DUI Defense

ARD Policies Vary by County

In Pennsylvania, a first conviction for Driving Under the Influence of alcohol or a controlled substance almost always means jail time, a 12 month license suspension, and a heavy fine. Many drivers charged with first offense DUI, though, are eligible for ARD, which stands for Accelerated Rehabilitative Disposition. ARD can allow someone facing their first ever DUI charge to avoid a criminal conviction for DUI as well as the unpleasant consequences of that conviction. Drivers who are admitted into an ARD program face license suspensions of up to 90 days, with most drivers losing their driving privileges for 30 or 60 days. They also must take Alcohol Highway Safety Classes, submit to drug and alcohol evaluations, seek treatment for addiction (if an evaluation reveals a problem), and follow rules laid down by the county’s probation department, and the court.

The local rules vary from county to county. Cumberland County, for instance, offers Alcohol Highway Safety Classes on weeknights and weekends. ARD participants must complete a total of six 2.5 hour classes to successfully complete the program. In neighboring Perry County, participants must complete four 3 hour classes. Perry County offers the classes on Tuesdays and Thursdays from 6:30 pm to 9:30 pm.

Classes, though, are only part of it. Juniata County requires that ARD participants complete 30 hours of community service. Dauphin County participants must attend a victim impact panel. Each county also imposes fees and costs participants must pay in order to successfully complete the ARD program. In Dauphin, participants pay at least a $1,500.00 “acceptance fee”. Perry County participants pay $300.00 plus the “costs of prosecution”. Costs can include lab fees and a variety of other charges, many unrelated to the offense of DUI.

The rules, fees, and policies I’ve just described are by no means the only ones. It’s important that anyone facing a driving under the influence charge discuss all aspects of their case, including the possibility of ARD, with a lawyer experienced in defending DUI cases.

If you are facing a DUI charge and would like to discuss your possible ARD eligibility with an experienced Pennsylvania Attorney feel free to contact me at 717-582-0400. I offer free, no obligation, initial consults.

Sean Potter
Law Office of Sean Potter, PC
15 E. Main Street | PO Box 121
New Bloomfield, PA 17068
Phone: 717-582-0400
Fax: 717-582-0401
www.attorneypotter.com

The Pennsylvania Preliminary Hearing: Witnesses Optional (well almost).

Pennsylvania’s legislature and courts target the rights of those accused of crimes with all the ferocity of a coyote chasing down a fawn. In the recent case of Commonwealth of Pennsylvania v. David Edward Ricker (2015 PA Super 153), the Superior Court decisively ruled that the prosecution need not present any actual witness testimony at preliminary hearings. At the preliminary hearing, the Commonwealth’s task is (and has been) to make out a prima facie case that a crime occurred and that the accused is the culprit. While the Commonwealth still has to do just that, the Superior Court just made the job easier.

Prima facie does not mean proof beyond a reasonable doubt. One way of thinking about is to ask yourself whether a jury could convict the accused of the crime charged if that jury were to believe all the evidence the prosecution presented. If your answer is yes, then the prosecution has made out a prima facie case and the magisterial district judge “binds” over the charge or charges. For the Commonwealth, making out a prima facie case, in most situations, has never been a particularly difficult task. So why is the Commonwealth’s job even easier now?

Well, instead of having to present testimony by complaining witnesses and other fact witnesses, the Superior Court has ruled that the prosecutor only has to produce the witnesses’ out of court statements, which is to say “hearsay”. That means a police officer can simply tell the judge whatever the alleged victim told him or her. No need for the actual victim, or alleged victim, to testify. This also means, of course, that the accused has no right to confront his accusers at a preliminary hearing. Recent changes in the Pennsylvania Rules of Criminal Procedure made it all but inevitable that hearsay, alone, would eventually be enough for the prosecution to carry the day at a prelim. The Ricker case simply removed all doubt.

Prelims, though, are still important. A skillful criminal defense attorney will use every opportunity to build or bolster a defense. Even a preliminary hearing consisting only of hearsay testimony can provide a valuable opportunity for the lawyer to gauge the strength of the Commonwealth’s case, to test the evidence, to develop suppression issues, and to spot weaknesses. And, because the rules permit the criminal defendant to call witnesses on his or her behalf, it may be possible for the defense attorney to call the witnesses the Commonwealth didn’t want to call.

A Quick Note on Metabolites

A while back I blogged about how Pennsylvania drivers can be convicted of DUI even if they were not impaired while driving. This is so because very low levels of controlled substances (or their metabolites) can be enough to support a DUI conviction when the charge is based on operating a motor vehicle when there is any amount of a controlled substance, or a metabolite of a controlled substance, in the driver’s blood.

The phrase “any amount” does not quite mean any amount, however. But it can and often does mean a very, very low amount. For marijuana metabolites, if a driver’s blood contains more than 1 nanogram of the THC metabolites 11-Hydroxy-Delta-9-THC (THC-OH) or 11-Nor-9-Carboxy-Delta-9-THC (THC-COOH) that driver can be guilty of a controlled substance DUI under 75 Pa. C.S. Sec. 3802(d). If a driver’s blood contains more than .04 ng of the “parent drug” of marijuana, that is Delta-9-THC (THC), then that driver can be guilty of a controlled substance DUI.

Now, what I just stated, above, does not mean there are no defenses in controlled substance DUI situations. Which, of course, is why anyone in Central Pennsylvania facing a DUI charge should consult with an experienced criminal defense or dui defense attorney.

If you are facing DUI charges in Cumberland, Dauphin, Perry, Juniata, or other Central Pennsylvania counties, do not hesitate to give me a call. You can reach my office at (717) 582-0400 or (717) 884-8384. I offer free consultations and look forward to helping you.

Sean Potter
Law Office of Sean Potter, PC

Yes, Preliminary Hearings are Important

Anyone who faces a misdemeanor or felony charge in Pennsylvania has an absolute right to a preliminary hearing. At the “prelim”, the Commonwealth’s goal is to present enough evidence to convince the magisterial district judge that a crime was committed and that the accused probably committed that crime. We lawyers say the Commonwealth has to make out a “prima facie” case. The prelim is not about proving guilt beyond a reasonable doubt. Its main purpose is to safeguard an accused person’s right against illegal arrest and detention. As skilled defense attorneys know, however, the prelim serves other functions, as well.  (more…)

Marijuana DUI Arrest + No Probable Cause = Charges Dropped

Recently, a client came to my office after police charged him with a controlled substance DUI. According to the lab and police reports, he had 12 nanograms of a marijuana metabolite in his blood within two hours of operating a motor vehicle. In Pennsylvania, a driver with 1 or more nanograms of THC in his or her blood can face a DUI conviction.

After the client gave me a detailed account of the events before and after his arrest, I realized the police did not have — and could not have had — any reason to stop his vehicle. Quite simply, the officer did not have any reasonable suspicion that my client was violating the rules of the road or any other laws. Nevertheless, he was arrested and charged.

Immediately before the preliminary hearing, though, the Commonwealth’s case began to fall apart. I was able to demonstrate to the arresting officer and the more senior officer she brought along for support that the stop of my client was totally illegal. The end result? The police officer withdrew the criminal charges. Case closed.

As always, it’s important to realize that no two criminal cases are alike. No attorney can guarantee a result. However, as a knowledgeable, experienced criminal defense attorney I welcome the opportunity to deliver the best results possible to all of my clients. If you are facing DUI or other criminal charges in central Pennsylvania, call my office today. I offer new clients a no-cost consultation and case evaluation. Call the Law Office of Sean Potter, PC at 717-582-0400 to find out how I can help you.

Totally Sober Yet DUI – Part I

Handcuffs

Even unimpaired drivers can end up cuffed in Pennsylvania

75 Pa.C.S. § 3802(d). That’s Pennsylvania’s law which makes it illegal to drive after using a controlled substance. This section is important for those who use weed because it means Pennsylvania drivers who are totally sober can be stopped, arrested, charged with a controlled substance DUI, convicted, and imprisoned even though he or she was stone cold sober. I pasted the statute at the end of this post so you can read it for yourself. Now, though, I will explain how a sober driver can end up in legal hot water.

Let’s say a driver last smoked 24 hours before getting behind the wheel. He is totally sober, safe to drive, and feels no effects from that long gone spliff. Anyway, off he goes. Only his left rear brake light is out.

Just before he pulls into the parking lot of the building where he works, he notices the red and blue lights in his rear view mirror. He knows he wasn’t speeding, so what could it be? The officer quickly tells him it’s the burnt out brake light. Our driver breathes a sigh of relief.

However, as the officer talks to the driver through the window, he notices an empty Ziploc bag and a lighter sitting in plain view on the front passenger seat. Suddenly, the officer “notices” the odor of cannabis permeating the car. He asks our driver to exit the vehicle.

Our driver, however, was regretting that he hadn’t thrown out the Ziploc from the ham salad sandwich he ate in the car two weeks ago. His thinking and regretting caused him to miss the officer’s request to exit his car. Finally, on the third request, he stepped out. Unfortunately for him, he parked his car on a gravel covered slope. As if on cue, then, he slipped as soon as his feet hit the pavemet. Just a little slip, mind you. He didn’t fall. But the officer had seen enough. The cop created a mental PC list:

  • Delayed response to simple commands
  • Odor of marijuana permeating the vehicle
  • Paraphernalia within reach of the driver (the baggie and lighter)
  • Driver unsteady on his feet

So our officer pops the question: “Just tell me the truth and we’ll both be able to go home a lot sooner. Have you smoked weed recently?”

To which our driver responds “yeah, but it was over 24 hours ago.”

To which our officer responds “I am placing you under arrest for suspicion of driving under the influence of a controlled substance. You have the right….”

Stay tuned for Part II of our tale of innocence and woe. What will happen to our driver? The officer? The taillight?


75 Pa.C.S. § 3802(d)

d)  Controlled substances. –An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

   (1) There is in the individual’s blood any amount of a:

      (i) Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act;

      (ii) Schedule II or Schedule III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or

      (iii) metabolite of a substance under subparagraph (i) or (ii).


Pennsylvania DUI Defense: Constitutional Rights of the Accused

Arrested for DUI in Pennsylvania? You may have defenses based on the United States Constitution.  For instance, evidence of a driver’s blood alcohol content (BAC) is usually central to the prosecution’s case. As an attorney who defends clients charged with DUI, one of the first questions I investigate is whether or not police obtained that blood evidence as the result of  an illegal detention or arrest.

An unlawful detention may be one based on a state trooper’s or police officer’s “hunch” about a suspicious vehicle. If a police officer wants to perform a traffic stop, a hunch is not a valid reason. At the very least, the officer must have a reasonable suspicion that a driver is operating his vehicle in violation the motor vehicle code. He or she must be able to say and describe what prompted the stop. If not, the stop may have been unlawful and may lead to suppression of the evidence obtained as a result of that illegal stop.

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If you have been charged with DUI in the  Cumberland, Perry, Dauphin, Juniata, or other counties in central Pennsylvania, I invite you to contact my office at 717-582-0400 to arrange a free consultation with me. At the consultation I will assess your case and attempt to answer your questions.

Sean Potter
Law Office of Sean Potter, PC
15 East Main Street
P.O. Box 121
New Bloomfield, PA 17068
Phone: 717.582.0400
Fax:      717.582.0401
www.attorneypotter.com

Free Consultations at the Law Office of Sean Potter, PC

Free Consultations at the Law Office of Sean Potter, PC

I am happy to offer first-time visitors a free consultation. Simply phone 717-582-0400 to make an appointment. Whether you are concerned about a child custody or other family law matter; a will or probate issue; a DUI or criminal issue; or a variety of other legal matters, I would be happy to assess your situation and provide an overview of the legal process unique to your situation. As always, there is no obligation.

The Law Office of Sean Potter, PC is located at 15 East Main Street, New Bloomfield PA, 17068. It’s easily accessible from the West Shore via US 22/322 or US 11/15. From Cumberland County, Wertzville Road and SR34 provide convenient access. For directions, click the photograph of my office building.

Hope to see you soon.

Sean Potter
Attorney and Counselor at Law