Manchester and Associates

Pennsylvania Criminal & DUI Defense

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How To Find The Best DUI Lawyer In Pennsylvania

Part One of this blog: Best DUI Lawyer In Pennsylvania

In my previous blog, I discussed the four types of lawyers that defend DUI cases in Pennsylvania. I said that you at least need a lawyer in the third category, but preferably a lawyer in the fourth category. They are out there.

Category three are DUI defense lawyers in Pennsylvania who have specialized training in DUIs. Such as field sobriety testing and blood testing. Category four DUI defense lawyers have training in field sobriety testing and blood testing and who also teach other lawyers both. These are the ones to get.

How can you find these lawyers? One way is Google. Look at the information lawyers provide to you on their websites. How long have they been practicing? There is no substitute for experience. Defending DUI charges in Pennsylvania is something that the more cases a lawyer works on the better they get at it. What training does the lawyer have? Do they say if they have Standardized Field Sobriety Training? Did they attend Standardized Field Sobriety Training School? Do they have training in Drug Recognition Exams, that is the fancy drug DUI training some police officers receive? Does the lawyer have any training in blood testing? Do they have training in the pharmacology of drugs and alcohol? Do they have training in gas chromatography (GC)? GC is the most common method used in forensic labs. If they had had GC training that means they would have experience using the same machines that likely tested your blood.  

Here is the question that separates the good DUI defense lawyers in Pennsylvania from the great ones. Does the lawyer list that he has ever lectured to other lawyers on field sobriety testing, blood testing, or the pharmacology of drugs and alcohol? Those lawyers that have taught other lawyers are who you really want. They are the elite of the elite.

Some other questions to ask lawyers when deciding who you want to represent you for your DUI charges are: How often do, they go to trial? Ask them for case examples of successes in trials and in negotiations. One question to avoid is to ask what is your win rate? Trials are complex and it is not a win or lose proposition. The facts of a case dictate what a win is. Sometimes a win is getting a third offense DUI at the highest tier of punishment down to the second tier of punishment. Sometimes it is getting a drug DUI punished at the highest level changed to a general impairment punished at the lowest level. Sometimes defendants are impaired, you can see that on the police video, but a lawyer goes to trial to challenge the blood test to get a lesser charge. Then there are cases where the defendant looks sober and there are issues with the blood test, so a lawyer goes to trial to beat the whole case. The only honest way to answer the question of what your win rate is is the way I just answered it. If a lawyer says I do very well, or I win X percentage of the time say thank you and walk out.

Ask people you know who they recommend. If you know a lawyer, ask them who they would recommend for a DUI case. Ask people who work at the courthouse. Ask your friends for recommendations. Even after getting these recommendations from friends, this is only a good starting point you still must do your homework.

Lawyers who know what they are doing in DUI defense are out there. It just takes some time to find the right ones. It is also a search that must be done as a person’s freedom and many other collateral consequences are on the line. As I said there is no one best DUI lawyer in Pennsylvania. There is a small group of them. I believe these questions and where to look for them will help you find one of them. Good luck to you.

BRIAN V. MANCHESTER, ESQ.

Filed Under: DUI

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Best DUI Lawyer In Pennsylvania

When you or someone you know is arrested for DUI in Pennsylvania, you deserve and should get the best DUI lawyer possible. That is not the question. When a person’s freedom, driving privileges, job, professional license, gun rights, and many other things are on the line everyone wants and deserves the best. The question is how does someone accused of DUI in Pennsylvania find the best DUI lawyer in Pennsylvania?

There is no one best person practicing DUI defense in Pennsylvania, for that matter, in the Country. Having been a criminal defense lawyer for over twenty years, I have seen four categories of lawyers practicing DUI defense the General Practitioner, the Criminal Defense, the DUI Lawyer, the Teaching DUI Specialist.  The first category is General Practitioners. These are attorneys who advertise that they handle DUI cases, family law, wills, estates, landlord-tenant, and lots of other things on their websites, business cards, and ads. They treat DUI cases as commodities and aside from the occasional suppression motion filing, they generally plead their clients guilty or get them an ARD without analyzing the case. They think that blood test results cannot be challenged, or if they do, they do not know how to do it. Their idea of a good resolution is obtaining house arrest or the mandatory minimums.

Since I am in court often, I get to see many guilty pleas and sentencings. Sometimes when I am watching other cases I cringe when I hear the DA read the facts of a case. One time I watched a fellow citizen being sentenced to a second offense DUI with a BAC of .164. That person now has a first-degree misdemeanor, did a minimum of 90 days in jail with a maximum of 5 years. That person lost their license for 18 months and their right to ever own a firearm. That result drove me crazy and continues to do so. I knew the lab that tested that man’s blood, even assuming the blood test was done right, that lab’s uncertainty (margin of error) at that level was at least .010. In fact, all the forensic labs in Pennsylvania have an uncertainty (margin of error) in their test results that would have put this man below .16. This is easy defense in a DUI case, but one that is missed quite often by lawyers who treat DUI casually. I see similar things like this all the time. It is a travesty to people when it happens to them. I am still surprised when some lawyers do not even know basics like the correct license suspension for their clients. If you do not know the law, you should not be practicing in that area of law.

I was once in court and watched a man be sentenced to a felony aggravated assault while DUI where it was alleged, that he was taking bath salts, particularly alpha-pvp. Now admittedly I do not know all of the facts of the case, but I do know that alpha-pvp test results are inadmissible in Pennsylvania because there is no minimum detection level set by the PA Department of health as outlined in 75 Pa.C.S.A. 1547 (C)(4). As I said, I did not know all the facts in that particular case, but I did know the lawyer handling the case did not file motions to suppress the blood test results. This can be easily I looked up in the statewide docketing system. No matter what the facts are in a DUI case, if you can keep the blood test results out of court, this gives you incredible leverage to get a better outcome for your case.

The second type of lawyers are lawyers who do nothing but criminal law and handle DUI cases, but who do not have any advanced training in DUI defense. Training such as field sobriety training and scientific training in blood testing. While going to a lawyer who does nothing but criminal cases is better than the general practitioner, it is still not much better. A lawyer who only handles criminal cases is generally more knowledgeable of new decisions in DUI cases and should be able to find more legal angles to defend people charged with DUI in Pennsylvania but that still is not enough. Police pulling over people illegally and messing up when they ask for blood and other legal errors do not happen often. However, this does happen, just not in a lot of cases. The facts in an average case are there is an equipment violation or some bad driving. The motorist is pulled over. The cop asks some brief questions, then guesses that the driver is impaired. The cop forces the person to get out of the car to do tests that have never been scientifically certified to detect impairment. Then the cop takes the driver in for a blood or breath test. Just knowing the law is not enough in these cases.

The third category of lawyers who defend people in Pennsylvania charged with DUI are the lawyers who concentrate in DUI defense and get training in how to defend these cases. Training consisting of field sobriety training. Both practitioner and instructor training in the exact same courses that the police take. That and advanced courses in blood testing and defense. These are the lawyers someone charged with a DUI should begin their search looking for. They have the training necessary to challenge field sobriety testing and blood or breath testing. These lawyers are fully competent to handle DUI cases.

When looking for the best DUI lawyer in PA there is the fourth category. These are the defense lawyers who teach other lawyers. They are not only trained in criminal defense techniques. They have the specialized training in field sobriety testing and blood and breath testing. What truly sets them apart is they teach what they know to other lawyers. They speak across the state on DUI defense topics. They know how to challenge not just the law but how to use their field sobriety and scientific training to teach other lawyers how to properly challenge and defend DUI cases in Pennsylvania. The truly elite attorneys in DUI Defense in this category also speak across the country. So how does one find lawyers in the third, and especially the fourth categories? I will cover that in my next blog. How to Find the Best DUI Lawyer in Pennsylvania.

BRIAN V. MANCHESTER, ESQ.

Filed Under: DUI

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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.