Delayed Driver’s License Suspensions

roadsignWhen someone is convicted of a DUI in Pennsylvania, either at trial or through a plea, their Pennsylvania driving privilege is suspended for a set period of time. Judges have no discretion in this suspension. Neither does PennDOT, the agency that actually imposes the suspension.

What is supposed to happen is that a judge imposes a sentence and the Clerk of Court prepares a form, identified as DL-21, that is sent to PennDOT informing the agency of the conviction. PennDOT then imposes the required suspension.

That is how it is supposed to work. Like all machines built by humans, Something Went Wrong.

The Clerk of Courts is the official charged with maintaining the records of all criminal proceedings in a county. In York County, that job has been held by Don O’Shell for some time. He is, by most accounts, a decent guy. He did not, unfortunately, run a very tight office for most of the last decade. Consequently, from at least 2004 through 2009, those DL-21 forms did not get filled out and sent off to PennDOT. Until 2014. When O’Shell sent in at least 5,000 of them.

PennDOT, being the dutiful bureaucracy it is, imposed the appropriate license suspensions.

Hilarity ensued. People sued. The Commonwealth Court rejected a class-action style suit. Eventually, a case made it through the usual channels. PennDOT argued they did nothing wrong, and that a screwup at the Clerk of Courts does not prevent the agency imposing a suspension a decade after the fact.

The trial court agreed. In spite of everyone who has children or pets knowing you cannot delay punishment that long and expect it to have any rehabilitative effect, this wasn’t PennDOT’s screwup, and therefore the suspensions stood.

Today, the Commonwealth Court reversed that decision in at least one case: Gingrich v. Comm. of PA, 78 C.D. 2015 (PDF). This will likely guide the courts going forward.

Up until now, a driver had to show prejudice and delay on the part of PennDOT. Other causes of delay, including what happened in York (and Erie, but that’s a story for another day), would merit no relief. The new rule, announced in Gingrich, is that a driver can obtain relief if the conviction is not reported for an “extraordinary” length of time. The Commonwealth Court also held that the driver must show a lack of additional violations for a “significant” number of years, and actual prejudice. As courts are wont to do, the terms “extraordinary” and “significant” remain undefined. Presumably, a similar 10-year delay would qualify.

In summary, there was an easy fix for this. Equity and Justice demanded one thing. Your Government decided to take another route.

It remains to be seen if PennDOT will appeal this to the PA Supreme Court. I’m not holding my breath on them letting this go.

Which is all by way of saying you don’t have to be an asshole to work for PennDOT, but they seem to enjoy it.

Winning the Peace in Custody

A problem many of my custody clients struggle with is what to do when the litigation is over. We’ve amassed volumes of material about the other side, fortified our own position with evidence, exhibits, and witnesses to show how we meet the needs of the children better than the other parent possibly could. And then it ends, either in a negotiated outcome of an order and decree from a judge. But it is over and time to get back to parenting.

Returning to peacetime is difficult. In almost all cases, the once-litigants are now called upon to co-parent. Where once they were guarded with information for fear of showing any weakness, they’re now expected to cooperate and be open with each other. To say this is a difficult transition is an understatement.

I firmly believe we should have our custody clients attend post-litigation counseling. We often hear about how traumatic divorce and custody litigation is on children, but it is just as harmful to the parents.

The parents who manage to leave the war behind are the ones who win the peace, and their children are better for it. But we aren’t concerned with that. Not as attorneys, not as judges, and not as the courts. We need to do better. The adversarial process is a terrible way to deal with raising children.

This entry originally appeared on my private blog.

Are Fake Facebook Profiles Unethical?

It is unethical for an attorney to use Facebook to deceive someone. That’s the short version of the lesson to be learned from the case in which the Drug Enforcement Agency just settled a lawsuit. The DEA concocted a scheme in which they usurped a woman’s identity and posted on Facebook as her for several months in an effort to catch other drug offenders. It cost them (or us, the public) $134,000.

In a statement released by U.S. Attorney for the Northern District of New York Richard Hartunian, he said:

This settlement demonstrates that the government is mindful of its obligation to ensure the rights of third parties are not infringed upon in the course of its efforts to bring those who commit federal crimes to justice.

It also takes into account emerging personal privacy concerns in the age of social media, and represents a fair resolution of plaintiff’s claims.

If a Pennsylvania attorney were to take part in a scheme like this, they would face scrutiny and likely discipline from the Disciplinary Board of the Supreme Court of Pennsylvania, the body that oversees all attorneys licensed to practice in the Commonwealth. In an ethics opinion from the Philadelphia Bar Association in 2009 (link opens a PDF) that organization addressed an inquiry into the “ethical propriety of attorney gaining access to MySpace and FaceBook pages by using third party to make request to page owner.” The Phila. Bar Association concluded that such an action would violate several Rules of Professional Responsibilty.

In a 2014 formal opinion, the Pennsylvania Bar Association Committee on Legal Ethics released its Ethical Obligations for Attorneys Using Social Media (PDF). While only advisory, and therefore not binding on the PA Disciplinary Board, it does provide guidance on best practices for attorneys who engage with social media. As with most of the ethical rules, it boils down to “if you have to ask, it is probably a violation.”

An attorney who violates their ethical responsibilities may face sanctions ranging from an informal admonishment and through a suspension of their license to practice. In particularly egregious cases, an attorney may be disbarred, or banned from the practice of law entirely.

Let’s Be Cops – Impersonation of a Public Servant

Lets Be CopsLet’s Be Cops opens this week. The premise is simple: Our Heroes dress up as cops for a costume party. Their clean looks and winning personalities convince the neighborhood that these guys are the real deal. Intoxicated by being treated like real cops, they begin to one-up each other. Their hijinks include: buying a used Police Interceptor on eBay; responding to police calls they hear over the radio; and, presumably, arresting people. As expected, hilarity ensues.

What if you did this in real life?

In a word, “don’t.” If you need a more verbose explanation, read on:

In Pennsylvania, Impersonation of a Public Servant is a Misdemeanor of the Second Degree. This offense carries a maximum penalty of two years incarceration and a $5,000 fine. The standard range sentence for someone with no prior record is at least probation. Due to the nature of the offense, however, you’d be lucky to get a sentence at the top of the aggravated range, or three months. If you went as far as the actors in the movie seem to go, you would be charged with a raft of other offenses and could spend years in state prison.

Our Heroes also appear to commit acts of vandalism, false imprisonment, and theft. That’s just in the previews.

Impersonation of a law enforcement officer is a serious offense. This stuff plays well in Hollywood and on the screen, but in real life it will land you in jail. If you do something like this, you should call an experienced Pennsylvania criminal defense attorney immediately.

The Felony Murder Rule

Prison BarsHow can someone end up in jail for the rest of his life just for loaning his car to a friend?

Only in the United States of America –  and there, not even in every state – does the law allow the Government to hold anyone involved in a felony responsible for a murder committed by one of his co-conspirators. In the case of Ryan Holle, one of his co-conspirators killed someone during the commission of a felony, robbery. Ryan loaned his vehicle to a friend that night, and his ride ended up being the getaway car.

New York Times: Serving Life for Providing Car to Killers

Ryan was offered a 10-year sentence. He knew he was innocent and went to trial. He was convicted and sentenced to life without parole.

In Pennsylvania, the Felony Murder Rule is codified at 18 Pa.C.S.A. §2502(b), and states that:

[c]riminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.

It then defines “perpetration of a felony” at §2502(d):

The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.

As you can see, Pennsylvania has a rather narrow version of the Felony Murder Rule. It is still conceivable, however, that a future person in Ryan Holle’s position could find himself charged with Murder under similar circumstances.

In my view, the Felony Murder Rule is incompatible with justice and should be discarded as inimical to a system of justice worthy of an advanced civilization.

If you are charged with a crime and have co-defendants, you need an experienced criminal defense attorney on your side. Your co-defendants already involved you in their crime. Don’t let them take you down with them. Call the Law Office of Justin P. Miller today for a free consultation.

Wife Attempts to Frame Husband with Child Pornography

handcuffs-computerAn Indiana County woman has been charged with putting child pornography on a computer in an unsuccessful effort to frame her estranged husband. Fortunately for the husband, investigators were able to tell that the images had been loaded onto the computer after he had left the residence.

These sort of poor choices and short-sighted, vindictive behaviors on the part of the now-defendant are why she should have retained an experienced family law attorney early on. If she was having problems with her estranged husband, she had a number of tools available to address those issues. An attorney could have helped her access those resources.

Now it looks like she is more in need of an experienced criminal defense attorney. The charges she faces are Felonies and carry the potential for significant jail time. Because possession of child pornography is considered to be “feeding the market” and creating demand, it will not matter that she was not a pedophile herself or that she had not downloaded the images for her own *ahem* use. The mere possession of such image files is enough to get a conviction.

What will likely happen to her?

If this is her first offense, the Sexual Abuse of Children charge is graded as a Felony of the Third Degree, meaning it carries a statutory maximum penalty of up to seven years incarceration and a fine of up to $15,000.

In addition, Sexual Abuse of Children is a 15-year registration offense under the PA Sex Offender Registration and Notification Act (“SORNA”). SORNA is an invasive, debilitating, and potentially unconstitutional law that requires covered individuals to register every aspect of their lives with the Pennsylvania State Police. Every type of information is gathered, from home and school addresses all the way through online identities and aliases and vehicles owned or operated by the registrant. If she ins convicted or pleads guilty to this offense, she will be paying for it long after any prison term or probation sentence is served.

Sexual-related offenses are some of the most serious and harshly treated offenses in the criminal justice system. If you or a loved one find yourself charged with or even suspected of such a crime, you owe it to yourselves to contact an experienced criminal defense attorney immediately.

Two DUIs in One Night?

duiHow can someone possibly get two DUIs in one night? It happens more often than you might expect.

Most of us know that alcohol reduces inhibitions. We usually think of this in terms of a drunk being overly affectionate or saying things he wouldn’t say sober. We also know this explains why a person who knows better will keep drinking when he is already too drunk. But other inhibitions are reduced, too, including knowing not to drive after you’ve been detained, arrested, stuck, photographed, fingerprinted, processed, and returned home to sleep it off.

No night in the drunk tank?

Many people are surprised to learn that not all people arrested for DUI are tossed in a drunk tank for the night. Far from it: the vast majority of DUI suspects are released that night, either to a friend or family member, to a cab driver, or – if the officer is feeling generous or it is on his way – are given a ride back home. The reason for this is that although someone may be “arrested” for DUI that night, he isn’t actually charged for the offense until several days, or even weeks or months later. If lab tests beyond what the local hospital could do were required, it may be even longer before charges are filed.

Years ago, there was a rule that DUI charges had to be filed within ten days of the incident. That rule has been set aside, and the actual statute of limitations is now the standard two years.

In the rare instance where someone is incarcerated for the night, it is because of some reason other than the DUI itself. He may be from out of state, have no permanent residence, or have additional charges against him. He may be in the country illegally and is being held at the behest of Immigration and Customs Enforcement. To be held in jail, there must be a “commitment,” meaning he must have been given the opportunity to post bail to be released and, failing to post that bail amount, is incarcerated in lieu of bail. A Magisterial District Judge sets bail, and one is on duty all night for just such cases.

Two DUIs in One Night?

As I explained above, this is not that uncommon. I myself have represented at least three individuals over the years with two (or more!) DUIs in one day. It is always a tragic story of overindulgence and alcoholism. The best outcome for this sort of case is intensive, prolonged treatment of the underlying disease of alcoholism. Unfortunately, our courts and justice systems are traditionally ill-equipped to treat people with an illness like alcoholism. In recent years, however, there has been an increasing understanding of the need for treatment in addition to punishment. This has taken the form of specific DUI Courts that help individuals with several DUI offenses get and stay clean and sober. There are also private treatment programs that the courts will increasingly recognize as suitable for “time credit” toward any jail sentences.

If you find yourself charged with a DUI, you need an experienced DUI defense attorney on your side. Pick someone who knows what options are available and can help you get the help you need. Attorney Justin P. Miller knows what options are out there and can assist you in your time of need. Contact him today for a free consultation.

How did the TASER get its name?

TASER X3What does a TASER have to do with early 20th century juvenile fiction? The name itself, for a start.

Inventor and erstwhile arms dealer Jack Cover came up with a new, more humane way for police and others to subdue assailants and offenders. The TASER was meant to be a kinder, gentler weapon, capable of incapacitating without doing any permanent damage. Much like Joseph-Ignace Guillotin before him, the invention caught on, often to ill effect.

While searching for a name for his device, he knew he wanted something futuristic sounding, with hard, sharp sounds. No soft H’s or C’s here, no he wanted R’s and sharp S’s and the sharpest letter of them all: T.

Enter a childhood favorite of Cover’s: the Tom Swift series of juvenile adventure novels.

Tom SwiftIn volume 10, “Daring Adventures in Elephant Land,” Tom and friends venture to darkest Africa in search of big game. As in most Tom Swift adventures, the hero is resourceful and often invents things. On this particular trip, he invented an airship and a weapon. The weapon was a rifle that shoot bolts of electricity powerful enough to kill an elephant, not to mention scores of native Africans, but I digress…

Cover remembered this remarkable weapon. Thomas Swift’s Electric Rifle, an alternate title for the book, forms the acronym TASER, with a middle initial added for aesthetic considerations.

Thus was born Thomas A. Swift’s Electric Rifle, The TASER for short.

The name isn’t cute and cuddly, and neither is the experience of being shot by one. If you do find yourself on the receiving end of a TASER, you should contact an experienced criminal defense lawyer as soon as possible. In all likelihood, if the police Taser you, they are also going to be charging you with some sort of crime. It is better to get out ahead of any charges rather than waiting until you get some papers in the mail with a prompt court date. Defense attorney Justin P. Miller can help you understand your rights and defend you against your charges.

Calling the Police on Yourself for a DUI

A DUI can happen to almost anyone who makes a series of poor decisions. For instance, what happens if you spend an evening drinking, drive home, park in front of your house, and find yourself too intoxicated to get out of your vehicle? For most people, you’d spend an uncomfortable night sleeping it off in the front seat. For a Billlings, Montana woman last week, things ended a little differently.

Carol Frances Omeara, 55, chose to reach out for help. For her, unfortunately, help took the form of a call to 911 and a police officer “helping” her out of her car – and into his. Charged with her fourth DUI, Ms. Omeara had a BAC of .311 percent, nearly four times the legal limit of 0.08 percent!

Even though she was in a parked car – which in and of itself does not get you out of a DUI charge – Omeara admitted to the 911 operator and to the officer that she had been drinking and subsequently driving. This alone would likely be enough to convict her if she were in Pennsylvania.

DUI

This sign does not lie

If Omeara had been driving in Pennsylvania, she would likely be charged with a “fourth or subsequent” DUI offense, based on her three prior DUI cases, provided she pled guilty or was convicted within the past ten years. A fourth offense DUI carries some hefty mandatory penalties: a mandatory minimum 1 year prison sentence; a minimum $1,500 fine (and up to $10,000 if the judge determines the case warrants it); an 18-month driver license suspension; a mandatory ignition interlock system for one year upon reacquiring driving privileges; and extensive drug and/or alcohol counseling and treatment.

If you find yourself stopped for a Pennsylvania DUI, you should speak with an experienced Pennsylvania DUI attorney immediately. You may not receive your charges in the mail for weeks or even months, and you will likely be scheduled for court within days of the day you get the papers in the mail. By then, your memory will not be as clear and you won’t be able to provide your attorney with the details that may help you avoid the charge. Remember: the police are trained to remember and record information. They will be certain in what they remember. You should want your DUI attorney to have the same advantage.

What is a Meth Lab?

The RVA recent article in the local fishwrap raised alarms around our community. “State College man arrested, charged with running meth lab in Park Forest house,” screamed the headline! Over the past several days, a number of people have asked me about this so-called meth lab. For some reason, they all think I know a little something about drugs, which I do. As a criminal defense attorney who regularly defends drug users, dealers, and manufacturers, I have a professional responsibility to understand how this whole business works.

Around here – here being Centre county – meth has not been a major problem. We are more of a marijuana and cocaine town, with heroin making recent inroads via Philadelphia and New York City. So when the media starts talking about a meth lab in a house in one of our nicer residential neighborhoods, the community goes into a minor tizzy.

So what did he have?

From what I can glean from media reports, he was using a two-liter soda bottle in a one-pot method often referred to as “shake and bake.” The idea is to make a small amount of methamphetamine from cold medicine and a couple of pretty nasty household chemicals and other items (you can go elsewhere for the ingredients and step-by-step instructions; I’m not in the business of educating budding drug manufacturers) that anyone with a decent background in chemistry can figure out how to mix. (Contrary to popular belief, you don’t have to be a Walter White to figure out how to make meth. Case in point: Meth heads can do it.)

The police don’t help matters much. Their term for this device is “mobile meth lab.” To me, with my education, knowledge, and experience, that name connotes a full chemistry rig in the back of a van (or perhaps in a motor home?), not one of these self-serve batches.

Collateral Consequences – for the Homeowner!

Here’s the part no one has mentioned yet: the owners of the residence, who seem to have reported the lab themselves, are in for a surprise when and if they ever try to sell their house. They are now obligated to disclose that a “meth lab” was operated on the premises. Arguably this was not a meth lab per se, but any buyer who searches the internet for this address will eventually find one of the inflammatory articles written about this case and that, at the very least, will delay their closing on the sale.

They’ve also just nudged down property values in their neighborhood.

No one wins here

The homeowners look clueless. The cops look over-zealous. The newspaper looks yellow. And the guy with the “mobile meth lab” is looking at some serious charges. Specifically, he has been charged with possession of precursor chemicals (Ungraded Felony; up to seven years of incarceration and a fine of up to $15,000), possession of drug paraphernalia (Ungraded Misdemeanor; up to one year of incarceration and a fine of up to $2,500), and illegal dumping of methamphetamine waste (Felony 3; up to seven years of incarceration and a fine of up to $15,000).