According to local reports, a judge in Northampton County Pennsylvania has suspended the driver’s license of some of those suspected for DUI, even before the matter has been resolved in court:
Suspending a driver's license in a DUI case before a court ruling is unconstitutional.
Policy of taking licenses before a DUI conviction draws critics
The Salisbury Township woman insisted she was innocent of allegations she had driven drunk, and she wanted her day in court. Fine, the Northampton County judge told her, but until your trial in February, I’m taking your driver’s license.
If convicted, 25-year-old Jessica D. Trump would lose her privilege to drive. But that she would lose it before, without being found guilty, bothers her attorney and other defense lawyers, and even county prosecutors are distancing themselves from the strategy.
“Isn’t taking the license a presumption of guilt?” asked Trump’s attorney, Jason Jenkins of Allentown. “Because it sure feels like it.”
To speed along DUI cases and protect other drivers on the road, Judge Leonard Zito, who oversees the criminal court docket in Easton, has been taking the licenses of defendants he believes are dragging their feet in resolving the charges against them.
Zito’s move aims to encourage them to plead guilty or apply for court diversionary programs that avoid a trial. It is part of an effort to get a handle on DUI cases, which make up nearly 35 percent of the court’s docket. But it raises constitutional questions about whether the judge is truly treating defendants as innocent until proven otherwise.
As a citizen of Pennsylvania I believe the actions of this judge, as described in this news report are wrong for the following reasons:
- The purpose of bail is to insure appearance and to protect the community and not to “move cases along.” The purpose of bail is not supposed to be punitive.
- A license suspension is a major form of punishment. In Central Pennsylvania there is a complete lack of public transportation infrastructure. So taking an accused driver’s license is punishment. It can affect the ability of the citizen to get to and from their place of work which may result in a loss of employment or other long-term consequences. This type of punishment should not be put upon anyone until the matter is resolved in a court of law. I still believe that we live in a time of the presumption of innocence.
- The right to a trial is a basic fundamental right. Any effort that is made to curtail a person’s right to trial is unAmerican. The loss of license is a major incentive to just “give up.” Otherwise, legitimate cases that should be tried will not be tried or negotiated to a proper resolution.
- The rationale behind this action, “to encourage them to plead guilty or apply for court diversionary programs that avoid a trial” is strong arm tactic that forces citizens to choose another option under duress rather than opting for a trial which is their constitutional right. It is a form of pre-trial tax.
- If the State is overwhelmed with the number of DUI cases, then punishing the accused prematurely is not the answer. The State should hire extra judges to ensure that every citizen receives a fair trial and is not pressured through unconstitutional tactics.
If you are involved in a DUI case where the judge has suspended or has threatened to suspend your license before the matter has been ruled upon, please call 1-866-MCSHANE. We are ready to fight for your constitutional rights!
DUI is not a minor criminal offense. The Commonwealth of Pennsylvania has attached very heavy penalties to DUI charges which means even a first offense can lead to jail time, hefty fines and a lengthy license suspension. On top of all of that, your insurance premiums will increase and you may lose out on job opportunities because of a DUI conviction. In a tough economy and competitive job market, many people have been “blacklisted” and ultimately ignored because of a recent DUI conviction-even if it is the only blemish on their criminal record. Losing out on a good job is a tragedy with immeasurable damages.
A true Pennsylvania DUI attorney will fight DUI cases to trial to protect your rights.
With the stakes so high, you need an the right DUI attorney to handle your case. You need an attorney with the experience and guts to fight. Many well known DUI lawyers in Pennsylvania have been practicing for 10, 15, 20 years and have not taken a single DUI case to trial. That is a clerk, a paper pusher… not a real DUI attorney.
A real DUI attorney has the guts to fight out your case all the way to trial and all the way to “not guilty.” To be a true DUI trial lawyer, one must have specialized training in the science involved in DUI cases and specialized knowledge in trial skills to know how to effectively translate the science to the jury so they are empowered to understand it. One must also have excellent trial skills and have a proven track record of taking cases to trial and winning them in front of a judge and jury.
If you want to find out if a lawyer is a true DUI specialist, ask them one question, “How often do you take DUI cases to a full blown trial?” You will be surprised at some of the answers you get.
At The McShane Firm, our highly experienced DUI attorneys regularly take cases to trial because we see this as one of the best ways to protect the rights of our clients. If you want to fight your Pennsylvania DUI charges, please call 1-866-MCSHANE.
If you were one of the many Pennsylvania drivers who were arrested for DUI over the holidays, then this is probably a very confusing time for you. The fact of the matter is, many people arrested for DUI have no previous criminal history and this is their first experience with the criminal justice system. As experienced Pennsylvania DUI Lawyers, we advise you to find the very best legal representation you can hire to ensure your rights are protected. DUI is not a minor offense. If convicted you will face stiff punishments and this conviction will remain on your permanent criminal history for FOREVER.
The Pennsylvania DUI Lawyers at The McShane Firm have the Knowledge, Experience and Dedication to Fight Your Case
The time is act is now. Do your research and find the most experienced lawyers you can find. The best DUI lawyer for you should have real courtroom DUI experience. The best DUI lawyer for you should routinely be taking DUI cases to trial and fighting them. The best DUI lawyer for you should be one who is well-respected by his or her peers with public endorsements and multiple invitations to speak across the nation. The best DUI lawyer for you should be one who has many different testimonials from former satisfied clients. If you find an attorney who does not regularly take DUI cases to trial, does not have the public respect of his or her peers, does not have a ready list of satisfied former clients or does not speak nationally to other lawyers, scientists, judges and policy-makers, then you are best served looking elsewhere because it is clear that this attorney is not interested in becoming the best, is not the best and is not routinely utilizing all the legal options available for the good of their clients.
At The McShane Firm we are committed to excellence in DUI defense. We guide ourselves by three core values:
Knowledge: We attend intensive DUI training seminars that focus on the laws and science in DUI cases. No attorney in Pennsylvania has a training resume that can match ours.
Experience: We take DUI cases to trial on a regular basis. No law firm in Pennsylvania takes as many DUI cases to trial as the attorneys at The McShane Firm. We have fought DUI homicide, DUI death, Homicide by Vehicle while DUI, Aggravated Assault by Vehicle While DUI, DUI accident, DUI drug, DUI-CDL, DUI underage and frankly every type of DUI case you can imagine.
Dedication: We are ready to use every legal avenue to defend your rights. We are not a plea mill and we limit the number of cases that we take in a year and handle at any one time to make sure that we have the time and the ability to fight for you. We have an experienced a dedicated support team, a full-time private investigator and a dedicated DUI appeals team and we are ready to use all these resources to fight for you.
If you want to protect your liberty and defend your rights- call 1-866-MCSHANE for a free, detailed case evaluation.
At The McShane Firm, we pride ourselves on having the the hardest working, most dedicated DUI Attorneys in Pennsylvania. Recently, Attorney Shawn Dorward secured a total not guilty verdict in a DUI case for a client he had been defending for almost two years. Most importantly, Attorney Dorward was able to secure a “not guilty” verdict by highlight the truth of the matter.
The Facts
Attorney Dorward Brilliantly Defends PA DUI Case Based on the Truth
Mr. H was charged with a fourth offense Pennsylvania DUI: Refusal within the last ten years. He was observed by the arresting officer to have violated numerous traffic offenses including almost striking another vehicle. A vehicle stop was made and when requested, Mr. H performed several field sobriety tests. The officer noted that Mr. H performed unsatisfactorily on all tests and was non-compliant. Back-up was called to the scene. The officer also testified that Mr. H was hard to understand and seemed confused throughout his investigation. Mr. H was placed under arrest and taken to the hospital for a blood draw. The O’Connell Warnings and Implied Consent form was read to Mr. H and given to him to review. Due to Mr. H’s continued non-compliance with the officer he noted him as a refusal.
At trial Mr. H was called to the stand and informed the Court that he was in special education classes and had a hard time reading and writing. He was then given the O’Connell Warnings and Implied Consent form to read to the jury, which he could not. A friend of Mr. H’s also testified to Mr. H’s level of education and the need for Mr. H to have assistance in several areas of his everyday life Therefore, there was no way Mr. H could understand the charges against him and should not be charged with a DUI refusal.
After three and a half hours the jury came back with a not guilty verdict.
This case highlights the need for an experienced DUI attorney who can defend you based on the truth. Juries today are very knowledgeable about the issues and cannot be tricked by “smoke and mirrors” games. The truth wins cases.
If you are looking for an aggressive PA DUI attorney to defend your case, call 1-866-MCSHANE.
People who have never had any legal trouble always wonder what is court like?
When the Government Gangs up to take your rights away, call the PA DUI Attorney who can put them in their place.
Well, nothing in life is fair and the justice system is no different, especially when you are dealing with a DUI. When you step into court to fight a DUI charge, you are up against a strong, experienced gang of professionals with seemingly limitless resources all focused on putting you in jail. This is not a level playing field.
Here are the cast of characters they have lined up against you:
Government Prosecutor- The prosecuting attorney you will face is someone who has prosecuted hundreds if not thousands of DUI cases. They know the ins and outs of the court system and know how to use the law to their advantage. Most don’t care if you are really guilty or not, their focus is on winning and getting you convicted.
Police Officers- When in uniform jurors see police officers as trustworthy upholders of the law when in fact some lie through their teeth to get a conviction. All police officers are professional witnesses who have testified many times before and are coached on how to testify in an effective an believable way. When they testify, they will give an account of the events which sounds nothing like the way you remember it and is exaggerated, but not to your benefit.
Forensic Experts- Lab technicians are also seen as trustworthy scientists when in fact some are unreliable and biased. Most are supremely undereducated. While it should be their mindset to search for the correct result, most lab technicians see it as their job to produce positive results- regardless of the truth. After all, the lab techs are on the government payroll and do what they can to support the prosecution.
The government also has seemingly endless resources.
Against a team as dangerous as this you need a professional defense lawyer to fight for you. You need someone who has the experience to match and exceed the prosecution, the aggressive attitude to cross-examine the police, and the scientific knowledge to expose the junk science coming out of the crime labs. If you want to protect your rights call the firm that has the knowledge and guts to stand up, fight and win. Call 1-866-MCSHANE.
You have a constitutional right to a trial if you are charged with a DUI in Pennsylvania. However, the sad reality is that most attorneys do not take DUI cases to trial. In fact, I know of some attorneys who have two decades worth of experience and have never taken a DUI case to a suppression hearing, let alone a full blown trial.
The PA DUI Attorneys at The McShane Firm regularly take DUI case to trial.
At The McShane Firm, we are different. We use every possible inch the law allows to defend our clients. We regularly take DUI cases to trial and have an impeccable record of success and professionalism in the courtroom. We are experts on DUI blood and breath testing and aggressively cross-examine the so-called “forensic experts” the state relies on to convict you. We have our own private investigator to help us uncover the facts of your case that the police may be hiding. We regularly attend advanced DUI training to perfect our techniques and learn from the very best DUI attorneys in the world. We have fought DUI cases in Magisterial District Justice courts, Courts of Common Pleas, the Commonwealth Court, The Superior Court of Pennsylvania, The Supreme Court of Pennsylvania and have even participated in a DUI case in front of The Supreme Court of The United States.
We are totally committed to providing you with the best DUI defense in PA. No attorney in the state can match our experience, knowledge, resources and passion to protect your rights. If you or a loved one is charged with a DUI in PA, call 1-866-MCSHANE for a free consultation with an expert PA DUI Attorney.
The Supreme Court Announces its Decision in Bullcoming v. New Mexico in Favor of the Petitioner
The Supreme Court of the United States has reversed the decision in the case of Bullcoming v. New Mexico siding with the argument that the prosecution using a surrogate forensic analyst who was not involved in the actual testing is in violation of The Confrontation Clause.
PA DUI Attorney Justin McShane worked on the amicus brief in the landmark case of Bullcoming v. New Mexico before the U.S. Supreme Court
As a foremost expert in gas chromatography, PA DUI Attorney Justin McShane was one of the lawyer-experts who co-authored the amicus brief in this case and The Court favored amici arguments in its opinion. The credit goes to Professor Jeffrey Fisher who framed, wrote and argued successfully not only this case but all of the other Confrontation Clause wins. The influence of the amicus brief that McShane co-authored with Lenny Stamm, Ron Moore, Barbara Bergman, Molly Schmidt-Nowara and Alexandra Freedman Smith could clearly be seen throughout and in particular here:
Gas chromatography is a widely used scientific method of quantitatively analyzing the constituents of a mixture. See generally H.McNair & J. Miller, Basic Gas Chromatography (2d ed. 2009) (hereinafter McNair). Under SLD’s standard testing protocol, the analyst extracts two blood samples and inserts them into vials containing an “internal standard”—a chemical additive. App. 53. See McNair 141–142. The analyst then “cap[s] the [two] sample[s],” “crimp[s] them with an aluminum top,” and places the vials into the gas chromatograph machine. App. 53–54. Within a few hours, this device produces a printed graph—a chromatogram—along with calculations representing a software-generated interpretation of the data. See Brief for State of New Mexico Dept. of Health, SLD as Amicus Curiae 16–17.
Although the State presented testimony that obtaining an accurate BAC measurement merely entails “look[ing] at the [gas chromatograph]machine and record[ing] the results,” App. 54, authoritative sources reveal that the matter is not so simple or certain. “In order to perform quantitative analyses satisfactorily and . . . support the results under rigorous examination in court, the analyst must be aware of, and adhere to, good analytical practices and understand what is being done and why.” Stafford, Chromatography, in Principles of Forensic Toxicology 92, 114 (B. Levine 2d ed. 2006). See also McNair 137 (“Errors thatoccur in any step can invalidate the best chromatographic analysis, so attention must be paid to all steps.”); D. Bartell, M. McMurray, & A. ImObersteg, Attacking and Defending Drunk Driving Tests §16:80 (2d revision 2010) (stating that 93% of errors in laboratory tests for BAC levels are human errors that occur either before or after machines analyze samples). Even after the machine has produced its printed result, a review of the chromatogram may indicate that the test was not valid. See McNair 207–214.Nor is the risk of human error so remote as to be negligible. Amici inform us, for example, that in neighboring Colorado, a single forensic laboratory produced at least 206 flawed blood-alcohol readings over a three-year span, prompting the dismissal of several criminal prosecutions. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 32–33. An analyst had used improper amounts of the internal standard, causing the chromatograph machine systematically to inflate BAC measurements. The analyst’s error, a supervisor said, was “fairly complex.” Ensslin, Final Tally on Flawed DUI: 206 Errors, 9 Tossed or Reduced, Colorado Springs Gazette, Apr. 19,2010, p. 1 (internal quotation marks omitted), available at http://www.gazette.com/articles/report-97354-police-discuss.html . (All Internet materials as visited June 21, 2011, and included in Clerk of Court’s case file).
This is yet another milestone in Attorney McShane’s illustrious career as a DUI expert attorney and speaks volumes about his experience and knowledge. While most lawyers in Pennsylvania have never taken a DUI case to trial, Attorney McShane has helped fight and win DUI cases and provided input in The Supreme Court of the United States that has now had a global impact on all DUI prosecutions throughout the United States.
If you are looking for an experienced Pennsylvania DUI Attorney to handle your case, choose the best- choose The McShane Firm at 1-866-MCSHANE.
At The McShane Firm, we understand that details win cases. This is why we conduct a detailed interview with all incoming clients because we want to position ourselves to win from the get go. Our PA DUI attorneys don’t believe in taking the easy way out. We believe in fighting to secure the best possible outcome for your case, to protect you and your rights.
At The McShane Firm we care about you and how a PA DUI will effect your future.
When you sit down with one of our client intake specialists, the first question they will ask you is: What is it about a potential conviction that scares you the most? This is where we start, with your feelings and your personal situation because we sincerely care about YOU and how this case will effect YOUR future. We know that every case is different and that every case needs to be treated with priority, with great skill and most of all with care because whether it’s a first time DUI or a DUI homicide, this case is the most important issue facing you today. No matter how many cases we handle, we give every client and every case our full and undivided attention.
From the beginning we get into the details of your case, where did the incident take place? Who was the officer? Were you arrested? Details are especially important in DUI cases where, often times, there is no physical evidence and the basis for arrest lies on the opinions of the police officer. If we need additional details and information, we have a full-time in-house private investigator who knows how to collect the critical evidence needed to help build your case. Many times it is a single issue that may cause the case to turn in your favor and our PA DUI lawyers are astute and experienced so they can identify potential issues and knowledgeable and tactful enough to be able to challenge those issues in court.
We care about you and this is where we differ from other law firms in Pennsylvania. If you are looking for a DUI lawyer who is willing to fight for you, please call 1-866-MCSHANE to experience the difference.
In our series: The PA DUI Attorney Challenge, we propose a number of clues a common citizen can use to determine who is the best DUI lawyer in Pennsylvania. Today we look at The Use of Expert Witnesses.
PA DUI Attorney Justin McShane not only takes DUI cases to trial but is one of the few lawyers in PA who uses expert witnesses.
As we discussed in a previous post, there are thousands of DUI attorneys in PA but only a select few Pennsylvania lawyers who regularly take DUI cases to trial. At The McShane Firm, we have found that fighting DUI cases all the way to trial has helped us to protect the rights of many of our clients and to minimize or eliminate altogether the accusations.
At trial, it is important to critically examine all of the evidence the prosecution has. To successfully accomplish this, we often call on expert witnesses to testify as to why the evidence may not be reliable or may not support the conclusions brought forth by the Commonwealth. Expert witnesses are extremely helpful particularly when challenging DUI blood test, SFSTs, and for accident scene reconstruction. Keep in mind, the Commonwealth of Pennsylvania will bring forth forensic evidence and has its own experts to attempt to validate its conclusions. This makes it necessary for the defense to counter with expert witnesses to challenge their evidence and theories. We have seen many DUI cases where the testimony of an expert witness was the defining moment of the trial leading to a Not Guilty verdict.
If you are considering a particular attorney to represent your PA DUI case, be sure to ask them about whether or not they use expert witnesses in DUI trials and when was the last time they actually called upon an expert witness.
We have done a number of posts in our series The PA DUI Attorney Challenge with the intention of arming citizens with a criteria by which they can compare the various DUI lawyers in Pennsylvania. If you are new to this blog or have not had a chance to follow this series, please click on The PA DUI Attorney Challenge. Today we introduce yet another distinction that can help you determine who is the best DUI lawyer for your case: Pennsylvania DUI Appeals.
Very few attorneys actually take DUI cases to trial. We fight DUI cases in courtrooms all over PA. Beyond that, we are one of the select law firms in the state who actually appeal DUI cases.
PA DUI Attorney Justin McShane has won numerous DUI Appeals
Appealing DUI cases is normally tougher than the original trial because in an appeal there is a significant burden to overturn a conviction. At this point the default position is the guilty verdict given by the lower court. Successful appellate litigating before the Pennsylvania Superior Court, Commonwealth Court or Supreme Court require superior research skills and that is why we have a dedicated DUI appeals team to help research cases, file the necessary briefs and actually argue the cases. Appellate cases also require a skilled litigator who has the knowledge and reputation to argue before appellate courts. Attorney McShane has not only argued DUI cases in Pennsylvania’s appellate courts, he has also co-authored an appeals motion before the Supreme Court of the United States.
Below is a list of some Attorney McShane’s notable DUI appeals:
Bullcoming v. New Mexico: Appeal to the Supreme Court of the United States
Co-authored with Leonard Stamm, Esquire, and Ron Moore, Esquire the National College for DUI Defense, Inc.¹s amicus curiae brief to the Supreme Court of the United States in the case of Bullcoming v. New Mexico 09-10876.
Commonwealth v. Zerphey: Total acquittal of DUI charges in PA Superior Court
Commonwealth v. Zerphey (936 MDA 2009) After Mr. Zerphey was originally charged with a violation of section 3802(a)(1) (being incapable of safe driving) and 3802(c) (DUI Highest Rate with BAC over 0.16), Mr. Zerphey was found not guilty at trial as to the incapable of safe driving count, but guilty as to the lesser charge of DUI high Rate (BAC greater than 0.10 but less than 0.16). At trial Attorney McShane argued that the testing method of the Good Samaritan Hospital did not result in a whole blood BAC expression. Pennsylvania law requires that the BAC be an expression of whole blood. Post-sentencing motions were denied by the trial court. The panel of Justice at the Superior Court agreed with Attorney McShane’s original contention that scientifically and factually the result that produced by the Good Samaritan Hospital is not that of whole blood and that no conversion factor was introduced as required. As a result, the Superior Court overturned the conviction. Mr. Zerphey was totally acquitted of all charges.
Commonwealth v. Longenecker: DUI charges overturned by trial court after conviction by successful challenge of hospital non-whole blood testing
Commonwealth v. Longenecker (PDF) After a finding of guilt as to the DUI per se charge of having a BAC above 0.16, the lawyers at the McShane Firm argued in a post-sentencing motion that the evidence was legally insufficient to sustain a conviction as to this most serious count of DUI. The trial court agreed and overturned the conviction. In doing so the trial court evaluated the Blood Alcohol Content (BAC) testing used in Lebanon County and held that the BAC testing that is used in is an indirect enzymatic test of the supernate. It is not a test of an accused’s whole blood. When the non-whole blood is tested, the scientific community acknowledges that the result is not only inaccurate but inflated and over-reported as was argued in court. Pennsylvania DUI law requires that there be a BAC based upon whole blood, not what was tested by Good Samaritan Hospital. This type of scientific-based challenge has been advanced before with success leading the WellSpan-related and later the Geisenger-related hospitals to stop offering testing in their hospitals for police prosecution. On November 12, 2009, the hospitals issued a press release announcing this. The Superior Court of Pennsylvania, who evaluates trial court decisions, has repeatedly found this method to be insufficient as a matter of law. (A recent unpublished opinion and a published one- Commonwealth v. Renninger, 682 A.2d 356 (Pa. Super. 1996)) For greater information, you are referred to The McShane Firm’s Pennsylvania DUI Law Blog.
Commonwealth v. Lutz: DUI charge dismissed by successful challenge of whole blood testing
Commonwealth v. Lutz (PDF) At trial the District Attorney’s Office presented the lab technologist from the Good Samaritan Hospital (GHS) who performed chemical testing on Mr. Lutz’s blood. The GHS staff reported the results as a whole blood result. After skillful cross-examination, the Attorneys of the McShane Firm exposed this assertion that it was a whole blood result as being inaccurate. Under Pennsylvania law in order for there to be a conviction, an accused’s Blood Alcohol Content must be expressed in terms of whole blood. A Motion for Judgment of Acquittal was made and granted by the trial court resulting in the per se DUI count being dismissed.
Commonwealth v. Jennifer Barton Martin: DUI Conviction Overturned
Commonwealth v. Jennifer Barton Martin (— A.2d —-, 2010 PA Super 163) The Superior Court of Pennsylvania, a three judge panel with no dissenting opinions held that the Supreme Court of the United States opinion in Melendez Diaz applied even though the accused subpoenaed the technologist and the phlebotomist presenting both in our case-in-chief. The clear ruling states the following:
- Melendez Diaz is retroactively applied.
- Under Federal Constitutional Confrontation Clause rights, the Commonwealth during its case-in-chief must call the analyst. It expressly overruled Carter and Kravontka which were our state¹s previous precedent.
- Failure to do #2 even if the defense in its case calls the analyst, does not cure Confrontation violation.
- A result is not a new trial, but vacating of the conviction with jeopardy.
The Court ruled as follows: ³Because the Commonwealth did not summon at trial the analyst who prepared Appellant¹s lab report, we conclude that Appellant¹s rights under the Confrontation Clause were violated and that the lab report showing her blood-alcohol content was inadmissible. Without that evidence, Appellant¹s conviction under § 3802(c) cannot stand and we therefore vacate her judgment of sentence as to that offense.²
Commonwealth v. Justin Tobery: Insufficient Probable Cause to Arrest for a DUI
Commonwealth v. Justin Tobery (908 MDA 2009) The Superior Court of Pennsylvania held that a two vehicle accident involving serious bodily injury of the other motorist on an icy road where the officer noticed an odor of alcohol alone with no other indicia of intoxication present was insufficient probable cause to arrest for a DUI.
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