Philadelphia Criminal Defense Blog

Zak Goldstein 9/11/19 Zak Goldstein 9/11/19

PA Supreme Court: Chemical Testing Refusal May Be Used Against DUI Defendant At Trial

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Bell, holding that the Commonwealth may introduce a defendant’s refusal to submit to a blood test in its case-in-chief against a defendant in his DUI trial as evidence of guilt. The Court concluded that the prosecution may use such a refusal to argue that the defendant acted with the consciousness of guilt. The refusal, however, still may not be used as the basis for increased criminal penalties unless police have first obtained a search warrant.

Commonwealth v. Bell

The defendant was arrested for suspicion of DUI on May 16, 2015. After his arrest, he was transferred to the Lycoming County DUI center. At the DUI center, a detective read the defendant the PennDOT DL-26 form, and he subsequently refused a blood test. He was subsequently charged with DUI along with other summary traffic offenses.

Prior to his trial, the defendant filed a pre-trial motion to dismiss arguing that he had a constitutional right to refuse to submit to a warrantless blood test and thus evidence of his refusal should be suppressed and the DUI charge dismissed. The trial court denied his motion and he proceeded to have a bench trial on the same day. At his trial, the arresting officer testified regarding the defendant’s refusal to submit to blood testing and that the defendant asserted he did not want a needle in his arm because he had previously contracted hepatitis from a hospital needle. At the conclusion of the trial, the defendant was found guilty of all charges.

The defendant then filed a motion for reconsideration. He specifically argued that the United States Supreme Court’s decision in Birchfield v. North Dakota precluded states from penalizing DUI defendants for refusing to submit to warrantless blood testing and he should be granted a new trial at which evidence of his refusal would be inadmissible. The trial court agreed with the defendant and determined that he was entitled to a new trial because the court relied on his refusal as a basis for the DUI conviction. The Commonwealth then filed an interlocutory appeal to the Superior Court. The Commonwealth argued that Birchfield did not affect the admissibility of refusal evidence to show consciousness of guilt. In response, the defendant argued that Birchfield created a constitutional right to refuse a warrantless blood test and the admission of his refusal was improper because it penalized him for exercising his constitutional rights.

The Superior Court’s Decision

A three-judge panel of the Superior Court reversed the trial court’s order granting the defendant a new trial and remanded the case for sentencing. The panel reviewed Pennsylvania’s implied consent statute and found that suspected drunk drivers do not have a constitutional right to refuse a blood test and it was constitutionally permissible for the Commonwealth to introduce evidence of such refusal. The defendant then filed a petition for allowance of appeal and the Pennsylvania Supreme Court agreed to hear the case.

What is the Implied Consent Statute?

The implied consent statute is codified under 75 Pa C.S. § 1547. It provides that that “any person who drives…a vehicle in the Commonwealth of Pennsylvania shall have been deemed to have given consent to one or more chemical tests of breath, blood or urine.” If someone does not comply with § 1547, then they can face a license suspension. Further, the statute also allows for the introduction of this evidence into a criminal trial against a defendant. This was the relevant statute in the instant case.

What Was The Holding in Birchfield?

In Birchfield, the United States Supreme Court held that blood and breath tests are governed by the Fourth Amendment of the United States Constitution. Additionally, although implied consent with respect to warrantless breath tests is constitutionally permissible, blood draws are different because taking blood is more intrusive than giving a breath sample. Therefore, the police need a warrant (or actual consent) before they can take a blood test. Additionally, a state may not impose criminal penalties on a suspect who refuses to submit to a warrantless blood test. The Birchfield Court did not rule on whether evidence of the refusal could be used at trial to show consciousness of guilt. In other words, the Court did not determine whether prosecutors could argue that a defendant who refuses a blood test likely has something to hide.

The Pennsylvania Supreme Court’s Decision

A divided Pennsylvania Supreme Court held that the Commonwealth may introduce evidence of a defendant’s refusal as substantive evidence against him in a DUI trial. In making its decision, the majority analyzed not only United States Supreme Court decisions, but also decisions from other state courts. The majority’s logic was that driving is not a constitutional right and therefore if someone drives in Pennsylvania, they must comply with the implied consent law. The majority acknowledged that this may be a “difficult choice” for some motorists, but because driving is a “civil privilege” there was no constitutional issues in requiring drivers to make said choice. Further, the majority found that Birchfield did not expressly forbid states from introducing these evidentiary consequences for refusal and therefore believed that the United States Supreme Court would agree with their decision. As such, the defendant will not get a new trial, and his case will be remanded for sentencing.

FACING CRIMINAL CHARGES? WE CAN HELP.

Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, DUI, PWID, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 8/26/19 Zak Goldstein 8/26/19

PA Supreme Court: Police May Often Search Commercial Trucks Without a Warrant

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Maguire, holding that individuals engaged in highly regulated commercial activities such as commercial trucking are not entitled to the same constitutional safeguards as the general public. This decision is highly relevant to those engaged in the trucking industry because it permits the government to set up checkpoints that would normally not be constitutional if they were designed to stop and search the general public. Therefore, those who are employed in this industry must be especially careful when engaged in commercial activities.

Commonwealth v. Maguire

On May 20, 2015, the Pennsylvania State Police and the Pennsylvania Department of Environmental Protection (hereinafter “DEP”) set up a commercial vehicle inspection program in accordance with 75 Pa.C.S. § 4704 which permits the police to set up a “systematic vehicle inspection program…to determine whether they meet standards established in department regulations.” The inspection was scheduled one month in advance, and it occurred at a Clinton County landfill located in McElhatten, Pennsylvania. Pennsylvania State Trooper Beaver, a motor vehicle enforcement officer, and a motor carrier enforcement supervisor comprised the team that conducted the checkpoint inspections. This team was stationed in a lot in front of the scale house near the entrance of the landfill.

This team established and utilized a procedure where the first team member available would stop the next truck entering the landfill. At approximately 2:50 PM, it was Trooper Beaver’s turn to inspect a truck when he observed the defendant driving his truck. Trooper Beaver exited his vehicle and motioned for the defendant to pull into the lot where the team was located. The defendant complied with his request. Trooper Beaver then engaged the defendant in conversation and asked him to provide him with documents pertinent to the truck and its operation. While speaking with the defendant, Trooper Beaver detected smell of alcohol on the defendant’s breath. He then reviewed the defendant’s documents and did a walk-around inspection of the truck.

Following the inspection, Trooper Beaver had the defendant exit the truck and told him that he smelled of alcohol and asked whether he had been drinking. The defendant stated he had one beer prior to his trip to the landfill. At this point, Trooper Beaver noticed a cooler on the floor of the truck near the gearshift. Inside this cooler, he saw three Busch light beers and two bottles of water. The defendant was then asked to perform a field sobriety test, which he failed. The defendant was then placed under arrest and transported to the Jersey Shore Hospital for blood testing. He was subsequently charged with DUI and five other counts of unlawful activities.

The Motion to Suppress

The defendant then filed a motion to suppress the evidence. In his motion to suppress, the defendant argued that his Fourth Amendment rights were violated because Trooper Beaver and his team did not comply with the Tarbert/Blouse guidelines which were promulgated to test the constitutionality of systematic, police-conducted vehicle checkpoints which were used to stop members of the general public (specifically for DUI’s). The trial court held a hearing at which Trooper Beaver was the only witness to testify. At the conclusion of the hearing, the trial court ordered the parties to submit post-hearing briefs. The Commonwealth filed a brief arguing that the Tarbert/Blouse guidelines are inapplicable to the commercial vehicle safety checkpoints that were used in the instant case. The trial court agreed with the defendant and granted his motion to suppress. The Commonwealth then filed a timely appeal.

On appeal, the Superior Court agreed with the Commonwealth. The Superior Court held that the Tarber/Blouse guidelines did not apply to a checkpoint for commercial vehicles. Instead, the trial court should have analyzed the checkpoint under the factors discussed in the United States Supreme Court’s case in New York v. Burger (these are guidelines that are directed at commercial related activities). Based on these Burger factors, the Superior Court held that the search was constitutional and reversed the trial court. The defendant then filed a petition for allowance of appeal, and the Pennsylvania Supreme Court granted review.

What are the Tarbert/Blouse Guidelines?

The Tarbert/Blouse guidelines are factors that a court uses to determine whether a checkpoint is constitutional. Remember, the Fourth Amendment protects against unreasonable searches and seizures. If the police stop you at one of these checkpoints, this is technically a seizure. These checkpoints are commonly used to deter and arrest people who are suspected of driving under the influence. Pennsylvania appellate courts have held that these checkpoints are constitutional, so long as they sufficiently comply with the Tarbert/ Blouse guidelines.

According to the guidelines:

1) vehicle stops must be brief and must not entail a physical search;

2) there must be sufficient warning of the existence of the checkpoint;

3) the decision to conduct a checkpoint, as well as the decisions as to time and place for the checkpoint, must be subject to prior administrative approval;

4) the choice of time and place for the checkpoint must be based on local experience as to where and when intoxicated drivers are likely to be traveling; and

5) the decision as to which vehicles to stop at the checkpoint must be established by administratively pre-fixed, objective standards, and must not be left to the unfettered discretion of the officers at the scene.

It is important to remember that it is not required that all of these guidelines are present. Rather, they are just guidelines to determine whether the checkpoint in question is sufficiently compliant with the constitution.

What are the Burger Factors?

The Burger Court recognized owners of a commercial business or vehicle in a closely regulated industry have a substantially reduced expectation of privacy, and therefore, the Fourth Amendment warrant and probable cause requirements are lower for these individuals. Therefore, a warrantless inspection is constitutional if: 1) there is a substantial governmental interest informing the regulatory scheme pursuant to which the inspection was made; 2) warrantless inspections are necessary to advance the regulatory scheme; and 3) the statute’s inspection program is applied with such certainty and regularity as to prove a constitutionally adequate substitute for a warrant.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court affirmed the Superior Court’s decision and held that the Tarbert/Blouse guidelines were not applicable to the instant case. The Court reasoned that when the defendant was stopped, he was engaged in the trucking business, which is a closely regulated industry. Additionally, the Court stated that “owners of certain closely regulated businesses should expect that their businesses would be subject to warrantless administrative searches.” Therefore, the defendant had a reduced expectation of privacy when he was engaged in his trucking business. As such, his case will be remanded to the trial court and the Commonwealth will be able to use all the evidence that was suppressed in their case against him.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Note: Goldstein Mehta LLC’s Philadelphia Criminal Defense Blog was recently recognized as one of the Top 50 Criminal Defense Blogs on the web by Feedspot.com. We greatly appreciate this recognition.

Zak Goldstein 8/24/19 Zak Goldstein 8/24/19

PA Superior Court: Pointing a Gun at Someone May Be Aggravated Assault

The Pennsylvania Superior Court has decided the case of Commonwealth v. Miller, holding that the trial court properly found the defendant guilty of Aggravated Assault for the act of merely pointing a gun at the complainant. This is a poorly reasoned case which fails to follow the statutory language of the Aggravated Assault statute by allowing a conviction for Aggravated Assault even where the defendant did not actually do anything to try to cause serious bodily injury to the complainant.

The Facts of Miller

In Miller, the defendant became involved in a road range incident with the complainant. The complainant was driving home when he turned onto a street which was blocked by the defendant’s car. The defendant started yelling at the complainant, so the complainant pulled over and got out of his car. The defendant got out of his car, and the two began to argue. The defendant then went back to his car, retrieved a handgun, and pointed it at the complainant’s head with his finger on the trigger. He repeatedly stated things like “What’s your problem now, fucker? I got a gun. I’m going to kill you. I’m going to shoot you.” The complainant put his hands up defensively and said that was not necessary, and the defendant continued to threaten him and say that he should kill him.

At some point, one of the defendant’s friends came out of his house and began yelling at the defendant to put the gun away. He did, but then the two men argued some more. The defendant then started to go back to his car to get the gun again, but the complainant’s wife grabbed the gun and threw it. Police arrested the defendant, and he later yelled “I shoulda just fucking killed them. I shoulda just shot them.” He made a number of other similar statements which did not help his case.

The Criminal Charges

Prosecutors charged the defendant with Aggravated Assault, Simple Assault, Terroristic Threats, Recklessly Endangering Another Person, Disorderly Conduct, and Harassment. He proceeded by way of jury trial and was found guilty of all charges. The trial judge sentenced him to four to ten years’ incarceration in state prison, and the defendant appealed.

The Superior Court Appeal

On appeal, the defendant argued that the evidence was insufficient to support the conviction for Aggravated Assault. Specifically, Aggravated Assault requires either that a defendant cause or attempt to cause serious bodily injury to the complainant. Here, the defendant did not cause serious bodily injury to the complainant because he did not do anything other than point the gun, but the Court found that the conviction could be upheld because he attempted to cause serious bodily injury.

Can you be convicted of a aggravated assault just for pointing a gun at someone?

Sometimes, depending on the facts. Here, the Court upheld the conviction. The Superior Court reasoned that for aggravated assault purposes, an attempt can be found where the accused who possesses the required, specific intent acts in a manner which constitutes a substantial step towards perpetrating a serious bodily injury upon another. Intent ordinarily must be proven through circumstantial evidence and inferred from acts, conduct or attendant circumstances.

Here, the Court found that the jury was free to believe that the defendant meant what he repeatedly said to the complainant: that he intended to shoot him. The threat, in conjunction with the act of pointing the gun at the complainant’s head, was sufficient to sustain the conviction for Aggravated Assault. Further, the encounter was only defused because the neighbor came out and began yelling at the defendant to stop, thus suggesting that the defendant may have carried through with the threat had someone else not intervened. Therefore, the Court upheld the conviction.

Potential Defenses to Aggravated Assault Charges for Pointing a Gun

This really is a bad opinion – Aggravated Assault requires an actual attempt to cause serious bodily injury, and here, it does not appear that anything actually happened which prevented the defendant from causing that serious bodily injury if he wanted to do so. Where a defendant shoots at someone and misses or points a gun at someone who flees and escapes, it may make sense for a court to find that there was sufficient evidence of Aggravated Assault. But where the defendant points the gun at someone and has every opportunity to shoot but does not do so, there should not be a conviction for Aggravated Assault.

In general, Pennsylvania case law now seems to hold that pointing a gun at someone may be Aggravated Assault where there are some intervening circumstances which arguably lead to the defendant deciding not to carry through with the threat. However, where the defendant does nothing more than point the gun at a complainant and then voluntarily stops on his or her own, there is still case law that supports the idea that this type of action should only be a Simple Assault. Unfortunately, Pennsylvania courts often do not take the fact that Aggravated Assault is a first-degree felony seriously enough. This makes it extremely important to hire an experienced criminal defense lawyer if you are facing charges or under investigation for assault.

Facing criminal charges? We can help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey at trial and on appeal. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, VUFA, PWID, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 8/20/19 Zak Goldstein 8/20/19

PA Supreme Court: Posting Photos of Drugs, Guns, and Money on Social Media May Not Be a Probation Violation

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Foster, holding that a criminal defendant may not be found in violation of probation without a proper finding by the trial court that the defendant violated a specific condition of probation. In this case, the violation of probation was based solely on the defendant’s decision to post photos of guns, drugs, and money on social media. Because the Commonwealth did not introduce any evidence that the defendant was actually in possession of the contraband or that the terms of probation specifically prohibited from posting these types of things on social media, the Supreme Court held that the defendant should not have been found to have violated his probation.

The Facts of Foster

In Foster, the defendant pleaded guilty to Possession with the Intent to Deliver of a controlled substance. He received a sentence of four years’ probation. Shortly after he started his probation, he posted photos on his social media accounts which depicted guns, drugs, and large amounts of money. The photos also included his sentencing sheet from the PWID case. The defendant’s probation officer detained him, and the trial court held a hearing on whether the defendant had violated his probation despite the fact that he had not been convicted of any new crimes and had been reporting, testing negative for drugs, and seeking employment as required.

The trial court found the defendant in violation of his probation and sentenced him to 11.5 – 23 months’ incarceration followed by a new period of probation. At the hearing, the Commonwealth essentially produced only the photographs that the defendant had posted on social media. The photographs did not show the defendant actually in possession of the drugs, money, or guns. The Commonwealth argued that he was using his social media account “as an ad agency to sell drugs” and that he was continuing to engage in illegal activity. The prosecutor further argued that the photos showed that he had no respect for the court or for probation and that he should be sentenced to a period of incarceration.

The defendant responded by admitting that the accounts in question were his, but he asserted that he had merely downloaded the photographs from the internet and re-posted them in order to show off for friends. He denied that he had ever been in possession of any contraband since starting his probation. The Commonwealth did not introduce any evidence to rebut the defendant’s position. Essentially, the defense argued that the defendant should have been smarter in terms of what he posted on the internet, but he had not violated the terms of his probation merely by showing off for friends on social media because nothing in the law governing probation or the actual terms of his probation which were provided by the probation department prohibited him from posting on social media.

The Trial Court’s Ruling

The trial court accepted the Commonwealth’s position, revoked probation, and sentenced the defendant to jail. The defendant appealed to the Pennsylvania Superior Court, which affirmed the order revoking his probation, and the defendant filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to accept the case.

Is it a violation of probation to post photos of drugs and guns on social media?

Probably not. On appeal, the Pennsylvania Supreme Court found that the trial court had erred in finding the defendant in violation of his probation because there was no evidence that he had committed a new crime, violated a specific term of his probation, or actually been in possession of contraband. The Commonwealth’s bare assertions that it must have been the defendant holding the contraband in the photographs were not sufficient to prove that he had not in fact downloaded the photos from the internet and simply re-shared them.

The Supreme Court noted that when a trial court places a defendant on probation, the court must specify the length of the term of the probation at the time of sentencing. The court must also identify which conditions of probation the defendant must follow. The law provides a number of potential conditions from which a court may choose. For example, a court may properly require a defendant:

1) To meet his family responsibilities.

2) To devote himself to a specific occupation or employment.

3) To participate in a public or nonprofit community service program unless the defendant was convicted of murder, rape, aggravated assault, arson, theft by extortion, terroristic threats, robbery or kidnapping.

4) To undergo available medical or psychiatric treatment and to enter and remain in a specified institution, when required for that purpose.

5) To pursue a prescribed secular course of study or vocational training.

6) To attend or reside in a facility established for the instruction, recreation, or residence of persons on probation.

7) To refrain from frequenting unlawful or disreputable places or consorting with disreputable persons.

8) To have in his possession no firearm or dangerous weapon unless granted written permission.

9) To make restitution of the fruits for his crime or to make reparations, in an amount he can afford to pay, for the loss or damage caused thereby.

10) To remain within the jurisdiction of the court and to notify the court or the probation officer of any change in his address or his employment.

11) To report as directed to the court or the probation officer and to permit the probation officer to visit his home.

12) To pay such fine as has been imposed.

13) To participate in drug or alcohol treatment programs.

14) To satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.

15) To remain within the premises of his residence during the hours designated by the court.

Further, the statute provides when a court may find a defendant in revocation. It provides:

“The court may revoke an order of probation upon proof of the violation of specified conditions of the probation. Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.”

The Pennsylvania Supreme Court’s Ruling

Here, the Supreme Court ultimately agreed with the defense on appeal that the defendant had not violated a specific term of probation. Nothing in the statute or the orders which the probation department had actually given him dictated that he could not post photos of drugs and guns on the internet. Therefore, the Court reversed the order finding the defendant in violation of his probation, vacated the jail sentence, and remanded the case back to the trial court.

It is important to note that in this case, the Commonwealth could not actually prove that the defendant possessed the guns, drugs, or cash, and the rules did not specifically prohibit him from posting these types of photos. If the Commonwealth had been able to show that he did have those things in his possession, then the Commonwealth may have been successful in proving a probation violation even if it did not proceed against the defendant on new charges. Likewise, it may be possible for probation to prohibit a defendant from engaging in this type of behavior in the future, although such rules could raise free speech concerns. Therefore, it is extremely important for a probationer to closely review the rules of probation or parole at the beginning of the supervision period and to seek experienced criminal defense counsel in the event of a potential violation.

Facing criminal charges? We can help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey at trial and on appeal. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, VUFA, PWID, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545to speak with an experienced and understanding defense attorney today.