New Legislation

DUI Update: PA's New Ignition Interlock Law Takes Effect

Pennsylvania’s new Driving Under the Influence (“DUI”) Ignition Interlock Law took effect on Friday, August 25, 2017. We have written about the pros and cons of the new law previously, but prior to taking effect, the Pennsylvania Legislature modified the law so that it would bring many of the same advantages and disadvantages to recipients of the Accelerated Rehabilitative Disposition (“ARD”) Program. Unfortunately, the changes to make ARD defendants eligible for the Ignition Interlock License will not go into effect until October 2018. Additionally, most defense lawyers believed that the law would be applied retroactively to motorists who were already serving their suspensions when the law took effect. Based on recent guidance from PennDOT, it now seems clear that the DUI Ignition Interlock Statute will apply retroactively. This means that many motorists who are already serving DUI-related suspensions will be immediately eligible to obtain an Ignition Interlock device and have their driver’s licenses reinstated.

Pros and Cons of the New DUI Ignition Interlock Law

There are some significant pros and cons to the new law. In general, the law makes Driving Under the Influence Convictions more expensive by requiring even some first-time offenders to install ignition interlock devices on their vehicles. These devices can be costly, but the law does allow for subsidized interlock installations upon a showing of financial hardship. At the same time, the law provides many motorists with a way to keep their licenses or serve shorter driver’s license suspensions than those statutorily required in the absence of the law.

One of the biggest problems with Pennsylvania’s DUI statute is that it requires a one year driver’s license suspension for many first-time offenders, and Pennsylvania does not really offer the kinds of work licenses offered in other states. This means that a DUI would ordinarily cause many people to lose their jobs if they drive for a living or need to drive to and from work. This is a problem even for criminal defendants who are accepted into the ARD program as even ARD requires a sixty day driver’s license suspension for a motorist who blew above a .16 or had drugs in their system. The law solves some of these problems by allowing many drivers to keep their licenses while at these are time protecting the public from drunk drivers by requiring them to obtain ignition interlock devices. 

Changes to the DUI Statute

Now, even first-time offenders in the highest tier (meaning they had a BAC above .16 or drugs in their system while driving) can obtain a special Ignition Interlock license which will permit them to keep driving during the period of suspension. This will result in many DUI defendants being able to keep their jobs. At the same time, it makes the roads safer by requiring those convicted of DUI to obtain these ignition interlock devices. The devices prevent a car from starting if the device detects the presence of alcohol in the driver’s breath. Notably, the devices have no way of detecting the presence of any kind of drugs. Additionally, the legislature recently amended the statute so that defendants who are diverted into the ARD program will be eligible for ignition interlock licenses. This portion of the statute will not go into effect until October 2018, so ARD currently still requires the license suspension. The law also does not help criminal defendants who have had their driver's licenses suspended due to convictions for drug possession or possession with the intent to deliver.  

We Can Help With DUI Cases and Ignition Interlock Licenses

Goldstein Mehta LLC - Philadelphia Criminal Defense Lawyers

Goldstein Mehta LLC - Philadelphia Criminal Defense Lawyers

You can learn more about the law and its benefits on PennDOT’s website. If you have questions about your eligibility for an ignition interlock license or the procedure for applying for this type of license, call one of our award-winning Philadelphia criminal defense lawyers at 267-225-2545 for a free consultation. We can also help with DUI and driving with a suspended license charges in Philadelphia and the surrounding counties. 

New Strangulation Offense Increases Penalties for Domestic Violence

Strangulation - A New Crime in Pennsylvania 

Philadelphia Criminal Defense Lawyer Zak Goldstein

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Legislature recently enacted a new statute which increases the potential penalties in many domestic violence cases. Under the new strangulation statute, it is now often a felony to choke a family member or domestic partner. Previously, choking which did not cause serious bodily injury would often be graded as a misdemeanor Simple Assault instead of a felony Aggravated Assault. Therefore, the strangulation statute has the potential to drastically increase the consequences of a domestic assault allegation. 

What is Strangulation?

Pennsylvania law defines strangulation as:

"knowingly or intentionally imped[ing] the breathing or circulation of the blood of another person by:

(1)  applying pressure to the throat or neck; or

(2)  blocking the nose and mouth of the person."

The statute specifically negates any requirement that the prosecution prove an actual physical injury.  The law provides: 

"Infliction of a physical injury to a victim shall not be an element of the offense. The lack of physical injury to a victim shall not be a defense in a prosecution under this section."

This makes it easier for the prosecution to prove strangulation than to prove Aggravated Assault. Aggravated Assault requires the Commonwealth to prove that the defendant caused or attempted to cause serious bodily injury. Thus, in Aggravated Assault cases where the prosecution alleged choking of some kind, it was often a defense to the charge that the defendant did not cause any injury. If the defendant did not cause injury despite the choking, then the defense could argue that the defendant likely was not attempting to cause serious bodily injury. Although this defense would still remain viable against an Aggravated or Simple Assault charge, a lack of injury does not provide a legal defense to strangulation. 

What are the penalties for Strangulation?

A conviction for strangulation does not require a judge to impose a mandatory minimum sentence at sentencing. However, it is a serious charge because it is often a felony.

  • By default, strangulation is a misdemeanor of the second degree.
  • However, it becomes a felony of the second degree when the crime is committed against a family member, household member, or complainant with whom the defendant has had a sexual relationship.
  • It becomes a felony of the first degree when the defendant has a prior conviction for strangulation, if the defendant uses a weapon during the commission of the offense, or if the complainant has an active Protection From Abuse order against the defendant. 

Misdemeanors of the second degree are punishable by up to two years in prison. Second degree felonies are punishable by ten years in prison, and first degree felonies may be punished by up to twenty years in prison. Because there is no mandatory minimum, the judge has a tremendous amount of discretion when deciding on a sentence for a strangulation conviction, and a sentence could range from probation to jail time. All convictions for domestic violence prohibit the defendant from possessing a firearm. 

What are the defenses to strangulation charges?

Despite the reduced legal burden for the prosecution in terms of proving strangulation, there are still a number of potential defense to this charge. Many of the defenses  are the same as the defenses available in all domestic violence cases. Depending on the circumstances of the case, potential defenses may include:

  • Pre-trial diversionary programs. In Philadelphia cases in which the complainant did not suffer serious injury, prosecutors often offer entry into pre-trial domestic violence diversionary programs which may result in the dismissal and expungement of charges if the defendant pays a fine, attends counseling sessions, completes community service, and stays out of trouble for six months. 
  • Credibility. Although the Commonwealth may prove strangulation without proving that the complainant suffered some kind of actual injury, the absence of injuries is still relevant in terms of whether the complainant is telling the truth. If the complainant alleges that the defendant choked him or her for a lengthy period of time but the complainant does not have any marks around the throat, then it may be possible to show that the complainant has fabricated the story. Additionally, cross examination may reveal that the complainant has a motive to fabricate for reasons such as jealousy, financial gain, or to obtain lawful immigration status. Every defendant in Pennsylvania has the right to a trial by jury or a trial with a judge, and the Commonwealth must prove each element of a statute beyond a reasonable doubt. If the judge or jury do not believe the complainant, then that could lead to an acquittal despite the fact that the Commonwealth is not required to prove that an injury occurred.  
  • Self-Defense. Self-defense could also be a defense in an assault case. If the defense can show that the complainant attacked the defendant first, then the defendant may have been justified in fighting back. If the defense introduces some evidence of self-defense, the Commonwealth must disprove self-defense beyond a reasonable doubt. If the Commonwealth cannot do so, then the defendant would be acquitted.   

Philadelphia Criminal Defense Lawyers for Strangulation Charges

Philadelphia Criminal Defense Lawyers Zak T. Goldstein, Esq. and Demetra Mehta, Esq.

Philadelphia Criminal Defense Lawyers Zak T. Goldstein, Esq. and Demetra Mehta, Esq.

The Philadelphia criminal defense attorneys of Goldstein Mehta LLC have successfully represented hundreds of clients in domestic violence and domestic assault cases. We have already defended clients who are charged with strangulation and successfully moved to have these serious charges dismissed at preliminary hearings in courts throughout Pennsylvania. We are experienced and understanding defense attorneys who will fight for you. If you are facing domestic violence allegations or any other criminal charges, call 267-225-2545 for a free criminal defense strategy session. 



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Critical Mandatory Minimum Update


Critical Mandatory Minimum Update
Mandatory minimum sentencing laws in Pennsylvania may be about to change dramatically for the worse. For the past few years, the mandatory minimum sentences required by state law have been the subject of intense litigation, and most of them have been eliminated by opinions of the Pennsylvania Supreme and Superior Courts. Recently, the House passed a bill that would reinstate the previously stricken mandatory minimums by a vote of 146-46. The Philadelphia Inquirer reports that the Senate may also take up the legislation this week or next, and then the bill would be sent to the Governor for his signature.
Litigation Surrounding Mandatory Minimums    
The litigation related to mandatory minimum sentences stems from the United States Supreme Court decision in Alleyne v. United States. In Alleyne, the Supreme Court held that because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an “element” of the crime that must be submitted to the jury. For example, if the use of a firearm during the commission of a crime would trigger a mandatory minimum, as it previously did in Pennsylvania, then the fact that a gun was in fact used must be found by the jury at the end of trial instead of by the trial judge at sentencing.
Alleyne’s holding wreaked havoc on Pennsylvania’s mandatory minimum sentencing scheme. Instead of requiring that a jury rule on whether the facts which would trigger a mandatory minimum be submitted to the jury, Pennsylvania law specifically required the trial judge to determine if a mandatory minimum applied during sentencing. Further, the law permitted the sentencing judge to impose the mandatory minimum based on its own fact finding using a preponderance of the evidence standard instead of the much higher beyond a reasonable doubt standard required during a trial. For a defendant charged with selling drugs while in possession of a firearm, which previously triggered a five-year mandatory minimum, the sentencing judge could actually find that the mandatory minimum applied even if a jury had acquitted the defendant of possessing the gun but convicted the defendant of selling drugs.
The Pennsylvania sentencing scheme which gave this authority to the sentencing judge was in direct conflict with the Supreme Court’s holding in Alleyne. Therefore, in Commonwealth v. Hopkins, the Pennsylvania Supreme Court held that the Pennsylvania scheme was unconstitutional and struck down the vast majority of Pennsylvania mandatory minimum sentences.
Despite the rulings in Hopkins and Alleyne, a handful of significant Pennsylvania mandatory minimum sentences have survived. For example, mandatory minimums which are triggered based on the defendant’s prior record do not suffer from the same fatal flaw as the mandatory minimums surrounding the weight of drugs, the use of firearms, or other issues of that nature. Therefore, Pennsylvania’s three strikes law and DUI mandatory minimums continue to be enforced. In the case of the three strikes law, Pennsylvania imposes a mandatory minimum of 10-20 years of incarceration for certain second strikes and a sentence of 25 – 50 years for a third strike. The offenses which constitute strikes are listed in 42 Pa.C.S. § 9714 and include certain types of homicide, assault, robbery, burglary, and a number of sex offenses. Likewise, even a first offense DUI can trigger a 72-hour incarceration sentence when the defendant is not eligible for ARD. Because the sentencing judge must only be satisfied as to the fact that the defendant has a certain prior conviction, those mandatory minimum sentences have survived.
Although some mandatory minimums remain, most mandatory minimums were eliminated by Alleyne and Hopkins. For example, Pennsylvania previously had dozens of mandatory minimums for violent crimes committed with a firearm, based on the weight of drugs possessed with the intent to distribute, for selling drugs in a school zone, and for many sex offenses. This means that Pennsylvania had mandatory minimums not just for violent crimes, but also non-violent crimes like drug possession.
Problems with Mandatory Minimums
Mandatory minimums raise a number of serious problems. While most Americans probably believe that defendants properly convicted of serious violent felonies and sex crimes should receive prison time, mandatory minimums apply to all sorts of non-violent conduct such as the possession of narcotics. Further, mandatory minimums take a one-size-fits-all approach to sentencing which deprives the judge of the power to determine whether any given defendant is deserving of a break due to something in the defendant’s background. For example, even if the judge learns at sentencing that the defendant in a drug case is dying of cancer, the judge would be unable to impose anything less than the mandatory minimum of incarceration in a state prison.
Finally (and perhaps most importantly), mandatory minimums force innocent people to plead guilty in order to avoid the risk of facing the mandatory minimum. When a defendant is charged with a crime that would trigger 25-50 years in prison should the defendant lose at trial, the defendant is much more likely to take a deal if the prosecutor offers probation. This is true regardless of whether or not the defendant actually committed the crime. Thus, many people who are actually innocent plead guilty in order to avoid the mandatory minimum instead of taking the case to trial. This is a huge contributing factor to the fact that the overwhelming majority of criminal cases end in some form of plea deal. Mandatory minimums have likewise led to a huge increase in the prison population in Pennsylvania and the rest of the country.  
What to Do

If you are a Pennsylvania citizen, it is not too late to contact your State Senator and Governor Wolf and ask them to oppose the enactment of mandatory minimum sentences. Defendants should not have to plead guilty to crimes that they did not commit because they cannot risk the imposition of a mandatory minimum sentence. Additionally, each defendant is different, and many defendants charged with mandatory minimum crimes simply are not deserving of incarceration. Mandatory minimums take the authority to figure out who may be rehabilitated with probation or house arrest away from a neutral judge and give that power to the prosecutor who may be more interested in obtaining convictions and lengthy sentences for political reasons.  

Contact a Philadelphia Criminal Defense Lawyer Today
If you are currently charged with or could be charged with a crime, then you should contact an experienced criminal defense attorney immediately. When you are deciding how to attack the case, one of the first things you need to know is whether a mandatory minimum could apply to some of the charges you are facing. The Philadelphia Criminal Defense Lawyers of Goldstein Mehta LLC have extensive experience fighting all types of state and federal charges in Pennsylvania and New Jersey, and we will be able to evaluate your case, determine if a mandatory minimum applies, and provide you with the best options and advice on how to proceed. Call 267-225-2545 now for a free consultation.