ten years with a BAC of .16 % or higher or if the DUI is drug-related is now graded as a felony. All fourth DUI offenses in ten years are now felonies. The only exception to the one-year mandatory minimum in state prison is if it is a fourth offense and a person has a BAC below .10 % or is charged with a general impairment DUI. A person can be charged under the general impairment section in Pennsylvania if that person has imbibed a sufficient amount of alcohol to make them incapable of safe driving.

As I said above drug-based third or fourth offense DUI charges in ten years mean a person is facing a minimum of one up to seven years in state prison. Drugs include prescription drugs that are legally taken as prescribed, as well as prescription drugs that are prescribed. It also includes prescribed medical marijuana.

People who call us for representation in these matters often ask how we defend against these DUI charges. The answer is more than just aggressively and hard like most lawyers say. Aggressive and hard are not enough. We defend these charges using decades of experience and most importantly science. My team is trained in field sobriety testing, analytical chemistry, pharmacology, and many more areas relevant to defending DUI cases. We are constantly learning to know as much, if not more than, the police, lab technicians, and toxicologists the government always calls as witnesses in these cases. This firm also keeps up on new developments with the law.

Here is one example of how knowing analytical chemistry and what to look for saved a client from state prison in an alcohol-based DUI. The person was charged with her third offense in 10 years. The lab said her BAC was .17 % with an uncertainty of +/- .01. with 99.87% uncertainty. That means the lab was 99.87% certain that her blood is anywhere from .16 %to .18 %. In Pennsylvania .16 %or greater is the highest tier and for a third offense in ten that is a mandatory minimum of 1 year in state prison. The DA was unwilling in this case to lower the offense to a middle-tier first-degree misdemeanor offense with a mandatory minimum of 90 days that can be spent in county jail.

What we did was subpoena all of the data on the test from the lab. About 250 pages worth of data. The data was revealing. Turns out there were three test results and .17 % was none of them. They had three different test results and the lowest was .167 %. The lab averaged them to .17 % and reported it to the police. The lab never told the police officer that the lowest test result was .167 %. That is significant. That means with an uncertainty of +/- .01 and a confidence interval of 99.87% the range of possible test results was now .157 % to .177 %. The lowest possible result,  .157 %, is less than .16 %. The confidence interval of 99.87% means that every test result is equally as likely to be the true test result. Thus, .157 %is equally as likely to be the true test result as .177 %. As a result, the prosecution would not be able to prove beyond a reasonable doubt that our client’s blood was greater than .16 % thus making it a felony DUI. Once we showed this data to the DA the case was settled favorably for a county sentence.

A good example of keeping up with the law recently helped another of our clients who was facing a felony DUI based on Medical Marijuana. In Pennsylvania, it is still illegal to drive with any amount of THC in a person’s blood, even if the THC comes from lawfully prescribed medical marijuana because THC is a Schedule I drug. However, a case was recently decided that takes Medical Marijuana out of schedule I if the medical marijuana patient is complying with the medical marijuana laws. We presented this new case to the prosecutor and it resulted in a very favorable result for our client. Our client will not be a felon or go to state prison because of the case law we presented to the prosecutor.

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Why Is A Bail Hearing Required?

Bail hearing can be scheduled by either party, either by the Commonwealth or by the Defendant.  Most of the time a bail here is requested by the Commonwealth because they are either asking to have the bail increased or to have the bail revoked for some alleged violation of the bail conditions.  A Defendant can ask for a bail hearing to either reduce the amount of bail set, to change the type of bail set, or to remove a condition of bail.

The most common types of bail are:

ROR (released on your own recognizance): here you do not have to post any funds or property the Court is relying on your word that you are going to show up for Court when scheduled to do so in the future.

Unsecured bail: here the Court is releasing you without having to post any bail, however if you violate a bail condition you could owe the Court the amount of money that the Court set as the unsecured amount.  Thus the Court is saying as long as you show up to court and do not violate any conditions we are good, however if you violate then we will come after you for the money.

Monetary bail: here the Court will not release you until after you post the amount of money that the Court sets.  This can be posted either through a bail bondsman or through your own funds.  In addition you could use property as collateral for the Court such as your house.

Some Courts mostly Federal, but some State Courts require what is called a Nebbia Hearing before anyone can post bail for you.  This is also called a bail source hearing.  The Courts request this hearing because they want you or whoever is posting your bail to prove that the funds in which you are using to post the bail are from legitimate sources and not the proceeds of illegal activity.  The most frequent type of case in which these hearing are mandated is in drug related cases.

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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ROR Bail

One of the most common types of bail is ROR Bail, or “released on own recognizance.”

What Is ROR Bail?

What it actually is, is a promise to appear at all future court proceedings, not requiring any form of cash or property collateral like other forms of bail. There are often conditions imposed by the court that you will read about soon.

Can You Get ROR Bail?

All charges except for homicide are eligible for bail.

Whether or not you can get ROR bail from a court depends on a list of factors such as:

  • The severity of the offense.
  • Your history of prior offenses and whether you’ve made your past court hearings.
  • If you are considered a flight risk.
  • Your background check.
  • Family and ties to the community.
  • Your employment status.

Examples of criminal offenses that are commonly approved for ROR bail are:

  • DUI
  • Drug Crimes
  • Other non-violent offenses.

Overall, you must not be seen as a threat to the community and the judge is sure you will appear for court. You also must not be seen as a flight risk.

What Happens If ROR Is Granted or Denied?

If ROR is denied then you will need to post bail whether it is with cash or property as collateral.

If it is granted, you may face many stipulations such as:

  • Travel restrictions.
  • Stay-away orders.
  • Rehab classes.
  • Check in with a supervising officer.

What Happens If I Violate My ROR Bail Conditions?

Your bail will be revoked and you will be brought back to jail.

Unlike unsecured bail, there’s no monetary penalty set for a bail violation. However, by violating your bail conditions whether it is court-imposed restrictions or not appearing for a court date, you may face steeper legal penalties if convicted of what you were charged with.

What Is Next After ROR Bail?

Generally if you are granted ROR bail, the crime you are charged with is eligible for the Accelerated Rehabilitation Disposition (ARD) program. The ARD program is often where a lawyer comes in.

An experienced lawyer can successfully help you apply for ARD and have your charges dismissed or expunged after completion of the program.

Those who don’t qualify for ARD often are eligible for probation rather than jail time.

Why Bail Type ROR May Be Denied

Why ROR may be denied is for similar reasons it is granted, but with a few differences:

  • The nature of the offense.
  • Lack of ties to the community.
  • A prior criminal record.
  • Past instances of non-compliance with bail.
  • Past attempts to flee prosecution.
  • Your character.
  • Any known addictions to alcohol or drugs.
  • All other relevant factors.

What Do I Do If I Need Help With Bail?

Throughout the years, Brian Manchester and his associates have helped their clients be released on ROR bail whether it’s by getting them in touch with the best bondsman serving Pennsylvania or guiding them through the process themselves.

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What is Institutional Sexual Assault and its Punishments?

18 Pa.C.S.A. § 3124.2§ defines Institutional sexual assault.

Institutional sexual assault specifically applies to sexual contact between two individuals who have a specific relationship. The law includes out many individuals who may be charged with this offense, including employees of the following:

  • Department of Corrections or another correctional authority.
  • Juvenile detention facilities run by the state or county
  • Youth forestry camps, Youth development centers.
  • Groups homes or other residential facilities that serve youth.
  • Mental health facilities. Employees of any of these institutions may be charged with institutional sexual assault if they have sexual contact with a resident, patient, or inmate of the facility in which they work.

Employees of these institution may be charged with ISA if they’ve had sexual contact contact with a resident, patient, or inmate of the facility where they work.

Punishments for Institutional Sexual Assault

Punishments for Pennsylvania institutional Sexual Assault can include:

  • Jail or prison up to 7 years.
  • Fine from $2,500 to $15,000.

The punishments for ISA are rather severe. This is because the employees are responsible for the safety and welfare of those they deal with. In most cases, the person who is sexually assaulted is unable to leave the facility, adding to the severity of the chargers.

Examples of Institutional Sexual Assault Charges

In 2018, Lackawanna County Prison recently had a high profile case where 7 current and former Correctional Officers were charged with Institutional Sexual Assault (among other crimes) of inmates occurring over a period of several years. The guards allegedly used their positions of authority to coerce the women into performing sex acts on them in multiple locations including cells and utility closets. The guards promised the women things like extra phone time, food and cigarettes.

In 2017, a female prison guard was also charged with, and convicted of, institutional sexual assault. A 42 year old Chambersburg woman pled guilty and stated that she touched a male inmate’s in his 20’s genitals. She was sentenced to 2 months of incarceration and 4 months of electronic monitoring.

If Charged, Call an Experienced Lawyer

If you find yourself, or a loved one finds themselves accused of Institutional Sexual Assault, it is crucial to call a Criminal Defense Attorney immediately. For a Free Strategy Session, contact Manchester & Associates immediately to begin building the defense against these charges. We want to help.