Young Person’s Guide: Central Court and the Preliminary Hearing

The second stop in the journey through the court system is Central Court, where the accused is entitled to a Preliminary Hearing.

The Preliminary Hearing

The Preliminary Hearing serves a very important gatekeeping function. A Magisterial District Judge, the lowest elected judge in the counties, conducts the hearing. The standard of proof is prima facie – on its face – and only requires a preponderance (meaning more likely than not) of evidence to reach. This is your first opportunity to test the evidence against you. Most prosecutors will expect you to waive your hearing, but you are not required to.

At a Preliminary Hearing, the prosecutor will call witnesses to testify and present evidence to show two things: 1) that it is more likely than not that a crime was committed; and 2) that “someone” is more likely than not the accused. After each witness testifies, the accused – the defendant – has the right to cross-examine the witness to test the truth of what is being presented.

One key distinction between a Preliminary Hearing and other proceedings, including trials, is that credibility is not an issue. By rule, the judge is not allowed to consider the credibility of witnesses and must take all evidence presented by the prosecution, no matter how spurious, questionable, or outright laughable, as truth. (This can be remedied in later proceedings, but it is a major impediment to dismissing nominal cases at an early stage).

Other rights of the accused at a Preliminary Hearing include the right to call witnesses, offer evidence, and testify himself, although most attorneys never do this. If credibility were an issue, it would make sense to call witnesses. As the rules stand, however, any contradictory evidence would simply be ignored by the judge.

The accused also has the right to have everything recorded by a court reporter. In Centre county, this happens automatically, although in some other counties it must be requested.

Waiving the Preliminary Hearing

Most people do not have a Preliminary Hearing. Instead, they waive it, agreeing that there is enough evidence to move the case forward into the Court of Common Pleas. Your better attorneys will not agree to waive a Preliminary Hearing without first receiving something in return. That “something” could be an agreement to modify bail to have his client released from jail, a specific written plea offer, or acceptance into the Accelerated Rehabilitative Disposition (“ARD”) program. By waiving the Preliminary Hearing, a defendant also gives up the right to later challenge the evidence against him through a Petition for Writ of Habeas Corpus.

Accelerated Rehabilitative Disposition (“ARD”)

ARD is a court diversionary program designed to give first-time offenders a second chance and a clean record. It consists of a period of supervision – typically twelve months – which includes counseling, classes, community service, and restrictions on drug and alcohol use as appropriate. ARD Participants must also refrain from all criminal activity while in the program.

Successful completion of the ARD program allows the accused to return to court to have his or her case dismissed and record expunged. Expungement includes the destruction of nearly every trace of the offense. Court and District Attorney files are destroyed. The County Booking Center, PennDOT, the State Police, local police, and the FBI are required to destroy all copies of photographs and fingerprints. Essentially all government records are deleted. The only exception to this is in the case of a DUI: a record of the ARD placement date is kept for ten years to be used in calculating a harsher penalty if the subject ever commits another DUI in the next decade.

What is not Expunged?

Private records and databases, newspapers, and internet search sites and web pages are all beyond the reach of the court for practical and Free Speech/Constitutional reasons.

Bail Hearing

One final event may happen in Central Court: a bail hearing. Many people are incarcerated prior to their Preliminary Hearing to guarantee their return to court. Reasons for this detention include the seriousness of the charges or the accused’s lack of ties to the local community. At a bail hearing, an attorney can argue for a reduced or modified bail amount, or for some other remedy to assure the court that a defendant will return for future court appearances.

The purpose of bail is set forth in Pennsylvania Rule of Criminal Procedure 523:

Rule 523. Release Criteria

(A) To determine whether to release a defendant, and what conditions, if any, to impose, the bail authority shall consider all available information as that information is relevant to the defendant’s appearance or nonappearance at subsequent proceedings, or compliance or noncompliance with the conditions of the bail bond, including information about:

(1) the nature of the offense charged and any mitigating or aggravating factors that may bear upon the likelihood of conviction and possible penalty;
(2) the defendant’s employment status and history, and financial condition;
(3) the nature of the defendant’s family relationships;
(4) the length and nature of the defendant’s residence in the community, and any past residences;
(5) the defendant’s age, character, reputation, mental condition, and whether addicted to alcohol or drugs;
(6) if the defendant has previously been released on bail, whether he or she appeared as required and complied with the conditions of the bail bond;
(7) whether the defendant has any record of flight to avoid arrest or prosecution, or of escape or attempted escape;
(8) the defendant’s prior criminal record;
(9) any use of false identification; and
(10) any other factors relevant to whether the defendant will appear as required and comply with the conditions of the bail bond.

(B) The decision of a defendant not to admit culpability or not to assist in an investigation shall not be a reason to impose additional or more restrictive conditions of bail on the defendant.

At the conclusion of the Bail Hearing, the Magisterial District Judge will rule on the requested modification. If new bail is set, a new Bail Bond sheet will be printed outlining the new bail requirements.

Young Person’s Guide: Part One – Initial Charges

Initial Charges via Police Criminal Complaint

If you are accused of a crime, you will most likely receive a Police Criminal Complaint in the mail. These are typically sent via both first class and certified USPS mail. Included in the envelope will be a copy of the Police Criminal Complaint, a Summons to appear for a Preliminary Hearing in Central Court, and a Fingerprint Order.

The Police Criminal Complaint outlines the Commonwealth’s case against you. It lists what specific statutes or laws you are alleged to have violated, identifying information about you, witnesses, and the officers involved, and a succinct description of the officer’s version of events called the “Affidavit of Probable Cause.”

You must have your fingerprints scanned and photograph taken prior to your Preliminary Hearing date. You do this at the Centre County Central Booking Center, located on the right side of the Centre County Correctional Facility’s building at 700 Rishel Hill Road, Bellefonte, PA 16823. If you do not have your fingerprints and photograph taken prior to your Preliminary Hearing, the judge may refuse to set bail in your case until you do so, which can create a hassle for you, your attorney, and the entire court.

Initial Charges via Arraignment

If your offenses are more serious, you may be arrested and taken before a Magisterial District Judge, who will inform you of the charges against you, give you a copy of the Police Criminal Complaint, and set bail in your case. Chances are that you’ll be incarcerated when you “see the judge,” and your arraignment will be via videoconference. If you cannot afford to post bail, you will be taken to (or remain in) the Centre County Correctional Facility.

The Best of Both Worlds

One hybrid situation is an arrest for Driving Under the Influence (DUI). In these cases, the accused is placed under arrest and transported to the nearest medical center that conducts blood tests (Mount Nittany Medical Center or Tyrone Hospital; the Central Booking Center on busy weekends; and a mobile lab during a DUI Checkpoint operation). At the hospital, the accused – if he or she has been calm and nonthreatening during the encounter – will not be re-handcuffed and will be taken to the Central Booking Center to be “processed” (fingerprints and photograph). At this point, most people are released to a family member, allowed to call a cab, or if the officer is in a good mood or it is on his or her way, dropped off at home.

PROTIP: Don’t go back to get your car that night. You are not sober. Get it the next day. Preferably after breakfast. Even if you think you are fine to drive because it is 4am and you were arrested at midnight and you “only had a few,” don’t do it. You will be arrested again, and will have to go through the whole rigmarole of a blood draw and a trip to the booking center. Furthermore, don’t ask the cabbie to drop you at your car. He’ll do it, and then call the cops. Don’t laugh. This happens. I’ve represented several over the years.

Before you are Charged

You do not have to wait until you receive the Complaint in the mail to talk to a lawyer. If you are applying for a Public Defender, they cannot talk to you until you do receive the Complaint, but private attorneys have no such restrictions. A lawyer can often reach out to the investigating officers and possibly mitigate the charges before they are filed, particularly if you have information or other assistance to offer in exchange. Additionally, if you are facing a charge that will likely lead to an Arraignment, a lawyer can try to negotiate a self-surrender in which you drive yourself to the Magisterial District Judge’s office instead of being arrested and transported in the back of a police car.

The Young Person’s Guide to Centre County Criminal Court

Today I’m sharing the first entry in a new web series. Taking my inspiration not so much from the classic Benjamin Britten orchestral work and more from the one I actually heard first, Garrison Keilor’s parody, I offer: The Young Person’s Guide to Centre County Criminal Court. Each entry will explain the rules, procedures, and quirks of a typical criminal case in the Centre County Court of Common Pleas from the initial charge through trial, appeal, and post-conviction relief.

Part One – Initial Charges

Part Two through ? – Coming Soon!

I think these pieces will be generally useful as an overview of the Criminal Justice System for anyone in Pennsylvania, but my focus is on Centre County in particular. I am aiming at a lay audience, but I hope my fellow practitioners will find it helpful as well. In particularly the younger, less experienced attorneys. I also hope the more… let’s call them “seasoned” attorneys will chime in with suggestions and corrections.

Throughout this series, in addition to the nuts and bolts of shepherding* a case through The System, I’ll also be offering insight into the types of cases likely to come up in Centre County.

I believe, as Thomas Jefferson did, that an informed citizenry are the bulwark of a strong democracy, and indeed are the only defense against tyranny that has ever worked. For many, the Criminal Justice System is at best a black box. Understanding how it works might help you avoid involvement in it in the first place, or at least make your experience less confusing.

As always, usual disclaimers apply. None of this is to be taken as legal advice. You should contact an attorney for advice on your individual situation. Know your rights.

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*Lawyer joke; pun intended.

Why You Should Have a Living Will

A living will and durable power of attorney can save you and your family lots of pain and aggravation when disaster strikes.

I like to read about how the other Professions deal with the central questions of their practice. Late last year, Dr. Ken Murray, MD, wrote this essay about how doctors choose to die. Not in the assisted-suicide sense, but in the choices they make about the treatment of terminal illness and end-of-life care. It stands to reason that no one understands how people die like a doctor.

Years ago, Charlie, a highly respected orthopedist and a mentor of mine, found a lump in his stomach. He had a surgeon explore the area, and the diagnosis was pancreatic cancer. This surgeon was one of the best in the country. He had even invented a new procedure for this exact cancer that could triple a patient’s five-year-survival odds—from 5 percent to 15 percent—albeit with a poor quality of life. Charlie was uninterested. He went home the next day, closed his practice, and never set foot in a hospital again. He focused on spending time with family and feeling as good as possible. Several months later, he died at home. He got no chemotherapy, radiation, or surgical treatment. Medicare didn’t spend much on him.

If you are diagnosed with a terminal illness, you have time to make choices for yourself. But if you are rushed to the hospital, unconscious, lots of decisions can and will be made for you. For my clients who want to have a say in their treatment, I advise they create a living will and durable power of attorney. These documents can be as simple or complex as they like, but they make two things clear: your wishes, and who makes decisions if you cannot. Make sure your family knows your wishes. Discuss how you would want to be treated with your doctor, and have him or her document it in your file.

In modern America, we shy away from discussing death and dying. We shouldn’t. It is part of the natural order of things. The responsible thing to do is to plan for it.

Self-Defense and Justification in Pennsylvania

Central to understanding the George Zimmerman case is the idea of self-defense, or Justification.. The entire “stand-your-ground law” issue is only a subpart of the discussion. It isn’t a new defense; it merely alters the rules.

Traditionally, a defendant is allowed to use deadly force to repel deadly force. In most jurisdictions, the defendant is required to attempt to retreat before using deadly force unless he is in his home (the so-called Castle Doctrine, named for the adage that “a man’s home is his castle”). This duty to retreat, or diffuse the situation, is removed in “stand-your-ground” jurisdictions.

Pennsylvania maintains the traditional approach to self-defense, referring to it as “Justification.”

The Self-Defense / Justification Process in Court

First: the Defendant raises the defense that he was justified in using deadly force.

Second: the Commonwealth must show, beyond a reasonable doubt, that the defendant did not act in justifiable self-defense.

Third: the Jury must decide what kind of force was used by the defendant (deadly or non-deadly) Pennsylvania defines deadly force as “force that, under the circumstances in which it is used, is readily capable of causing death or serious bodily injury. “Serious bodily injury” is bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.” (Pa. SSJI (Crim) 9.501)

This definition excludes force that is only deadly in an unexpected way. Shooting someone is deadly force. Slapping someone – unless the slapper is a World Champion Heavyweight Slapfighter – isn’t deadly force, even it if leads to death.

Fourth: The Commonwealth must prove any of three propositions:

(i) that the defendant did not actually believe he was in danger of death or serious bodily injury such that he needed to use deadly force to defend himself at that moment; or, that while the defendant actually believed he needed to use such force, his belief was unreasonable in light of all the circumstances known to him. (Pa. SSJI (Crim) 9.501)

Jurors are typically further cautioned as follows:

“[A] person is justified in using deadly force against another not only when they are in actual danger of unlawful attack but also when they mistakenly, but reasonably, believe that they are. A person is entitled to estimate the necessity for the force he or she employs under the circumstances as he or she reasonably believes them to be at the time.” (Pa. SSJI (Crim) 9.501)

(ii) that in the same encounter with the alleged victim, the defendant engaged in conduct that demonstrated his intent to cause death or serious bodily injury, and by that conduct, he provoked the use of force against him. (Pa. SSJI (Crim) 9.501)

or (iii) that the defendant knew that he could avoid the necessity of using deadly force with complete safety by retreating, but that he failed to do so.

As you can see, there are four (or five, depending on your interpretation) critical points at which the Commonwealth must prove something beyond a reasonable doubt. Failure to meet this burden at any of these critical points necessarily results in a Not Guilty verdict.

In a Pennsylvania trial for similar alleged offenses, the jury would be presumed to have concluded the prosecution failed at one of these critical points (once a burden has not been met in the process, deliberation is to cease and a Not Guilty verdict is to be rendered).

No Easy Answers in Self-Defense Cases

My sense over the weekend has been that the anger isn’t about the Zimmerman case per se. That “local crime story in Florida” is a proxy. It is hopefully serving as a catalyst for a discussion about race and justice in America. Unfortunately, I suspect most Americans lack the vocabulary to discuss race, privilege, and justice. We are steeped in a self-referential mythology about melting pots and blind justice. These stories we tell ourselves serve a purpose when they bind together people of disparate backgrounds in a common community, but they also tend to prevent real reform.

I read somewhere, and have misplaced the citation (if you wrote it, tell me and I’ll credit it to you) that “[t]his [the verdict] is basically saying that if you are racistly afraid of someone, you have no obligation to check your fear as irrational. And that your own racism is in fact considered reasonable enough to be considered a reason for self defense.”

Assuming you accept this idea, which I’m not saying I do or do not, this puts it in the hands of the jury to use their common sense and life experience to determine if a defendant’s belief the he is in imminent danger of death or serious injury is reasonable. If the jury really did conclude that George Zimmerman was motivated by racism and that this was a valid response, then reform is not going to happen in the realm of the system and must take place in the realm of culture.

I will just conclude by saying that I take comfort in the idea that our system of justice, while far from perfect, is designed to allow the occasional guilty man to walk free. This, to me, is far preferable to locking up the occasional innocent man. In that regard, the system works. That being said, as Melissa Harris Perry’s father signed her birthday cards, “the struggle continues.”

Laser Pointers and Aircraft

You may have seen this photograph making the rounds. I saw it yesterday on twitter. It shows a military helicopter hovering over the crowd in Cairo. The photo is mostly dark, with the helicopter eliminated by dozens of green, hand-held laser pointers. The protesters are trying to blind the pilot, preventing him from firing on them. Juxtaposed with the video of several helicopters flying by, trailing the Egyptian flag, and you get a sense for the uneasy balance between the protesters on the street and their would-be saviors, would be destroyers, the Egyptian military.

Laser pointers in Cairo

This is the future of civil warfare. Decentralized, crowd based countermeasures with no obvious organization or leadership. Fascinating stuff, particularly when you realize more and more local police departments are purchasing their own spy drones. But what if American protesters were to do the same to a helicopter over a protest here?

Laser Pointers in Pennsylvania

While this use of a laser pointer is not yet illegal under Pennsylvania law per se, illuminating an aircraft with a laser has been prosecuted as “interference with aircraft.” Legislation has been introduced several times since 2007, and most recently this past May, to make it a summary offense to knowingly shine a laser pointer on another with the intent to harass, annoy, or alarm. It would be a misdemeanor of the third degree to do so to a motor vehicle. Under current Pennsylvania law, it is unclear if an aircraft would be considered a “motor vehicle.” (Federally, the answer is “no.”)

Until a law is in place, prosecutions continue under existing laws. A couple of examples include:

James Gautieri, 53, was sentenced on April 13 2011 to 33 months in prison plus a $10,000 fine for the April 30 2008 illumination of a police helicopter in Philadelphia.

A 22-year-old Philadelphia man will be spending the next year and a half in prison, for an incident where he aimed a green laser at a city police helicopter.

Additionally, you may be subject to Federal prosecution as of February 2012. Federally, the law is even harsher:
18 USC § 39A – Aiming a laser pointer at an aircraft

(a) Offense.— Whoever knowingly aims the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States, or at the flight path of such an aircraft, shall be fined under this title or imprisoned not more than 5 years, or both.

Five months after the legislation was adopted, Pennsylvania had its first prosecution:

Daniel Dangler, 30, of Philadelphia was sentenced to three months in jail plus seven months home confinement and three years supervised release, for aiming a green laser at a news media helicopter.

Could they prosecute them all?

If something like the Egyptian protests were to happen in the United States, it is very likely the authorities would attempt to identify at least a few of the perpetrators. It would be technologically impossible to round everyone up, at least with present technologies, but a lot of the same law enforcement tools that are used for other crimes would come into play.

For instance, when there is a major public disturbance, often times erroneously labeled a “riot” by the authorities, investigators will turn to social media to track down potential suspects. Facebook, YouTube, and Twitter are all fertile sources for information on people who were involved. A possible suspect doesn’t even have to put his or her own information online. I have seen a number of cases where the police only have a photograph to go on and yet they manage to identify the person. locally, the State College Police Department uses their website, www.state college.com, to post photographs of an unidentified subjects. A good rule of thumb is that if you go out in public for any length of time, you will be photographed, and possibly videoed, and those images will end up online. Just think about how the Boston bombers were identified. Boston is by no means as heavily surveilled as cities like London, but the secondary sources–amateur photographs, handheld video, and surveillance from various businesses all documented the scene prior to the explosions in enough detail to allow investigators piece together what happened and whodunit.

Dean Woomer’s Advice to Bluto

Shining a laser pointer at a aircraft is a stupid crime. I call it that because it isn’t the sort of thing someone just accidentaly does. Drugs or alcohol are often involved, but these don’t get you out of trouble. Far from it. If you find yourself charged with such an offense, you need an experienced criminal defense attorney who understands the law and potential defenses.

Do they have a search warrant?

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.1

No person shall be … compelled in any criminal case to be a witness against himself[.]2

But if you got a warrant, I guess you’re gonna come in.3

What should you do when the police are at your door? And do they have a search warrant? Those question are best answered with another: why are the police at your door? There are three likely reasons.

You called them yourself

Sometimes you have to call the police. You yourself may be in trouble. Someone may need medical attention. If you call an ambulance, the police will often show up as well. Some laws even require you to call the police.

If you’re the victim of a property crime, such as theft, your insurance company may require a police report before they will reimburse you for the stolen items. If you witness a crime, your report may be the only lead the police have to go on! Your neighbors will certainly appreciate your help.

There are, of course, less pleasant reasons the police may come to your door.

They have a search warrant or an arrest warrant

A warrant is a document that allows the police to do something, take something, or arrest someone. Warrants are issued by judges, and only after the police are able to tell the judge exactly why they think a search or seizure is justified. This has to be more than just “a hunch.” For instance, the police cannot simply say “we heard from so-and-so that this guy is growing marijuana in his house.” The police can, however, use a tip like this and, if the tipster is shown to be reliable to the judge, they may still get their warrant.

Without a search warrant, the police cannot come into your home. How this is decided is the stuff famous cases are made of. Bottom line: when the police show up at your door and they have a search warrant, you have very few options. Because a judge has already decided to issue the search warrant, now is not the time to question its validity or whether the police followed all of the rules. You should consult an experienced criminal defense attorney to explore your rights and what, if anything, can be done. If the police were in the wrong when they searched your home, then your attorney can bring this to the attention of the court and a judge will toss out any evidence obtained during the illegal search.

If the police do come to your door, search warrant in hand, and start to search, you need to stay out of their way. You are not required to help them search, but you also cannot hinder their investigation. For instance, you cannot flush illegal substances down the toilet. This is called destruction of evidence, and may put you in a far worse position than you would have been if the police had simply found what you were trying to get rid of.

Some of the rules for warrants

Police are required to follow the “knock and announce” rule, meaning the police cannot simply break down your door without first announcing their presence. The police are required to give you time to answer the door. If the police feel there are “exigent circumstances” – Meaning pressing or demanding – such as furtive noises, rustling, shouting, or the sound of a toilet flushing, then they don’t have to wait as long.

You don’t have to open the door, but as Bob Weir sang, “if you’ve got a warrant I guess you’re going to come in.” Additionally, the police are not responsible for the damage they do if they have to force their way in.

Once you answer the door, they should tell you why they’re there. You can then ask “do you have a warrant?” If they do, they should give you a copy, and they’ll probably ask you to sit in the living room or wait outside or if they’re concerned about their safety, they may place you in handcuffs. This does not necessarily mean, however, that you are under arrest.

Note: if the police come bursting into your home, try to stay calm! If you have any pets, let the police know. Cops have a bad habit of shooting pets. For officer safety, of course. (Most cops I know are animal lovers, so don’t get the wrong idea about them. But all cops are concerned about safety.)

They are investigating you for a crime

The final reason the police may come to your door is if they are investigating a crime. In this situation, you need to be very careful.

The police have not yet obtained a warrant, so you don’t have to be quite as cooperative. You should, however, still be polite. There are a number of procedural things the police can do to make your life a lot more difficult if you aren’t nice to them.

Quoted above, the Fourth Amendment to the United States Constitution protects you against unreasonable searches and the Fifth Amendment protects you from being compelled to speak to an officer. We normally think of the Fifth Amendment as being something that comes up in court when a witness doesn’t want to testify, but it also applies to your interaction with the police.
In other words, the police cannot search your home unless they have a warrant or you give them permission Erie it the police cannot force you to answer their questions, unless you voluntarily talk to them.

If the police do come to your door, and tell you why they’re there, listen to what they’re saying. For instance, if they are there about a noise complaint, they may ask you to turn your stereo down. You should do this, and then the police should be on their way. If at this point they asked to look around, you can politely suggest they get a warrant, wish them a good day, and close the door.

Although I always advise my clients against it, if you do decide to talk to the police, you have to tell the truth. Lying to the police is potentially a crime itself. But again, you’re not required to talk to the police. A lot of people have put in a lot of effort to maintain your right to remain silent. Use it.

The police knocking on your door is a dangerous situation, and must be handled properly. Use your common sense. Be polite. Only say what you absolutely have to, and try not to answer any questions. If you do find yourself charged with a crime after a visit from the police, you should contact an experienced criminal defense attorney as soon as possible.

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1U.S. Const. amend. IV.
2U.S. Const. amend. V, cl. 3.
3The Grateful Dead, Truckin' (American Beauty 1970).

Actual Innocence May Actually Mean Something After All

Score one for the good guys. In a 5-4 decision, the US Supreme Court has ruled that, in cases where a defendant can make “a convincing showing of actual innocence,” Congress’s 1996 rule that a one-year time limit applies to state inmate appeals in Federal court is invalid. Actual innocence, per Justice Ginsberg, is defined as evidence that is strong enough to persuade a judge that “no juror, acting reasonably, would have voted to find him guilty” at his trial had the jury known of it.

Question, and I honestly mean it: What possible interest could the public and/or a victim of a crime have in seeing an “actually innocent” person imprisoned? Isn’t that just the height of selfishness and ghoulish cruelty?

I think it also violates Pa Rule of Professional Conduct 3.8. Specifically, Comment 1 to the rule:

A prosecutor has the responsibility of a minister of justice and not simply that of an
advocate.

Any prosecutors or victim rights advocates care to chime in?

Collateral Consequences of a Drug Conviction

A story in this local newspaper story mentions that a man and woman charged with drug offenses lived on “Beaver Farm Lane.” Locals will know that this is one of the housing assistance complexes – sometimes called “Section 8  Housing,” although not all of them are covered by Section 8 – maintained by the county. Half a pound, or roughly 227 grams, is well over the 30 grams, or 1 ounce, limit for personal use. Even assuming two people could combine their personal stash – a prospect not supported (or discounted) by any Superior Court case I’ve come across, but a novel theory nonetheless and that I’d love to try to argue one day – the presence of items “used in the sale of illegal substances” made it a foregone conclusion that they’d both be charged with Possession with Intent to Deliver (PWID), an ungraded Felony offense.

Collateral Consequences

If she pleads guilty or is convicted, she’ll lose a several rights, including the right to drive for at least one year and her eligibility for most housing assistance permanently. This last loss is particularly relevant in the story above because the woman lives in one of these housing projects. Sadly, she and her children will likely find themselves struggling to find a place to live very soon. That is if she manages to avoid jail.

One bright spot for this family: Pennsylvania has opted out of the Federal law prohibiting individuals convicted of a drug offense from receiving TANF and SNAP monies, so she and her young children may still be eligible for that support.

What can you do?

There are, of course, exceptions to all of these rules, and nuances that simply cannot be covered in a blog entry. Anyone facing such a situation should try to speak with an experienced drug defense attorney.

Attorney Justin P. Miller in Bellefonte, Pennsylvania practices criminal defense and has defended countless individuals facing drug crimes in Pennsylvania. Contact him today for a free interview and consultation.

Firearms Disability and You

Guns, gun safety, and gun rights have been very much in the news of late. You might not realize how limited some people’s Right to Bear Arms already are.

Hunter - Firearms DisabilityUnder Pennsylvania and Federal law, you can lose the right to possess a firearm – a term that includes rifles, pistols, and pretty much anything other than a black-powder muzzle loader (more on that later) that can fire a projectile – for several reasons. The chief reason, and the one that catches the most people, is conviction for a crime. Gun rights are also curtailed for most people subject to a Protection From Abuse order (PFA), and some less common categories like being committed for mental illness. But I want to focus on the first category today. We’ll save PFAs for another time.

Conviction of a Crime

Pennsylvania and Federal law differ on what level of offense results in losing your gun rights. Under Pennsylvania law, if you are convicted of a Felony offense, you can lose your right to possess firearms for life. Similarly, under Federal law, if you are convicted of a “crime punishable by imprisonment for a term exceeding one year,” you are prohibited from possessing firearms Federally. Both sets of rules apply simultaneously, and consider convictions anywhere as long as they meet the criteria.

If you do lose your right to bear arms, you are pretty screwed. The laws provide mechanisms to get your rights back, but they involve pardons and certifications from top Federal officials. That being said, if you have the right set of facts, it can be done.

Even a DUI can cost you your guns

In Pennsylvania, DUIs are charged on an escalating scale. First offenses are treated relatively mildly, and subsequent offenses are met with increasingly stiffer penalties. While a DUI conviction will not normally lead to a loss of gun rights, enough of them in a short enough period of time will. 18 Pa.C.S. § 6105 provides that “[a] person who has been convicted of driving under the influence … on three or more separate occasions within a five-year period” will be prohibited from transferring or purchasing firearms for a period of ten years.

Protect Your Right to Hunt

If you are a hunter or sportsman and have been charged with a crime, you owe it to yourself to talk to an attorney who understands the collateral consequences of any conviction or guilty plea. Once you lose your gun rights, they are very difficult to get back!

Attorney Justin P. Miller grew up in Centre County and understands gun culture. Call him today to discuss your rights under the law. 814-359-7529.