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Saturday, February 25, 2012

Is it even worth fighting a first offense DUI case? Since they now offer ARD?

I am reminded of a client who hired me because "I just need a little help getting through the ARD process." Within a few short minutes at the preliminary hearing, the charges against her were dismissed because it was abundantly clear that the officer lacked probable cause to stop her. The DA Offered careless driving. We rejected the offer. The DA conceded and had the charges withdrawn never to be refiled.

A good defense attorney will look for the "defense" before recommending ARD.

The officer didn't wait for my car regristration before writing my speeding ticket. He also had on a knit cap.

It is an urban legend that the officer must be in "full uniform, including hat/cover.etc. to write a citation.

With regard to your registration, it goes to the weight of the evidence, but does not mean you will be found not guilty. if the officer can establish, beyond a reasonable doubt, that you were operating a particular vehicle, you will be found guilty.

Depending on the speed you were traveling and the points that will be applied to your license, you may consider going to court to ask for a reduced speed or a different charge that carries no points.

An attorney can be helpful to you.

Sunday, February 19, 2012

Grounds to file Petition for Post Conviction Relief Act

In order to assert a claim for ineffective assistance of counsel a defendant must prove that he was denied “reasonably effective assistance” of counsel by satisfying the two-prong test of Strickland v. Washington, 466 U.S. 668, 686-687, 104 S.Ct. 2052, 2063-2064 (1984).

Under this test, the Defendant must show (1) that counsel’s performance was deficient, meaning that counsel’s representation fell below an objective standard of reasonableness, and (2) the deficient performance prejudiced the defendant, meaning that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; [a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 687-688, 694, 104 S.Ct. at 2065, 2068.

“Effective counsel does not mean errorless counsel, but rather counsel whose assistance is ‘[w]ithin the range of competence demanded of attorneys in criminal cases.’” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449 (1970).

In considering whether trial counsel has met this standard, the court should first determine whether counsel made a “sufficient inquiry into the information that is pertinent to his client’s case.” Strickland, 466 U.S. at 690-691, 104 S.Ct. at 2066). Once such a reasonable inquiry has been made by counsel, the court should consider whether counsel made a reasonable strategy decision on how to proceed with his client’s case. Strickland, 466 U.S. at 690-691, 104 S.Ct. at 2066). Finally, counsel’s strategy decision is a “tactical” decision and will be virtually unchallengeable absent extraordinary circumstances. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066.

In Pennsylvania, the standards for determining claims of ineffective assistance of counsel are well settled. A petitioner is required to demonstrate: 1) that the underlying claim is of arguable merit; 2) that counsel’s action or inaction was not grounded on any reasonable basis designed to effectuate his client’s interests; and 3) that but for that error or omission, there is a reasonable probability that the outcome of the proceeding would have to be different. Commonwealth v. Abu-Jamal, 720 A.2d 79, 88 (Pa. 1998) citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, (1987); Strickland, supra.

The Pennsylvania Supreme Court has equated the “no reliable adjudication” language of the P.C.R.A. with the “reasonable probability” language of Strickland, supra. “Where the defendant demonstrates that counsel’s ineffectiveness has created a reasonable probability that the outcome of the proceedings would have been different, then no reliable adjudication of guilt or innocence would have taken place.” Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999).

Counsel is presumed to effective until the defendant proves otherwise. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). It is the defendant’s burden to prove all three prongs of the ineffectiveness standard. Commonwealth v. Traviglia, 541 Pa. 108, 661 A.2d 352 (1995).

If it clear that the defendant failed to meet the prejudice prong, the claim may be dismissed on that basis alone without the determination of whether the first and second prongs of the standard have been met. Id., citing Strickland, supra. In order to evaluate whether the defendant was prejudiced, it is necessary to focus on the overall trial strategy and to view the counsel’s performance in toto. Commonwealth v. Saxton, 516 Pa. 196, 532 A.2d 352 (1987). This standard requires not the highest quality of advocacy available, but a certain minimum level of competency. Id.

I had an ARD DUI expunged from my record, Why is it sill on my DMV record it was 9 years ago in PA?

Unfortunately, this is one of the "myths" of ARD is that it makes everything disappear. ARD does provide a means by which you can avoid a criminal conviction, but, beyond that it is not the gift that many think it may be and the District Attorneys' offices advertise it to be.

Make no mistake, ARD is the lesser of two evils. Not a gift.

For example, not only does the charge remain on your PennDOT driving record for 10 years, but during that 10 year period, ARD counts as a prior conviction for the purpose of enhancing a subsequent DUI charge.

This is one of the many reasons why anyone considering admission into the ARD without an attorney or with the wrong attorney, should consider all alternatives to ARD before making a decision regarding a particular DUI case strategy.

How accurate is a DUI hospital blood test? I know some counties have banned hospital blood test; however the local countries around this area still do them. I hear both stories that they are approved and reliable and then I hear stories that they are far from accurate? I am lucky not involved in a DUI but lately I just hear a lot of talk about these tests. Thank you.

I think your question actually relates to the testing process, rather than the draw. Generally, a hospital laboratory tests serum, whereas a laboratory utilized gas chromatography. Serum testing produces a higher ethyl alcohol level which must be converted utilizing a mathematical formula to produce a "whole blood equivalent" BAC. The conversion rates vary as there is no actual accepted standard. The testing process is subject to challenge and, more importantly, the medical technician who is often asked to testify is subject to vigorous cross-examination. Close calls produce wins for the defense in jury trials.

What can i do to get ARD again for my second DUI?

You can't. Pennsylvania law makes ARD unavailable to any individual who has been convicted of, or received ARD for, a DUI within the past 10 years.

To continue being the bearer of bad news: Because you entered ARD for your previous DUI arrest, the prior DUI will count as a conviction for the purpose of enhancing the sentence for the present DUI charges. As such, you face a minimum of 5 days in jail if your BAC is between a .08 and .099, 30 days in jail if your BAC is between .10 and .159, and 90 days in jail if your BAC is above .16, or involves controlled substances.

With intermediate punishment (if offered in your county), you are still looking at a minimum of 30 days in jail.

There are a number of defenses available. Contact an experienced local DUI defense attorney to assist you. There is insufficient information to make a recommendation about potential outcomes and the presumption of a conviction is premature.

Appealing an underage drinking charge

In most counties, a summary appeal will result in a different charge. However, you should be aware that a different charge may not be in her best interest.

With an Underage Drinking Citation, she will lose her license for a period of 90 days. However, if this is her first offense, she should be eligible for an Occupational Limited License (OLL) to get to and from school/work.

In addition, she will be able to expunge her record when she turns 21 (perhaps before she leaves college).

With a Disorderly Conduct conviction, she must wait 5 years before she may expunge her record. In 5 years, she will have graduated college and entering the job market.

Would a plea bargain of going to inpatient rehab and continuing outpatient get a second DUI lowered to keep my career?

Unfortunately, DUI is one of the few charges that affects the entire socio-economic spectrum. In some cases, those involving truck drivers who rely on a CDL for their livelihood, the end result is a loss of license AND a loss of career.

Under current DUI laws, most prosecutors consider ARD a "gift, "a "warning," and a "second chance." Violate the law twice and the DA is not likely to be inclined to give you a third chance.

The presence of lobbying groups such as MADD and the sheer number of DUI charges (over 1/3 of all criminal charges in some counties) makes the reduction of DUI charges to a non-DUI offense a nearly obsolete concept. I know of no DA who will, without a substantial defect in the evidence, agree to reduce charges to a non-DUI offense. In particular, this is true where you have a third-tier offense. The end result for the DA would be political suicide.

You indicated this is your second offense. At a minimum, you are looking at 5 days in jail and a loss of license for 12 months (assuming the officer and DA were willing to reduce the charge to a violation to a First Tier.)

You need an experienced local DUI Defense Attorney to fully and fairly evaluate your case before making any decisions. At this point there is insufficient information to recommend a course of action, and the presumption of a conviction/plea agreement is premature.

Is there a certain amount of miles an officer has to pull you over from the time of a traffic violation?

No. If the Officer has probable cause to believe that a violation of the Vehicle Code has occurred, he can initiate a traffic stop. The location of the traffic stop is usually irrelevant (unless outside of jurisdiction).

Based upon the facts in your question, one of two things occurred.
1. The Officer was attempting to gather evidence to determine if you were DUI or
2. The Officer was delaying the stop for officer safety reasons, either to locate an appropriate safe spot to initiate the stop or waiting for a backup officer to arrive.

I would venture to guess that he was simply trying to gather evidence of a DUI.

Why is a lot of Judges and prosecutors prejudiced when it comes to DUI cases?

This is really a policy question, not a legal question... But here is my point of view. DUI cases generally account for nearly 1/3 of all criminal cases filed. Over 52K people were arrested for DUI in Pennsylvania last year. However, the State has essentially tied the hands of everyone involved (judges, DAs, and defense attorneys) by enacting statutes which require the court to impose certain mandatory sentences and taking away the right of trial by jury for first offense cases.

The DA, an elected official, cannot afford, politically, to be known as the guy who cut a deal on a DUI if the guy later goes out and kills a family while DUI. The judge, trying the case, cannot afford, politically, to be known as the guy who acquitted a DUI driver who later went out and killed a family while DUI.

In addition, the statutory elements of DUI are not complex. So, absent a legal basis challenging probable cause to stop or probable cause to arrest, the defenses are limited. The toxicology defense (challenging your BAC) is an excellent defense if you can afford the expert necessary to inform the judge and jury that the Breathalyzer and/or blood testing is inherently flawed.

MADD has a substantial lobby in the legislature and in the court of public opinion. The loss of life caused by a person who operated a motor vehicle while intoxicated is an unfortunate reality. However, that lobby has now caused a number of people who are not intoxicated, but who do have a BAC above .08% to be caught in this legal conundrum.

Get a good lawyer. Look for the best defense. The winds are not going to change in the direction of the defense anytime soon.