philadelphia criminal defense attorney lawyer

Summary Offenses, Alcohol, & Expungements

Brian Zeiger — Sun, 07 Mar 2010 14:58:54 +0000

As we have previously discussed, when you are arrested and you are NOT convicted of any crime and you do NOT plea guilty to any crime, you can have the record of your arrest expunged in Pennsylvania. However, if you are convicted or plea guilty to a summary offense, you can have the conviction of the summary expunged if you wait five years and stay out of trouble during that five you period of time.

An exception exists to the five year waiting period. The exception is directly written into the expungement statute at 18 Pa.C.S. sec. 9122(a)(3) as:

a person 21 years of age or older who has been convicted of a
violation of section 6308 (relating to purchase, consumption,
possession or transportation of liquor or malt or brewed beverages)
petitions the court of common pleas in the county where the conviction
occurred seeking expungement and the person has satisfied all terms and
conditions of the sentence imposed for the violation, including any
suspension of operating privileges imposed pursuant to section 6310.4
(relating to restriction of operating privileges). Upon review of the
petition, the court shall order the expungement of all criminal history
record information and all administrative records of the Department of
Transportation relating to said conviction.

This means that if you are convicted of a summary offense under 18 Pa.C.S. 6308, you are over 21 years old and you have satisfied all of the requirements from the initial sentence, your summary conviction shall be expunged without the five year waiting period. 18 Pa.C.S. 6308 involves summary offenses related to alcohol.

Therefore, your under aged drinking conviction can get expunged in less then five years.

In Japan its also illegal to purchase alcohol under age. However, you can buy beer from a vending a machine.

Statements

Brian Zeiger — Mon, 15 Feb 2010 00:56:03 +0000

An issue often comes up when a statement is made to the police at the time of an arrest where the defendant wants the jury to hear the statement. The only two ways that statement can be heard by the jury is if the district attorney calls the police officer to testify about the statement, or if the defendant testifies.

Often, a defendant should not testify in their case. Some of the reasons the defendant should not testify: the defendant has bad prior crimes that the district attorney may be able to bring out only if the defendant testifies, the defendant is not a good witness, or while the defendant’s story does not inculpate her, but makes her seem guilty.

When you are faced with the situation the best thing to do, is to be prepared for three scenarios during trial. The first is simple, the district attorney uses the statement that was made by the defendant to the police. The second is to ignore the statement all together, so if the district attorney doesn’t use the statement, you are ready to fight the case and never let the jury know the statement was ever made. The third is to prepare for the defendant to testify.

The hardest part is not knowing what will happen and being able to change on the fly. Not having a set game plan is very tough on some clients, but often the most important part of a case.

interrogation

Technorati

Brian Zeiger — Wed, 25 Nov 2009 03:46:16 +0000

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Police-panel investigator vows to fight misconduct rap

Brian Zeiger — Sat, 07 Nov 2009 13:15:20 +0000

We were interviewed by the Daily News regarding a police panel investigator vowing to fight a misconduct rap. The following is the article:

Posted on Fri, Nov. 6, 2009

“Police-panel investigator vows to fight misconduct rap

By DANA DiFILIPPO
Philadelphia Daily News

difilid@phillynews.com 215-854-5934

As chief investigator of the Police Advisory Commission, Wellington Stubbs II sleuths to uncover police misconduct.

But last week, Stubbs found himself at the center of his own misconduct scandal, when City Controller Alan Butkovitz accused him of violating city residency requirements by living in New Jersey and failing to fully disclose outside income as the city requires.

Yesterday, Stubbs, through his attorney, vowed to fight the accusations when he attends a still-unscheduled disciplinary hearing at which he faces termination.

“We deny [the charges] categorically,” his attorney, Brian J. Zeiger, said.

Butkovitz accused Stubbs of maintaining his primary residence in South Jersey, noting that investigators saw him at least 14 times at a Camden County home owned by his wife.

Stubbs, a city employee since 2002, says he lives in Southwest Philadelphia.

The controller also reported that Stubbs’ vehicle has New Jersey tags and insurance, that he receives mail in New Jersey and that he certified New Jersey as his primary residence on mortgage-refinancing paperwork.

He also held a second job in New Jersey for seven years for which he listed the Garden State as his home state, according to the report.

“The violations are so egregious and so accumulative that it’s just completely implausible to make an argument that he forgot [to report the outside income],” Butkovitz said.

Still, Zeigler maintains that Stubbs is guilty only of “being a good father” to his two elementary-school age children, including a special-needs daughter.

“He and his wife are separated. He’s taking care of his family, who live in New Jersey [with their mother],” Zeiger said. “He goes and visits the kids often – that’s normal; there’s nothing illegal about that. That’s what we want people to do in our society.”

Zeiger acknowledged that Stubbs’ name is on some New Jersey records, but only because his children live there. Stubbs also has utility bills proving his residency in Southwest Philly, he added.

The Controller’s Office gave its findings to the city Managing Director’s Office for review. City officials didn’t respond to requests for comment yesterday.

Stubbs’ case is one of 20 residency investigations the Controller’s Office has conducted in the past year, spokesman Harvey Rice said.

Ten remain under investigation, four were deemed unfounded, five resulted in terminations and one (Stubbs’ case) is listed as pending, Rice added.”

Federal Presidential Pardon

Brian Zeiger — Mon, 02 Nov 2009 14:35:35 +0000

When convicted of a federal crime, you can ask to be pardoned for your crimes, but only from the President of United States of America. The pardon application goes through the Department of Justice through the office of the Pardon Attorney.

The President has the power to grant amnesty, commute a sentence, or grant a full pardon for any offense against the United States. However, the President cannot pardon a person for an offense committed against a state. Amnesty means that you are immune from prosecution for a specific act. The best example, would be granting amnesty to all people who peacefully resisted being drafted for a war they opposed. In that instance, if the government was about to charge draft dodgers with a crime, the president could grant amnesty to all of those people.

A commutation is where the President does not remove the record of the conviction, but removes all of part of a sentence. An example of this is when I. Lewis “Scooter” Libby was convicted of crimes, he received a sentence of 30 months in jail. Then President George W. Bush commuted the sentence. In that instance, Libby still remains a convicted felon.

A pardon full removes the conviction, and reinstates all rights of the individual to their rights as they were before the prosecution that caused them to be convicted.

Clemency is a word used to describe the entire umbrella of pardons, commutations and amnesty.

Defensive Weapons In Pennsylvania

Brian Zeiger — Sun, 25 Oct 2009 21:13:10 +0000

In Pennsylvania, you can carry a weapon for defensive purposes, but you cannot carry every type of defensive weapon even if your intent in carrying it is solely for defensive purposes. Also, if some is injured as a result of your actions, you could be prosecuted not just for the weapon, but also for assault.

Some weapons in Pennsylvania are called Prohibited Offensive Weapons, and if the weapon you possess meets any of the definitions below, you cannot carry the weapon even for defensive purposes. Further, note in the definitional section below the of the actual offensive weapons, that a blackjack and a spring loaded weapon are both mentioned. Many defensive weapons fit a combination of these two and are therefore not allow.

The following picture is an example of a spring loaded baton, and the statute follows.

Spring Loaded Baton

A POW is defined below:

§ 908. Prohibited offensive weapons

(a) OFFENSE DEFINED.– A person commits a misdemeanor of the first degree if, except as authorized by law, he makes repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon.

(b) EXCEPTIONS.–

(1) It is a defense under this section for the defendant to prove by a
preponderance of evidence that he possessed or dealt with the weapon
solely as a curio or in a dramatic performance, or that, with the
exception of a bomb, grenade or incendiary device, he complied with the
National Firearms Act (26 U.S.C. § 5801 et seq.), or that he possessed
it briefly in consequence of having found it or taken it from an
aggressor, or under circumstances similarly negativing any intent or
likelihood that the weapon would be used unlawfully.

(2) This section does not apply to police forensic firearms experts or
police forensic firearms laboratories. Also exempt from this section
are forensic firearms experts or forensic firearms laboratories
operating in the ordinary course of business and engaged in lawful
operation who notify in writing, on an annual basis, the chief or head
of any police force or police department of a city, and, elsewhere, the
sheriff of a county in which they are located, of the possession, type
and use of offensive weapons.

(3) This section shall not apply to any person who makes, repairs,
sells or otherwise deals in, uses or possesses any firearm for purposes
not prohibited by the laws of this Commonwealth.

(c) DEFINITIONS.– As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

“Firearm.” Any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon.

“Offensive weapons.” Any bomb, grenade, machine gun, sawed-off shotgun with a barrel less than 18 inches, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, any stun gun, stun baton, taser or other electronic or electric weapon or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

(d) EXEMPTIONS.– The use and possession of blackjacks by the following persons in the course of their duties are exempt from this section:

(1) Police officers, as defined by and who meet the requirements of the
act of June 18, 1974 (P.L. 359, No. 120), referred to as the Municipal
Police Education and Training Law.

(2) Police officers of first class cities who have successfully
completed training which is substantially equivalent to the program
under the Municipal Police Education and Training Law.

(3) Pennsylvania State Police officers.

(4) Sheriffs and deputy sheriffs of the various counties who have
satisfactorily met the requirements of the Municipal Police Education
and Training Law.

(5) Police officers employed by the Commonwealth who have
satisfactorily met the requirements of the Municipal Police Education
and Training Law.

(6) Deputy sheriffs with adequate training as determined by the
Pennsylvania Commission on Crime and Delinquency.

(7) Liquor Control Board agents who have satisfactorily met the
requirements of the Municipal Police Education and Training Law.

Early Termination of Parole or Probation & Early Parole

Brian Zeiger — Sun, 25 Oct 2009 19:19:05 +0000

Early Termination of Parole and Probation & Early Parole. Parole is the part of a sentence that is the when a person is released from custody but has not maxed their sentence. An example of this concept is where a person is given a sentence of 6-23 months in the county. After 6 months passes, the person is paroled. That means the person is on parole for the next 17 months. During parole, the must report to an officer to ensure their behavior is good.

Probation is where the sentence, or part of the sentence, is for the person to remain on the street, but to report to an officer to ensure their behavior is good.

If someone is in jail serving their sentence and they want to get out of jail earlier then their minimum date, or they haven’t been paroled at their minimum date, you can file a petition with the sentencing judge called an early parole petition and ask the judge to allow the person to be paroled earlier then had been intended.

If someone is on the street on probation or parole, you can file a petition with the judge for early termination of the probation or the parole.

Note that these petitions are only filed when the sentencing power is with the state court judge and not with the Pennsylvania Department of Corrections. Also, note that parole petitions are usually granted when someone has been in jail, been on good behavior, completed all of the classes they are supposed to complete, and have served their minimum. Also, early termination of probation petitions are usually granted when someone got a very long probation tail to their initial sentence and during the course of the probation they have truly changed their lifestyle, paid all of their fines and costs, paid all restitution, and can show the judge that they are truly worthy of being released from supervision.

Pardon

Brian Zeiger — Fri, 04 Sep 2009 20:02:51 +0000

In Pennsylvania, if you are convicted of a felony or a misdemeanor, you can not get your record expunged, you must get a pardon. A pardon is sometimes referred to as clemency. If someone is in custody serving a death sentence, they can ask to have their sentence commuted to a life sentence. If someone is serving a life sentence or a sentence to a term of years, you can ask to have your sentenced commuted, you would be released but have the conviction remain.

To get a pardon, comutation or clemency in Pennsylvania, you must fill out an application. After the application, you must wait to hear if you get a hearing. At the hearing you must get three yes votes to get a recommendation for the pardon or commutation.

In reviewing a case for a pardon, I consider four factors. The first three are: why does the person need a pardon, why does the person deserve a pardon, what has the person done to give back to society.

The fourth factor is the individual’s view of the crime that occurred. The individual can say either that the crime occurred and accept full responcibility for the act, or in the alternative deny the act and have the crime reinvestigated. Obviously, the latter would be exceedingly difficult to show.

Disorderly Conduct can be a Misdemeanor or a Summary offense

glevin@hlzlaw.com — Fri, 21 Aug 2009 14:56:19 +0000

I have spoken to many people who are confused about why they are charged with a misdemeanor when their only offense is disorderly conduct. The simple answer is the gradation of the offense depends on how disorderly you were. A person is generally guilty of disorderly conduct if “with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) engages in fighting or threatening, or in violent or tumultuous behavior; (2) makes unreasonable noise; (3) uses obscene language, or makes an obscene gesture; or (4)creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.”

The gradation for the above described activity is as follows “An offense under this section is a misdemeanor of the third degree if the intent of the actor is to cause substaintial harm or serious inconvenience, or if he persists in disorderly conduct after reasonble warning or request to desist. Otherwise disorderly conduct is a summary offense.“

In my experience people are almost always charged with disorderly conduct as a summary. The times where I see the commonwealth pursue the misdemeanor is when the defendant’s behavior is extraordinary or where it is done in a highly populated public area. It is difficult to cause substantial harm or serious inconvenience when you are by yourself or with only a small group of people. I hope this helps clear up some of the confusion.

Fugitive from Justice – Extradition

Brian Zeiger — Thu, 20 Aug 2009 15:01:37 +0000

If you are in Pennsylvania and you are wanted in another state, you could be extradited to that other state. If you are picked up by the police, you will be processed and arrested for Fugitive from Justice (“FOJ”). Pennsylvania is one of the only states in the country that sets bail on FOJ cases. That is a good thing because many states set no bail on these cases and therefore the person stays in jail the entire time they are awaiting extradition.

Once the person has been charged with FOJ, the Philadelphia court system gives the extraditing state 90 days to produce a governor’s warrant. If there is no governor’s warrant the case is dismissed. If a governor’s warrant is produced, a judge in Philadelphia then holds a hearing to determine whether the defendant is the person who is wanted in the warrant. If the judge determines that the person on the governor’s warrant is not the defendant on the FOJ, the case is dismissed.

If the judge determines the person on the governor’s warrant is the defendant, the judge will order the person held for 30 days or until the other states comes in and picks-up the defendant to effect the extradition.