Manchester and Associates

Pennsylvania Criminal & DUI Defense

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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.

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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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How To Expose Bad Blood Tests In Pennsylvania Alcohol DUI Cases

Before I start to go over some of the basic issues in exposing blood tests in Pennsylvania alcohol DUI cases, I want to give you a brief summary of my journey to get to where I am.

I became a lawyer in 2000. My father was a defense lawyer. He represented a lot of people for DUI cases. He was a great lawyer and made a lot of great legal arguments and did well for his clients, but he did not challenge blood test results. Like most lawyers, he was told that they could not be beaten. Unfortunately, most lawyers still think like that. So from 2000 to 2007 I accepted that and did all I could for my clients. Then in 2007, I watched a show about measurement on PBS. That show discussed different measurement instruments and they always kept on talking about the margin of error. Well, the show was scientific, so they called it uncertainty which is the proper term for margin of error. They showed one machine that used lasers to measure things and it had a margin of error of +/- .002 inches. Two-thousandths of an inch. I sat there thinking well if this million-dollar laser machine has a margin of error, well what do blood tests have?

So I requested lab documents and called manufacturers of the machines. Most of the machines had a margin of error of .006 to .008 for the different machines I encountered across the state. These were hospital blood analyzers. For more a more in-depth discussion on just how bad hospital blood tests are read my blog (Why Hospital Blood Tests Are Horrible) (hyperlink) So when I had cases whose blood test results were close to one of the threshold levels (.08, .1, .16) I asked for a tier reduction. If the level was close to .08 I would ask for a dismissal. At first prosecutors and judges were like, “What are you talking about?” So I explained it to them. Some listened and gave me what I asked for. Some did not. The ones that didn’t I took to trial, questioned the lab analyst who explained uncertainty. I won and won and won and then Judges and prosecutors no longer argued with me on that issue. Eventually all of the counties I went to started adopting their lab’s margin of error and gave that benefit to all defendants. Not just my clients. However, I knew there had to be other issues so I went looking.

In 2009 I found my answers. When I joined the National College for DUI Defense (NCDD) I started talking with lawyers from across the country. I started attending seminars, and reading e-mails on the list serve. That is when the flood gates of just how bad some of these test results can be. One type of blood testing machine is called gas chromatography. The government refers to this method of testing as the gold standard. Well, all is not golden. Now the testing method is very good, but humans run the machines. The machines also have some inherent accuracy built into them.

The first place to look for errors is in the blood sample. How was it drawn? Where was it stored? What condition was it in when it arrived at the lab? Was it refrigerated? Many other issues can cause problems at this stage. I once had a client charged with DUI in Tioga County whose blood test results were .313, It was a second offense so the stakes were high if convicted. I retained an expert and I obtained the lab documents for her test. In reviewing the documents, it was obvious that the methanol levels were very high. Methanol can be a byproduct of fermentation. When blood ferments in the blood test tube the fermentation creates alcohol. The alcohol created by fermentation can’t be differentiated from alcohol from drinking. Therefore, fermentation creates a falsely elevated alcohol reading. In the end that case resolved with a general impairment plea because of the evidence of fermentation that my expert and I exposed.

Another problem that can occur with the blood before it is tested is clotting in the tube. I had a DUI case in Indiana County where the blood was a .258. In reviewing the documents from the lab it looked like there were no problems in the testing. However, on the bottom right hand corner of the lab analysts check sheet the analyst noted that he had to sonicate the blood tube. He had to do that because the blood had clotted. When blood clots it will falsely elevate the blood test results. That case also resolved in a plea to general impairment saving my client 85 days in jail and an additional 4.5 years of supervision.

Both of those cases involved high blood alcohol contents to which most prosecutors and defense lawyers think that the defendant must be guilty of having a high BAC. Thee data showed this was not true. Then there can be issues with the testing itself. One common issue with gas chromatographic testing is when alcohol from a previous sample stays in the testing system and comes out in other samples. This is called carryover. When carryover happens the alcohol content will be falsely elevated. When carryover happens it is very hard to tell it happened. One way to catch this issue is by looking at blanks in the testing run. Blanks are put in test batches to catch carryover. Since there is nothing in the blank, when alcohol appears that shows carryover. I have found this issue in multiple cases ad used this evidence to obtain good outcomes in trials and in negotiations.

There are many things that need to be looked into when defending Pennsylvania DUI cases. Since the blood test is one of the most crucial pieces of evidence in a DUI case it is the first place that should be scrutinized thoroughly. As my examples of cases stated earlier shows, blood test cases can be defended.

Filed Under: DUI

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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.