Manchester and Associates

Pennsylvania Criminal & DUI Defense

Legal Blog

By

DO NOT TALK TO THE POLICE. NO MATTER WHAT.

From the desk of Brian Manchester, Esq:

Upon first meeting with a client and hearing their story, the first question I ask is “have spoken to the police?” If they tell me that they have, I then ask “have you told the police what you told me? Often enough, the answer to both of these questions is yes.

When I hear a yes to either or both of those questions, I cringe. Why? Because talking to the police gives control of my client’s story to the police. They may have heard something wrong. They may have written a note about what my client said that was incorrect. They may misperceive what my clint said – or, in rare cases, outright lie about it. 

Our founding fathers were very smart. They created the Fifth Amendment to the constitution for a reason. Please follow it.

When my clients remain silent, we then control the narrative. We get to control what we say, when and to whom. We can decide to say nothing at all. It gives my clients and me the power to investigate leads, gather evidence, and talk to experts first before the police talk to them. There is EVERY advantage to remaining silent and NO DISADVANTAGES to it.

Client’s often ask me something like this: “Well if I don’t talk to them. They will think I am guilty!” The police are speaking to you because they suspect or believe that you might have done something illegal. Police are not bored. They don’t go around talking to random people about crimes. If an officer suspects you then they want to talk to you. DO NOT do it. Do not give them an advantage. You can’t talk your way out of anything. Being questioned by an officer is a stressful thing. Think back to times in your life when you were stressed. Do you express yourself clearly when you are stressed? Do you get all of the details right when you are stressed? Do you stutter or trip over your words when you are stressed? These are all things that you do not want to do when you speak to police officers.

Once I represented a man charged with murder and the prosecutor wanted the death penalty. The police never could have charged my client without him giving a statement to them. Fortunately, I was able to have the death penalty thrown out before trial and at trial he was convicted of third rather than first-degree murder. My client talking to the police almost cost him his life. Do not do it. Also do not lie and try to talk yourself out of something. That just makes it worse and if you have not done anything, it makes you look guilty and makes the defense of your case extremely hard.

          There are many reasons why remaining silent is the only way to go. I could go on for pages. However, in all my years of practice, I have never found a better explanation than that offered by the video below. This is a lecture given by James Duane, a professor from Regent University School of Law. Please watch the whole thing:. It may be the best and most helpful video you have ever watched.

By

HOMICIDE BY VEHICLE WHILE DUI

CHARGES FILED IN MCKEAN COUNTY

An Olean, NY woman was charged with Homicide by Vehicle while DUI and related charges following a vehicle accident that occurred in January of 2021 in Ceres Township, McKean County. Among the charges filed was possession of marijuana.

The news report said that the woman charged was taken to a hospital in Olean, NY after the accident. That is a significant fact in this case. It is significant because her blood was likely drawn at that hospital. NY does not have the same laws that Pennsylvania has relating to the drawing of a blood test for legal purposes. Furthermore, hospital blood tests generally use an enzymatic method that does not comply with forensic standards. If marijuana was found in her blood or urine and the testing was done at the hospital, then under Pennsylvania law, the test results will not be admissible.

The reason urine test results are not admissible is because in 2016 urine was eliminated as a matrix that could be tested when Section 1547 was amended by the Pennsylvania. Furthermore, even if blood was tested, hospitals are not approved for testing for drugs. Only forensic labs, and only forensic labs certified by the Department of Health, can test for drugs and have their results be accepted in Pennsylvania Courts as evidence. The blood test that is used to find alcohol is also fraught with issues.

Several years ago, this firm handled a DUI in McKean County where our client was taken to a hospital in Buffalo and his blood was drawn there. The blood was eventually shipped from the hospital to a Pennsylvania State Police Lab for testing. We found that the blood tubes were not forensic tubes and they had no preservatives in them. That and there were chain of custody issues and other problems with the testing in that case. The blood alcohol content was alleged to be over .28. Because of the issues in the testing my team and I found, the case settled very favorably with our client getting to keep his driver’s license and his salesman job.

One of the most powerful pieces of evidence in a Homicide by Vehicle While DUI case is the blood test. Every aspect of the test should be investigated and attacked if feasible. Just because the government says they have a test results showing alcohol, drugs, or both, does not mean the test results gets admitted or is as good as they say.

About Us

Manchester and Associates is a law firm dedicated to criminal defense that operates throughout the Commonwealth of Pennsylvania since 1978.  Our 5-star ratings prove what our firm is all about:  making sure that the best possible outcome for our clients is achieved. Our team is comprised of lawyers who are specifically trained as to how blood is tested and the defenses to those tests. One of our team members is a member of the American Chemical Society and is a Certified Lawyer-Scientist through them. He is also a national lecturer on blood and drug testing. We are the law firm that teaches other lawyers how to properly defend DUI and Homicide by Vehicle While DUI cases. If you find yourself charged with Homicide by Vehicle While DUI and related charges, please call our team right away for a free consultation.

By

TEXAS MAN CHARGED WITH HOMICIDE IN UNION COUNTY

This week the Pennsylvania State Police announced the arrest of Travey Rollins for the murder of a woman whose body was found alongside Interstate 80 last week near Milton, Pennsylvania. Currently the State Police say he is charged with Homicide.

In Pennsylvania, Homicide is a general charge. At the time of arraignment, the prosecutor must pick a specific category of Homicide. In Pennsylvania the specific charges under the general category of homicide are First-Degree Murder, Second-Degree Murder, Third-Degree Murder, Voluntary Manslaughter, and Involuntary Manslaughter.

First-Degree murder in Pennsylvania requires a prosecutor to prove a person committed a premeditated, unlawful killing of a human being. The time required for the plan to kill can be brief unlike in TV shows where they show a person lotting to kill another for a long time. This charge carries automatic life in prison and possibly the death penalty if an aggravated factor is proven beyond a reasonable doubt.

Second-Degree murder, also called Felony Murder, is the act of killing another person during the commission of a felony such as robbery, arson, kidnapping, drug dealing. Second-Degree Murder applies to both the principle and any accomplice. The typical scenario given is the driver of a getaway car for a robbery can be found guilty of second-degree murder when one of his gang kills the bank guard and he/she does not. The penalty is life in jail.

Third-Degree murder is all other kinds of murder. It requires malice but not the intent to kill. It can be described as killing someone but not planning the killing and not done while in the process of committing another felony. The maximum penalty is 40 years.

Voluntary Manslaughter is defined as the unlawful killing of another person without legal justification, if at the time of the act, the individual is acting under a sudden and intense passion or under serious provocation. Legal justification is a defense. Self-defense is legal justification. The typical example of Voluntary Manslaughter is when a person catches their spouse with another person and they kill them or when someone dies in a fight where the person who did the killing was provoked by the deceased. The maximum penalty is 20 years.

Then there is Involuntary Manslaughter. This version of homicide is the only misdemeanor. All other versions of homicide are felonies. It is defined as the killing of another person that resulted from an unlawful act which was committed in a reckless or grossly negligent manner. The maximum punishment for this offense is five years in jail.

The facts that are known about this case are interesting but by no means does the prosecutor have an open and shut case. They must prove the intent of the person accused as well as the murder occurring in Union County and many other things. Murder cases are complex, full of emotion, and very evidence intensive. Having tried several murder cases across the state, I can say that just because someone is charged with homicide does not automatically mean they will get convicted and a life sentence.

About Us

Manchester and Associates is a law firm dedicated to criminal defense that operates throughout the Commonwealth of Pennsylvania since 1978.  5-star ratings prove what our firm is all about:  making sure that the best possible outcome for our clients is achieved. We use a teamwork approach in all of our major cases and one of our team members is a former District Attorney. This gives us an advantage of reviewing your case from both the prosecution and defense side. Our lawyers have handled multiple murder cases across the state of Pennsylvania. Let our collective trial experience earned over several decades aid your defense.

By Leave a Comment

CLEARFIELD DOCTOR CHARGED WITH PRESCRIPTION DRUG DUI

Recently, a doctor in Clearfield County was charged with a DUI based on her use of prescription medication.

The doctor is accused of having the prescription drug Gabapentin in her system.  Gabapentin, which has the brand name Neurontin, is a schedule V (five) drug. It is used to treat seizures and neuropathic pain which are often caused by diabetic neuropathy.

A prescription drug DUI is treated at the top level of punishment just like when someone has a blood alcohol content of greater than .16. It is not right that a prescription drug DUI is treated so harshly in Pennsylvania, but it is and that is why an aggressive defense is necessary. A first offense DUI based on prescription drugs can result in 72 hours to 6 months in jail plus one year’s license loss and in the case of a doctor, possible loss of the license to practice medicine. If it is a second or third offense, then the punishments get far worse.

There are multiple defenses to prescription drug DUI cases: 

  • The first defense is explaining to a judge or jury the underlying medical condition the person charged has and the physical and mental effects the disease or injury has on them.
  • The second defense is to then point out to the judge or jury why the medication is necessary to help the person charged and how they are actually worse off by not taking the drug. People take medication because they are sick or injured. It is not illegal to drive while sick or injured. A lot of people with chronic pain and mental conditions are not capable of safely driving WITHOUT their medication but are fine when they take it.
  • The third defense is pointing out that Standardized Field Sobriety Tests have never been scientifically validated to determine if a person is impaired by prescription medication.
  • The fourth defense is that many of the physical signs that police officers say are indicators of impairment are, in fact, physical and mental side effects of the underlying injury or disease.

There are many other defenses to these cases and more so than in alcohol related DUI cases.

About Us

Manchester and Associates is a law firm dedicated to criminal defense that operates throughout the Commonwealth of Pennsylvania since 1978.  5-star ratings prove what our firm is all about:  making sure that the best possible outcome for our clients is achieved.  If you find yourself charged with a DUI due to prescription drugs, contact us today.

By

Repetition Compulsion

What is Repetition Compulsion and its Uses in Mitigating Sentences in Child Pornography Cases?

Does history repeat itself?   The simple, as well as sad answer, in the case of many individuals who have been charged with criminal offenses, is YES!!   Many individuals who find themselves entangled in the criminal justice system, whether they are juveniles or adults, have sometimes endured chaotic and tortuous developmental histories replete with emotional, physical and/or sexual mistreatment and abuse.  The impact of these experiences can, and in many cases does, produce lasting and often poorly understood symptoms and behaviors which can lead to allegations of criminal behavior resulting in charges, possible incarceration, and fallout that can negatively affect future employment, standing in the community, relationships with others, as well as the individual’s self-perception.  An important aspect of criminal defense and forensic psychology is to untangle these historical intrusions into normal development and bring these to light in the context of criminal allegations.  It is important for the courts to know the accused as more than a litany of charges and what he/she has been accused of.  

An aspect of the above is the concept of “repetition compulsion”.  The impact of traumatic events has been identified since the late 1800’s, i.e., well over the past 125 years.  Our understanding of repetition phenomena has been developed, revised and expanded so that we now have a much greater understanding of how trauma can have an impact on an individual’s behavior, emotions, and also their physiological and neuroendocrinological make-up. Compulsive behavioral repetition can take place without conscious knowledge or connection made by the individual.  And, very importantly, in a behavioral re-enactment of trauma, the individual may assume a role in which they may again be the victim, or conversely, the victimizer.  Behavioral re-enactment can lead to, or cause, harm to others/violence, self-destructive acts, and also re-victimization or placing oneself in harm’s way.  Often people who have been traumatized return to that which is familiar, i.e., familiar patterns of behavior, even if what they do is painful. A part of what can motivate a re-enactment or repetition of the same or similar behavior is an attempt to remember, integrate and heal from a traumatic experience.  Re-enactments as noted above can stem from, and be evidenced in, a variety of different ways.  It is the maladaptive ways that often come to the attention of others, including the legal authorities.  Our goal as criminal defense lawyers is to bring this out to the court and prosecutors in the proper cases. If possible, use forensic psychologists to examine and elucidate any such occurrences of trauma in our clients so we can educate the legal system to connect our client’s actions to past trauma to their seemingly unfathomable criminal behaviors. 

This is a key concept for lawyers who represent citizens in child pornography cases to understand. Studies have shown that there is a large percentage of people who consume child porn who were victims of sexual abuse themselves. The consumption of child pornography can be a way for victims of sexual abuse to relieve their past victimization and try to overcome it. So, when people are arrested for this for child pornography they should have a thorough workup done and if past abuse is found this should be brought to the attention of the court and prosecutors as a way of mitigating punishment.      

By

Ion Mobility Spectrometry

The Tool of Civil Forfeiture

The detection of trace amounts of chemicals on various surfaces has become increasingly important in several areas of law enforcement. A key laboratory technique applied to help with the detection and identification of these compounds is Ion Mobility Spectrometry (IMS). IMS instruments have been used in a variety of applications including explosive detection, airport security, chemical weapons monitoring and drug detection (2).  One specific use of IMS in Pennsylvania is as a tool in the seizure of US currency accused of being connected to illegal drug transactions.

The analysis begins with sample collection. In the case of drug residues, this will be achieved using some sort of unreactive, uncontaminated swab.  The IMS instrument requires that samples are in the gas phase, which means solid collected on the swab will have to be converted to a gas in order to be analyzed. This is accomplished using heat. Once the sample is in the gas phase it can then be swept into the main chamber of the IMS using a flow of gas, most commonly clean, dry air.




Figure 1: IMS schematic. Source: Smiths Detection (www.smithsdetection.com)

The first step to analysis using these instruments is ionization. This is the process through which drug molecules with no charge becomes charged.  Charged molecules, known as ions, can be either positively or negatively charged.  In IMS, ions are most commonly given a positive charge. This is achieved by passing the sample in the gas phase over a weakly radioactive source, Ni63 in Figure 1 above, that emits particles which collide with the drug molecules to cause ions to form.

The second step in IMS is separation. Once the ions are formed, they flow into a drift tube under an electric field and through a series of focusing rings. Ions will travel at different speeds depending on their shape and size, thereby separating compounds from one another as some move quicker through the tube than others.

The last step is detection. Once the ions are separated in the drift tube, they are collected and strike an electrode.  That signal is amplified and recorded by the operating software. The result, a spectrum, is a plot of ion intensity current vs. drift time in milliseconds (Figure 2).



Figure 2: IMS Detector Output as a Function of Drift Time (2)

Drift time refers to the time it takes the ions to move down the tube and reach the detector. Standards of known drug or explosive material are run on an instrument to calculate the reference drift times. This drift time is stored in a library, and when an unknown sample is run, drift times for the sample can be compared to those in the library to determine the presence of target substances.

IMS is only a presumptive testing technique because drift time is not unique to an individual compound.  Ions of the same shape and/or size may travel at the same speed resulting in their instantaneous detection.  This means the method cannot differentiate between certain sets of compounds.  As a result, IMS must be accompanied by another testing method of higher selectivity to ensure results are accurate. Other more selective methods, such as mass spectrometry, can be used to further support the presumptive identification of compounds identified using IMS.

References:

  1. Smiths Detection Canada. IONSCAN 500DT Operation Manual. May, 2013
  2. Cumeras, R. et al. Review of Ion Mobility Spectrometry. Part 1: Current Instrumentation (2015). Analyst, 140(5), 1376-1390.
  3. Hill, H.H. & Simpson, G. Capabilities and Limitations of Ion Mobility Spectrometry for Field Screening Applications (1997). Field Analytical Chemistry and Technology, 1(3), 119-134.

By Leave a Comment

Protection From Abuse (PFA) Orders in Pennsylvania

People facing criminal charges for assaults alleged to have been committed against family members, spouses, boyfriends, or girlfriends, often find themselves also facing Protection from Abuse petitions. These are often referred to as “PFAs”. They are civil restraining orders that have criminal penalties if violated.

The Protection from Abuse Act defines abuse as physical abuse; a threat that places you in immediate fear of physical injury; or a pattern of conduct such as stalking which places you in immediate fear of physical injury. A PFA can be filed against you by someone who is a family member, spouse, your boyfriend/girlfriend, the parent of your child, your child, your parent, or anyone related to you by blood or marriage.

A PFA being entered against you can cause you to suffer any, and sometimes all,  of the following:

  • Be removed from your home or place of residence.
  • Keep you from your place of work if the person filing it works there as well.
  • Lose your firearms and carry permits for up to three years.
  • Prohibit you from purchasing firearms for up to three years.
  • You will have to pay the costs of the PFA filed against you, and possibly the lawyer fees of the person who filed the petition.
  • Subject to immediate arrest if it is alleged you had any contact with the protected person who filed the PFA against you.
  • Your children could be taken away from you.

There are three types of PFA Orders that can be issued against someone. An Emergency Order can be issued by a Magisterial District Judge during non-business hours when the Court of Common Pleas is closed. An Emergency Order remains in effect until the next business day of the Court of Common Pleas.  An Ex-Parte Temporary Order can be issued by the Court of Common Pleas.  This Order is based solely on the information provided by the person seeking the order, without the accused abuser being present.  A Temporary Order remains in effect until the hearing before the Court of Common Pleas to determine if a Permanent PFA should be issued.  A Permanent PFA Order can last up to three years.  A Permanent PFA Order is only issued by the Court following a hearing which involves testimony by both parties, evidence, and witnesses.

The Pennsylvania State Police keep a registry of all Protection from Abuse orders and will enforce any valid PFA issued in any county. PFA’s are also enforceable in all fifty states.  Local police agencies will also enforce a valid PFA if there is an allegation that the PFA was violated in their jurisdiction.

Violations of a PFA are charged as Petitions for Indirect Criminal Contempt. If you are convicted, or plead guilty, to a violation of any type of PFA Order you will face prison sentences up to six months, supervised probation, and a fine of at least $300 and up to $1,000 for each violation.

By

Landmark Change in How Title IX Violations are Handled

Students accused of sexual misconduct will get stronger due process protections under sweeping federal rules announced on May 6, 2020. Title-IX-Final-Rules This is a very positive thing for students accused of sexual misconduct.

When someone is accused of a crime, they have the right to confront their accusers in court. They have the right to cross-examine witnesses. Hearsay evidence is not allowed. They have a right to an attorney, and they are afforded the presumption of innocence. The burden of proof is on the government and the standard is beyond a reasonable doubt. In a criminal case, the defendant has a right to discovery. Discovery being all of the evidence the government is using against them must be disclosed to the defendant.

In a Title IX Sexual Misconduct Hearing before May 6, 2020, basically none of those rights were afforded to a person accused of sexual misconduct. The 6th Amendment to the Constitution of The United States guaranteed the right to an attorney. The founding fathers of our country felt so strongly about that they put it in The Bill of Rights. Well, college disciplinary boards laughed at that. They gave the accused student a right to an “advocate” but almost every college in the United States refused a student the right to have a lawyer be their advocate. The very group of people trained to represent people accused of misconduct were purposely excluded from participating in the proceedings. At best, some colleges allowed a lawyer to be present at a disciplinary hearing and the only thing they could do is answer their client’s questions. The student had to ask their own questions. Totally ridiculous. However, that is now changed. Students can now hire lawyers to be their advocate and the lawyers are allowed to ask the questions. This is a huge victory.

Among other significant changes in the rules are:

  • The burden of proof remains on the school and not the student accused.
  • Schools must allow equal opportunity for both the accuser and the accused to present fact and expert witnesses.
  • Schools must send both parties copies of the evidence directly related to the investigation and allow them no less than 10 days to inspect, review, and respond to the evidence.
  • Schools must send both parties a copy of the investigative report with at least 10 days to review and respond to that report.
  • Live hearings with cross-examination are required for post-secondary schools
  • The hearing panel must permit each party’s advisor to ask the other party and their witnesses all relevant questions and follow-up questions including those challenging credibility.
  • If either the student accused, their accuser, or their witnesses do not submit to cross-examination at a live hearing the hearing panel must not rely on any statement made by that person and they can not make any inference by that person’s absence.
  • Schools must create audio or audiovisual recordings of the live hearing.

These rules may sound like a no-brainer and of course these rules should be in place. Take it from a lawyer who has represented students in College disciplinary hearings accused of sexual misconduct. These rules are refreshing to have. So called “hearings” in the past were nothing more than long slow findings of violations. Now with these new rules in place hearings will be fairer. However, make no mistake, the people who work for the universities and the hearing officers in these cases, usually university employees, have a vested interest in cracking down on sexual misconduct. A college’s funding can be put in jeopardy if they are not in compliance.

Sexual misconduct allegations should be investigated and fought just the same as if criminal charges were filed. In a lot of cases, sexual misconduct proceedings take place at the same time as criminal charges. Now that the rules allow for legal representation at misconduct hearings, these hearings and the reports generated by the university investigator can be used as a tool to help in the criminal case. So, it is very important if contacted by a college’s office of student conduct to not make any statement and contact a lawyer immediately. Never think you can just explain what happened and it will go away. If anything speaking to the school’s investigator or a police officer could make it worse.