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.
In our series What to Expect if You’re Expecting a DUI, we are taking an in depth look at the process you can expect to face if charged with a DUI in Pennsylvania. Last week we took a look at the Omnibus Pre-Trial Motion, and noted that this is an all encompassing motion wherein the accused asks the Court to examine certain aspects of the case to determine whether or not there was a violation of the state constitutional right or federal constitutional right or a violation of the developed case law. In a DUI context it typically surrounds challenging five (5) primary areas:
(1) the lawfulness of the traffic stop and subsequent detainment of the individual,
(2) whether or not there was sufficient Probable Cause to arrest,
(3) the lawfulness and the validity of the chemical demand to provide evidence of a BAC,
(4) the validity or the propriety of the alleged reported BAC result or alleged refusal, and
(5) anything else that is suitable.
In today’s post, we will examine the first point “the lawfulness of the traffic stop and subsequent detainment of the individual.”
Can they pull me over for a DUI just because I weaved? Is it a legal stop? Great questions one and all. It really comes down to the large difference between an investigable offense and a stop based upon that and a non- investigable stop.
In Commonwealth v. Chase, the Pennsylvania Supreme Court enunciated the proper standard required for a valid vehicle stop in light of substantial confusion surrounding this issue. Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108 (Pa. 2008). Prior to Chase, in 2004, the Pennsylvania legislature had amended 75 Pa. C.S.A. §6308(b) to require police officers to possess only “reasonable suspicion” that a Motor Vehicle Code violation is occurring or has occurred for a valid vehicular stop. Previously, 75 Pa. C.S.A. §6308 had required police officers to possess “articulable and reasonable grounds” of a Motor Vehicle Code violation in order to effectuate a valid traffic stop. 75 Pa. C.S.A. §6308(b).
Following the enactment of 75 Pa. C.S.A. §6308(b), the Pennsylvania Superior Court applied the newly enacted “reasonable suspicion” standard. The Pennsylvania Supreme Court, on the other hand, disregarded the “reasonable suspicion” standard and continued to require the existence of probable cause. In doing so, the Pennsylvania Supreme Court continued to apply its precedential decision in Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (Pa. 2001), where it had held that a police officer must possess probable cause to believe that the vehicle or the driver was in violation of some provision of the Motor Vehicle Code in order for the stop to be valid.
Due to the aforementioned inconsistent approaches and analysis taken, the Pennsylvania Supreme Court addressed the confusion surrounding this oft-argued issue in Chase and determined whether the 2004 amendment of 75 Pa. C.S.A. §6308 was constitutional. In Chase, the police officer arrested the defendant for DUI after he observed the defendant’s vehicle cross the center line for several seconds while speeding. Chase, 599 Pa. at 86-87,960 A.2d at 111. The police officer had followed the defendant’s car and observed it cross the right fog line and center line for several seconds and then make a wide right turn. Id. at 87, 111. The defendant in Chase filed an Omnibus Pre-Trial Motion to suppress all evidence obtained after the traffic stop and argued that the stop itself was unconstitutional, because 75 Pa. C.S.A. §6308 required only reasonable suspicion for a police officer to effectuate a traffic stop. Id. In light of these events, the trial court granted the defendant’s suppression motion and concluded that both the federal and Pennsylvania state Constitutions require probable cause to stop a vehicle for an alleged Motor Vehicle Code violation and, in doing so, rendered 75 Pa. C.S.A. §6308(b) unconstitutional. Id. The Commonwealth subsequently appealed directly to the Pennsylvania Supreme Court.
In reaching its decision in Chase, the Pennsylvania Supreme Court looked to federal circuit decisions on this issue, which had consistently held that a vehicular Terry stop to permit the investigation of suspected criminal activity was constitutional. Chase, 599 Pa. at 91-92, 960 A.2d at 114. In doing so, it held that an investigatable stop such as DUI is to be analogized to a Terry-style stop because both are conducted so that the officer can “secure such other information as the officer may reasonable believe to be necessary to enforce the provisions [of the Vehicle Code]. Id. at 80, 108. It stated that, “[i]f reasonable suspicion exists, but a stop cannot further the purpose behind allowing the stop, the ‘investigative’ goal, as it were, it cannot be a valid stop.” Id. at 92, 115.
The Chase Court further explained, stating “[p]ut another way, if the officer has a legitimate expectation of investigatory results, the existence of reasonable suspicion will allow the stop – if the officer has no such expectations of learning additional relevant information concerning the suspected criminal activity, the stop cannot be constitutionally permitted on the basis of mere suspicion.” Id. (emphasis added). Therefore, an investigatory stop based on suspected DUI requires only reasonable suspicion, because, as the Court explained, a DUI stop is “a scenario where further investigation almost invariably leads to the most incriminating type of evidence, i.e. strong odor of alcohol, slurred, speech and blood shot eyes.” Id. Moreover, “[s]uch evidence can only be obtained by a stop and investigation.” Id. On the other hand, the Chase Court indicated that, where the stop was not made for an investigatory purpose, probable cause is required for a valid vehicle stop. Id. Thus, vehicle stops premised upon things such as speeding, running a red light, driving the wrong direction on a one-way street require that a police officer possess probable cause at the time of effectuating the traffic stop to be constitutionally valid. Id. at 93, 115. Such stops, explained the Court, would not yield any more evidence to aid in the officer’s determination of a Motor Vehicle Code violation. Id.
In summary, Chase held that a traffic stop based on reasonable suspicion was sufficient if there is something to investigate, such as a DUI. Id. On the other hand, a vehicle stop based solely on offenses that are not investigatable cannot be justified by a reasonable suspicion standard, because there is nothing further to investigate. Rather, “[a]n officer must have probable cause to make a constitutional vehicle stop for such offenses.” Id.
The best example is in the case of speeding. If you speed, it is a binary concept. You either did in fact speed or you did not. There is no maybe. There is no investigation into whether or not you did it. Either it happened or it did not. They can either prove this through using an acceptable and calibrated speed timing device that you did it or not. The officer pulling you over cannot further his investigation by stopping and asking you questions about it. In this example of speeding because speeding is non-investigable, the requirement is Probable Cause. If the Officer thinks or has a hunch that you are speeding, this is not probable cause as probable cause is defined as the required quantum of proof of facts or evidence (that actually exist-not based upon conjecture, guess or even an educated hunch) that would lead a reasonable person (using an objective standard) to believe that a suspect has committed a crime based upon the totality of the circumstances (weighing both the good and the bad).
Furthermore, in determining whether the officer conducting the stop of the vehicle had probable cause, the trial court should begin by examining the officer’s explanation of why he or she conducted the stop which should be seen only as a starting point. In Commonwealth v. Battaglia, the Superior Court concluded that the officer’s belief that the individual was driving his vehicle in an "erratic" fashion was not enough to rise to the level of probable cause required for a lawful detention of the individual. Commonwealth v. Battaglia, 802 A.2d 652, 655 (Pa. Super. 2002). In Battaglia, there were seven (7) factors which the officer presented to the court which included: "the defendant made a wide left turn," "the defendant appeared to cross over the white line during a wide left turn," and "the defendant’s vehicle crossed the broken white line from the right lane into the left lane." Id. Considering the three (3) previously mentioned factors combined with four (4) other factors the Superior Court held that the stop was unlawful, ordered suppression, and wrote that "perceived ‘erratic driving’ in and of itself is not a violation of the Code and, without more, does not provide probable cause to execute a traffic stop."
What does all of this mean?
This means that according to Pennsylvania Law, “erratic driving” observed by a police officer is not enough evidence to execute a traffic stop. Unfortunately, when police officers are cross-examined, many of them state their “probable cause as “suspect touched the fog line” or “car was weaving”. This in and of itself is not enough evidence to stop a car.Unfortunately, many “jack-of -all-trades” lawyers who represent DUI cases do not have the knowledge and experience to be able to challenge these issues in court. At The McShane Firm we have all gone through highly specialized DUI training and are able to effectively argue these issues in court.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter , Facebook or Linkedin.
We have been examining the steps in the process that a good Pennsylvania DUI Attorney would take in professionally and aggressively handling a Pennsylvania DUI. The next step you can expect to face is the preparing and filing of the Omnibus Pretrial Motion. In the Commonwealth of Pennsylvania, this must be filed within 30 days after the formal arraignment. An omnibus pretrial motion is a grand all encompassing motion wherein the accused asks the Court to examine certain aspects of the case to determine whether or not there was a violation of the state constitutional right or federal constitutional right or a violation of the developed case law. In a DUI context it typically surrounds challenging five (5) primary areas:
(1) the lawfulness of the traffic stop and subsequent detainment of the individual,
(2) whether or not there was sufficient Probable Cause to arrest,
(3) the lawfulness and the validity of the chemical demand to provide evidence of a BAC,
(4) the validity or the propriety of the alleged reported BAC result or alleged refusal, and
(5) anything else that is suitable.
In separate posts we will address each of these, but first we need to address some important background information that we will draw upon during the later discussions so it all makes sense. Under Article 1 Section 8 of the Pennsylvania State Constitution as well as the Fourth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment all people are to be free from unreasonable searches and seizures of their person. What is important at this point is to understand that if there is a violation of either Article I Section 8 or the Fourth Amendment there are dire consequences for the Government. It is called the "Exclusionary Rule".
Under the Exclusionary Rule if there is a violation of either or both of these provisions, all of the after acquired evidence (meaning everything that happens afterwards) is suppressed (meaning thrown out and cannot be used in trial). This in the vernacular of the day is sometimes referred to as "the fruit of the poisonous tree". This result, the total exclusion of everything afterwards, is intentionally harsh. It is deliberately designed to be a powerful prophylactic rule meant to literally teach the police by issuing extreme consequences on them to teach them to stop doing some prohibited action in the future. Believe me it works. In my opinion it is not used enough and applied with consistency, but nevertheless it is important arrow in the proverbial quiver of a talented and skilled DUI litigator.
For example, suppose there is a car that is traveling down the road and it is weaving only for a very brief moment in time WITHIN its own lane, but is not endangering other motorists or property. A police officer sees this momentary and minor weaving within the lane and stops the car based solely upon that and not a suspicion of DUI. He approaches the car. The driver is alone. The driver has a beer in his hand and a thirty pack with eight missing beer cans on the seat next to him with what appears to be a corresponding 7 missing empty crumpled beer cans on the floor (he has the eight one in his hand). He tells the officer that he is drunk as a skunk. He says that he has been driving drunk on purpose drinking and driving and has been drinking those 8 beers over the last two hours slamming the first several. As he gets out of the car, he can hardly stand. He exhibits all of the clues on the Standardized Field Sobriety Test and a Portable Breath Test. He is literally falling down drunk. He is arrested. He is Mirandized. He admits to everything giving a ton of details as to the who, the what, the where, the when and the how much he had been drinking as well as admitting that he is in perfect mental and physical health. All of this is recorded both visually and audibly on the police cruisers dash camera. He is taken down to the hospital and an absolutely perfect blood draw is performed. The blood tubes are stored perfectly, transported perfectly and the analysis of the blood is done perfectly yielding a result of .241 BAC as measured in whole blood by a perfect Gas Chromatograph with a Flame Ionization Detector.
What is the legal result? The initial encounter, the stop of the vehicle was illegal. Why? Because the driver swerving slightly within his own lane is not enough evidence to serve as probable cause for a DUI stop. Anyone who is perfectly sober can swerve slightly. Since there was not enough probable cause, the stop was illegal. As a result, everything after that is suppressed or thrown out. The beer in his hand, the thirty pack, the empties, the admissions of drinking, the information as to the who, the what, the where, the when and the how, everything he said to the officer, the dashcamera video and audio recording, the SFSTs, the PBT, and the blood results. All gone. Why? In the United States, the ends do not justify the means. The initial stop has to be wholly legal, otherwise the evidence gets suppressed.
The Exclusionary Rule is often referred to in a derogatory nature as a legal technicality, but it is so vitally important to the welfare and the safety of all citizens and is well rooted in our country’s not too distant past experiences with the abusive nature of absolute police power as wielded by the British against our colonist forefathers and mothers. After all, who wants to live in a world where the ends justify the means? The Exclusionary Rule applies to all persons within the United States regardless of whether they are citizens, immigrants (legal or illegal), or visitors. Next we will discuss in detail the Omnibus pretrial motion in the context of the initial detention and specifically in the context of a DUI meaning a traffic stop.
border="0" alt="Share/Bookmark"
src="http://static.addtoany.com/buttons/share_save_171_16.png" />
-Justin J. McShane, Esquire,
McShane">Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter ,
viewProfile=&key=36745950&trk=tab_pro">Linkedin.
The Discovery Phase
In my experience of representing thousands of DUI cases in Pennsylvania, I have found the discovery phase to be where the case is won or lost.
An informal request for discovery must be made within 14 days after the formal arraignment. In many Pennsylvania counties, judges are not very particular about enforcing these dates. During the discovery phase, the accused is allowed to copy, inspect, or examine evidence in the case. This includes, police reports, videos of the roadside DUI tests, blood alcohol tests and related information.
Technically, under both the United States and Commonwealth of Pennsylvania constitutions, along with Rule 573 of the Rules of Criminal Procedure, the prosecutor does not have to give us everything in a case that may be used against you (i.e., incriminating or inculpatory evidence), but rather must always give us evidence that could get you out of trouble (i.e., exculpatory evidence ) and impeachment material (e.g., evidence where someone says something one time and then changes his/her story the next time). However, in practice in Pennsylvania the accused typically is given access to everything.
DUI cases are won or lost depending upon information gathering and detail gathering. Details win cases. Lack of details loses cases. It is also during this period of time where we would issue subpoenas to try to get various documents and other items that may be relevant such as videos from a gas station that you stopped off at before the traffic stop that shows that you could walk fine and fill up your tank normally and get your credit card out of your wallet which requires fine motor function. It is armed with this total and complete detailed information that decisions can be made. With no information or incomplete information, a bad decision with unintended consequences can result. This is why the award winning staff at The McShane Firm is so important. It is the job of our staff to follow up and make sure all of the evidence is collected in a proper manner. It is this experience that allows our staff to collect evidence from oftentimes reluctant parties and it because of the evidence collected, that we are able to successfully defend so many DUI cases.
This phase typically takes months given the need to get all of the information from the various sources for any given case. It can be frustrating sometimes dealing with the Government as they may not want to be open. This will require us to file a Motion to Compel Discovery which asks the Court to intervene and require them to provide the sought after information causing more delay. Next we will discuss in detail the Omnibus Pretrial motion.
-Justin J. McShane, Esquire, Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter , Facebook or Linkedin.
In this series we take an in depth look at the legal processes and proceedings which take place after a person is charged with a DUI in Pennsylvania. Today’s post deals with the formal arraignment.
A formal arraignment is when the government, in this case the Pennsylvania County in which the accused was arrested, informs the accused of the details of the charges against him/her. It is the who, the what, the where and the when. This is also when the defendant offers his or her plea of “guilty” or “not guilty”. At the McShane Firm, we do not enter “guilty” pleas in DUI cases at Formal Arraignment.
Our strategy is always to plead “not guilty” and request a jury trial. There are many benefits to this approach:
If you plead guilty you will be found guilty 100% of the time. After examining the seriousness of these charges (please see our series “Why fight a DUI in Pennsylvania”) it is worth fighting the charges and working towards a more positive outcome. This plea gives us room to negotiate from a position of strength. Some prosecutors will offer a significantly better deal just avoid going through a lengthy jury trial. We get more time to examine the evidence. We might find out later on that there were some significant discrepancies in the blood alcohol tests for example. Sometimes, for example, police officers and key witnesses are not available and the prosecutor is forced to drop charges rather than present a flimsy case in court. Many times, even a seemingly strong DUI case, with blood tests and witnesses can simply blow up in front of a jury, leaving the judge to dismiss the case or the jury to find the defendant “not guilty”.
The date of the formal arraignment is important. Not so much in the event itself but in the time-line that is attached to it. There are certain very important motions that need to be filed by specific deadlines after the formal arraignment.
- A motion for a bill of particulars must be filed within seven (7) days after the formal arraignment. This is a request for the Commonwealth of PA to provide more details about the Who, What, Where, and When of the case. This is particularly important in more serious and complex cases. For example if someone was charged with a DUI that lead to serious injury or death, these details would be very important to defending that case.
- An informal request for discovery must be made within fourteen (14) days of the formal arraignment. An informal request for discovery is a request to obtain all of the police reports, videos, and test results collected by the police.
- An omnibus pretrial motion must be filed within thirty (30) days of the formal arraignment. An omnibus pretrial motion is a motion to suppress or dismiss charges due to a violation of rights or a substantive violation of due process. For example, if the police did not have sufficient legal reason to stop your vehicle, we would file an omnibus pretrial motion claiming that error. If the Court agreed with us, then the stop would be ruled illegal and all after acquired evidence, meaning the field tests, the BAC result and anything else that happened after the stop would not be permitted into evidence.
- In many counties in Central Pennsylvania, these deadlines are followed to the tee. Therefore, it is very important to file these motions in a timely manner and follow up with them properly.
border="0" alt="Share/Bookmark"
src="http://static.addtoany.com/buttons/share_save_171_16.png" />
-Justin J. McShane, Esquire,
McShane">Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter ,
viewProfile=&key=36745950&trk=tab_pro">Linkedin.
I am facing DUI charges, should I elect to take a Preliminary Hearing?
In Pennsylvania, you have a choice as to whether or not to “take” a Preliminary Hearing. As a lawyer who has represented thousands of DUI cases, I always recommend taking a Preliminary Hearing, especially in DUI cases. As I have mentioned before, in the Preliminary Hearing, the Commonwealth of Pennsylvania has the burden to prove that it has enough competent evidence to proceed with their prosecution. I have represented many, many DUI cases in which the police have had evidence (breath tests, blood tests, sobriety tests) that they believed was rock solid in proving a DUI, only to watch the case get dismissed due to inability to introduce the results, a hyper-technical reason and/or the facts in the case were just not enough. You can see many of these examples on my Avvo profile page.
The ostrich in the sand technique of ignoring it and hoping it will go away will not work. Similarly waiving the hearing and gaining no meaningful benefit will also not make it go away. IN fact, all you do is make it easier for the Government to convict you. It makes no logical sense to waive the preliminary hearing.
Another reason why the Preliminary Hearing is important in DUI cases is that it gives us a chance to see the caliber and quantity of the evidence that the Commonwealth of Pennsylvania has gathered against you. DUIs are mostly opinion based, meaning a single officer has to make the determination as to whether the driver was impaired. Therefore, it is important to get this officer’s testimony on the record so that he or she cannot change it later after the weaknesses in the case are exposed. Keep in mind, the lawyers at The McShane Firm are highly trained in DUI cases. We have more training than any police officer out on the road. We know where the police are making mistakes and cutting corners. It is our job to expose that when we cross examine them.
Should I testify at a Preliminary Hearing?
You have a right to testify during the Preliminary Hearing. You also have the full constitutional right not to testify. Furthermore, no one can stop you from testifying. I normally advise clients not to testify at the Preliminary Hearing for the simple reason that they have absolutely nothing to gain by testifying at this stage.
After the evidence has been examined, the Defense will give their closing arguments first. Our goal is to show that there is not enough evidence to move this DUI case to the next level, the Court of Common Pleas. The Commonwealth of Pennsylvania will argue next to show that they in fact do have enough evidence to continue to prosecute this DUI case.
As we move forward in this series, “What to Expect When You’re Expecting a DUI”, we will examine the next stage of the legal process which is the Formal Arraignment.
border="0" alt="Share/Bookmark"
src="http://static.addtoany.com/buttons/share_save_171_16.png" />
-Justin J. McShane, Esquire,
McShane">Pennsylvania DUI Attorney
I am the highest rated DUI Attorney in PA as Rated by Avvo.com
You can follow me on Twitter ,
viewProfile=&key=36745950&trk=tab_pro">Linkedin.
Connect with us:
Connect with Attorney McShane
Attorney Profile on TheMcShaneFirm.com
Justin McShane on Avvo
Justin McShane on FaceBook
Justin McShane on Google+
Justin McShane on JustiaJustin McShane on LinkedIn
Justin McShane on Super Lawyers
Justin McShane on Twitter
National College for DUI Defense- The Truth About Forensic Science
Videos by Justin McShane
