Attorneys Blog

Year: 2019

Criminal Law

Criminal Law David M. Manilla

Having a criminal record can interfere with many opportunities, including employment, housing, and education. A prior conviction can also be used against the defendant in a future criminal prosecution, and prevent an individual from traveling outside the United States. Foreign countries can learn about a traveler’s criminal record in a matter of minutes. Because a criminal record can impact so many aspects of an individual’s life, it’s critical to aggressively fight a prosecution.

WHAT IS A CRIME?
A crime is any action that violates the law. A criminal conviction can be punished with fines, imprisonment, and other penalties. The repercussions increase with the seriousness of the crime. Criminal offenses are divided into three categories: summary offenses, misdemeanors and felonies, all of which have a possibility of incarceration.

Summary offenses include most traffic infractions and offenses such as disorderly conduct and first-offense shoplifting. Summary charges are brought against an individual through a citation from police or by a summons from a district justice to appear and answer charges.

If the defendant requests a hearing, it will be held before a district justice. If the hearing ends with a guilty verdict and a fine or prison sentence is imposed, the defendant can appeal the decision to the Court of Common Pleas in the county where the charge was filed. The appeal must be timely or the opportunity to appeal will be lost.

Another option for handling summary offenses has been developed. An accelerated rehabilitative disposition, or “ARD,” is designed to rehabilitate as well as punish. Anyone charged with a summary offense should discuss the possibility of ARD with a lawyer prior to any hearing on the matter.

Misdemeanors and felonies are far more serious crimes than summary offenses. Misdemeanors include offenses such as driving under the influence of alcohol or drugs, simple assault, and some types of theft. Charges such as robbery, burglary, rape and murder are more serious crimes charged as felonies.

Defendants charged with misdemeanors or felonies will have a preliminary hearing before a district justice. This is not a trial. The district justice determines only whether the Commonwealth has made a case that deserves to be tried in court. If the district justice orders the defendant to stand trial, the proceeding will occur in the Common Pleas Court of the county where the charges are filed.

WHAT HAPPENS DURING A STOP BY A POLICE OFFICER?
Police don’t need to make an arrest to ask brief questions or ask individuals for identification. They also can issue a citation for a summary offense. If an officer reads the individual his or her rights or takes an individual into custody, an arrest has been made.

Resisting arrest is a separate criminal offense. Police can use reasonable force if necessary to make an arrest. Under no circumstances should anyone resist arrest or interfere in the arrest of another individual. People who suspect their rights have been violated should consult with an attorney as quickly as possible.

Many people mistakenly believe that they must receive a Miranda warning prior to being placed under arrest. However, no Miranda warning is required unless an individual is being questioned

WHEN CAN THE POLICE CONDUCT A SEARCH?
Not every police search requires a warrant. If someone gives permission to search them or their property, police don’t need a warrant, and any evidence found can be used in court. Therefore, it is wise not to consent to a warrantless search.

Police do not need a warrant or consent to search someone who has been arrested. Prior to or after an arrest, police can also conduct a “pat-down” without a warrant or consent to check for weapons. Police are also permitted to search the immediate area.

Police also don’t need a warrant or consent if so-called “exigent” circumstances exist. Exigent circumstances arise when police face what reasonably appears to be an emergency which requires an immediate search. This can occur if valuable evidence would otherwise be lost or damaged, or when a criminal suspect could escape before a warrant can be obtained.

Although there are many instances when police can conduct a search without a warrant, some warrantless searches are unlawful. Anyone who feels that police have improperly searched them or their property should discuss the matter with a lawyer.

WHAT IF AN INDIVIDUAL IS CHARGED WITH A CRIME?
Criminal suspects have certain rights. The most critical of these are the right to remain silent and the right to have an attorney present at all stages of the proceedings. Even criminal suspects who haven’t been charged with a crime are protected by these rights.

The most important things to remember when charged with a crime or under investigation are:

Know your rights.
Be courteous and respectful to the police and courts.
Do not give up the right to a preliminary hearing unless a lawyer advises to do so.
Listen to your attorney. If the lawyer advises not to discuss the case with anyone, follow the advice.
Arrange bail as soon as possible. Bail can be posted using a bondsman, cash, or real estate. Registered bondsmen may charge for posting bail. However, if cash or real estate is used, complied with all appearances and the trial is completed, the money will be returned and the real estate will no longer be tied to the case.
A blood, breath, or urine will be required of anyone arrested for driving under the influence of alcohol or drugs. Drivers who refuse to submit to a chemical test after a DUI / DWI arrest will have their licenses suspended for one year and risk incarceration. Police must advise suspected drunk drivers that they have no right to have a lawyer present or to discuss the request for a test with a lawyer.

WHAT KINDS OF PROBLEMS CAN CRIMINAL CHARGES CAUSE?

Having a criminal record – even a relatively minor first offense –can prevent a person from getting or keeping a job. Prior criminal offenses can be used against individuals if they are charged with a later crime. For example, if a person is convicted of shoplifting, a second or subsequent shoplifting offense will be charged as a misdemeanor, not a summary offense. .

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Drinking & Boating

Blog, Blood Alcohol David M. Manilla

How will the law enforcement officer test me to determine if I am under the influence?

A waterways conservation officer, having reasonable suspicion to believe a person is operating or in actual physical control of the movement of a watercraft while under the influence of alcohol, may request that person to submit to a preliminary breath test. This test may be administered before arrest. Other field sobriety tests have been developed and are approved for this purpose.

Does the law enforcement officer require my permission to test my blood alcohol content?

Any person who operates or is in actual physical control of the movement of the watercraft upon, in or through the waters of the Commonwealth shall be determined to have given consent to one or more chemical tests or breath, blood, or urine for the purpose of the determining the alcohol content of blood or the presence of a controlled substance. The waterways conservation officer must have reasonable grounds to believe that the person has been operating or has been in actual physical control of the movement of the watercraft. If any person placed under arrest for operating a watercraft under the influence of alcohol or controlled substance is requested to submit to chemical testing and refuses, the test shall not be conducted. But the Commonwealth shall suspend the boating privileges of the person for a period of 12 months. In addition to suspending boating privileges for one year, the fact that the defendant refused to submit to chemical testing may be introduced in evidence along with the other testimony concerning the circumstances of the refusal.

What happens if I am caught?

The penalties for operation of a watercraft while under the influence of alcohol or a controlled substance could lead to a criminal record and a fine of not less than $500.00 nor more than $7,500.00, or imprisonment not exceeding two years, or both, plus the loss of boating privileges for a period of 12 months. Homicide by watercraft while under the influence carries a fine of not less than $2,500.00 nor exceeding $15,000.00, and imprisonment not exceeding seven years, or both. In addition, to the offenses described above, operating a watercraft under the influence may also violate other laws. The may include prohibitions against reckless or negligent operation of boats, public drunkenness, disorderly conduct and underage drinking.

May I drink in my boat?
This answer depends on several variables including where you boat, how much you drink and other laws that pertain to alcohol. Check with the local authorities before bringing alcohol into an area. In some places it is legal to drink on a boat. However, laws such as public drunkenness, disorderly conduct and underage drinking apply both to the operator and the passengers. It is illegal to operate a watercraft on all waters of the Commonwealth while under the influence of alcohol or a controlled substance.

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FEDERAL DRIVING UNDER THE INFLUENCE VIOLATIONS

Federal DUI David M. Manilla

Laws of State adopted areas within Federal jurisdiction
(a) Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, or on, above, or below any portion of the territorial sea of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.

(b)(1) Subject to paragraph (2) and for purposes of subsection (a) of this section, that which may or shall be imposed through judicial or administrative action under the law of a State, territory, possession, or district, for a conviction for operating a motor vehicle under the
influence of a drug or alcohol, shall be considered to be a punishment provided by that law. Any limitation on the right or privilege to operate a motor vehicle imposed under this subsection shall apply only to the special maritime and territorial jurisdiction of the United States.

(2)(A) In addition to any term of imprisonment provided for operating a motor vehicle under the influence of drug or alcohol impose under law of a State, territory, possession, or district, the punishment for such an offense under this section shall include an additional term of imprisonment of not more than one (1) year, or if serious bodily injury of a minor is caused, not more than ten (10) years, and an additional fine under this title, or both if –

(i) a minor (other than the offender) was present in the motor vehicle when offense was committed; and
(ii) the law of the State, territory, possession, or district in which the offense occurred does not provide an additional term of imprisonment under the circumstances described in clause (i).

(B) For the purpose of subparagraph (A), the term “minor” means a person less than 18 years of age.

(c) Whenever any waters of the territorial sea of the Unites States lie outside the territory of any State, Commonwealth, territory, possession, or district, such waters (including the airspace above and the seabed and subsoil below, and artificial islands and fixed structures
erected thereon) shall be deemed, for purposes of subsection (a), to lie within the area of the State, Commonwealth, territory, possession, or district that it would lie within if the boundaries of such State, Commonwealth, territory, possession, or district were extended seaward to the outer limit of the territorial sea of the Unites States.

Implied consent for certain tests

(a) Consent. – Whoever operates a motor vehicle in special maritime and territorial jurisdiction of the Unites States consents thereby to a chemical test or tests of such person’s blood, breath, or urine, if arrested for any offense arising from such person’s driving while under the influence of a drug or alcohol in such jurisdiction. The test or tests shall be administered upon the request of the police officer having reasonable grounds to believe the person arrested to have been driving a motor vehicle upon special maritime and territorial jurisdiction of the Unites States while under the influence of drugs or alcohol in violation of the State, territory, possession, or district.

(b) Effect of Refusal. – Whoever, having consented to a test or tests by reason of subsection (a), refuses to submit to such a test or tests, after having first been advised of the consequences of such a refusal, shall be denied the privilege of operating a motor vehicle upon special maritime and territorial jurisdiction of the United States during the period of a year commencing on the date of the arrest upon which such test or tests was refused, and such refusal may be admitted into evidence in any case arising from such person’s driving while under the influence of a drug or alcohol in such jurisdiction. Any person who operates a motor vehicle in special maritime and territorial jurisdiction of the United States after having been denied such privilege under this subsection shall be treated for the purposes of any civil or, criminal proceedings arising out of such operation as operating such vehicle without a license to do so.

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