Philadelphia Criminal Defense Blog

Zak Goldstein 5/25/20 Zak Goldstein 5/25/20

PA Superior Court: ARD Does Not Count as Prior Offense for DUI Sentencing

Philadelphia Criminal Lawyer Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Chichkin, holding that a defendant’s prior acceptance of an accelerated rehabilitative disposition (“ARD”) does not qualify as a prior conviction for purposes of the DUI sentencing statute. This decision is a huge win for DUI defendants because many people will no longer be exposed to longer mandatory minimum sentences for a second DUI arrest if the prior arrest was resolved with the ARD program. It also fully recognizes that ARD does not count as a conviction or admission of guilt for any purposes.

Commonwealth v. Chichkin

The defendant was arrested and charged with Driving Under the Influence for an incident that occurred on December 8, 2017. His case proceeded to trial in the Philadelphia Municipal Court on May 18, 2018, at which time the court found him guilty of two counts of DUI-general impairment under 75 Pa.C.S. § 3802(a)(1). The Municipal Court sentenced him to a term of 30 days to six months’ imprisonment, with two months’ concurrent probation. The 30-day mandatory minimum was imposed under 75 Pa.C.S. § 3804(b)(2)(i) because the defendant had accepted ARD for a prior DUI offense in 2013. If he had not had a prior ARD acceptance, then the mandatory minimum for his DUI sentence would have instead been 48 hours’ incarceration.

The defendant filed a timely motion for reconsideration seeking to “bar consideration of [his] prior ARD acceptance for sentencing purposes because the statutory framework violates several provisions of the United States and Pennsylvania Constitutions.” The court granted reconsideration and vacated the defendant’s sentence. However, following a hearing on the post-sentence motion, the Municipal Court denied reconsideration and reinstated the original sentence. The defendant filed a timely petition for writ of certiorari in the Court of Common Pleas. The trial court denied the writ but stayed the defendant’s sentence pending appeal. The defendant then filed a timely appeal to the Pennsylvania Superior Court.

Why Does it Matter if I Have a Prior Conviction for DUI?

The reason it matters is because if you have a prior DUI, then you will be subjected to an enhanced mandatory minimum if you are convicted of a subsequent DUI. 75 Pa.C.S. § 3804 lists the criminal penalties for a defendant after a conviction for DUI. These penalties can be quite harsh, especially considering that these are mandatory sentences and therefore the judge has no discretion in the imposition of the sentence.

For example, let’s assume a defendant is convicted of DUI while under the influence of controlled substances and this is his first DWI conviction. Because it is the defendant’s first conviction, the mandatory minimum for a first offense involving a controlled substance is three days’ incarceration. However, let’s assume that this defendant actually had a prior conviction for drunk driving and then is found guilty of DWI while under the influence of controlled substances. The mandatory minimum for this offense is now 90 days’ incarceration. This means that the defendant’s prior record can have a dramatic effect on his or her sentence.

Why Would ARD Count as a Prior Conviction?

Under the language of the statute, entry into the ARD program should count as a prior conviction. 75 Pa.C.S. § 3806 defines what constitutes a prior conviction for the DUI statute. According to 75 Pa.C.S. § 3804, if you previously accepted an ARD offer, the ARD counts as a prior conviction and thus you would be subjected to the enhanced penalties for second time offenders. In the instant case, the defendant was appealing this issue based on his argument that the statute was unconstitutional.

The Superior Court’s Decision

The Superior Court found that it was unconstitutional to count the defendant’s prior ARD as a prior conviction. In reaching its decision, the Pennsylvania Superior Court looked at previous appellate decisions. In its research, the Superior Court found that it was not unconstitutional to give a defendant an enhanced or mandatory sentence based on a prior conviction. However, the Superior Court found that it is unconstitutional to give a defendant an enhanced or mandatory sentence based on a fact that a defendant was not found guilty of beyond a reasonable doubt by a trier of fact (i.e. a jury or a judge).

This scenario used to be common in drug possession cases (for example, selling drugs within a certain distance of a school or based on the weight of a drug). Not too long ago, a defendant could receive an enhanced mandatory minimum sentence because the Commonwealth presented evidence that the defendant had a certain amount of drugs or was within a certain amount of feet near a school. However, Pennsylvania courts found that this was unconstitutional. They held that in order for a defendant to receive this enhanced or mandatory sentence, the trier of fact must specifically find that the defendant committed the conduct which increased the penalty in question beyond a reasonable doubt. It was not sufficient for the Commonwealth to merely present this fact during its case-in-chief or to the judge at sentencing. Instead, the trier of fact had specifically find that the defendant committed this fact beyond a reasonable doubt before a defendant could receive the enhanced sentence.

This resulted in many Pennsylvania mandatory minimum statutes being struck down because they allowed the judge to make findings on mandatory minimum issues at sentencing by a preponderance of the evidence standard instead of requiring that these things be found by a jury beyond a reasonable doubt.

Accordingly, the Superior Court analogized these prior decisions which struck down mandatory minimum sentences in Pennsylvania to the ARD statute, which allowed for a defendant to receive an increased sentence despite no finding of guilt by a jury beyond a reasonable doubt. Therefore, the question was whether a prior ARD qualified as a “fact” or a prior conviction.

After reviewing these prior decisions, the court found that admission into an ARD program could not be considered a prior conviction for any offense other than DUI’s. Further, when the Superior Court analyzed the procedure of accepting an ARD offer, it found that because a defendant does not have to admit his guilt and the Commonwealth is not required to prove the defendant’s culpability beyond a reasonable doubt, a defendant’s prior acceptance of ARD does not qualify as a “prior conviction.” As such, the Superior Court found that 75 Pa.C.S. § 3806 and § 3804 are unconstitutional. The defendant will be re-sentenced as a first-time offender.

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Philadelphia Criminal Lawyers - Goldstein Mehta LLC

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 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 4/30/20 Zak Goldstein 4/30/20

PA Supreme Court: Deputy Sheriff May Not Conduct Traffic Stop for Expired Registration Sticker

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Copenhaver, holding that deputy sheriffs may not conduct traffic stops on the basis of an expired car registration sticker. In general, deputy sheriffs may only conduct stops of motorists when they observe a “breach of the peace” or the commission of a felony, or misdemeanor offense. Because an expired registration does not constitute a breach of the peace under Pennsylvania law, sheriff’s deputies may not stop motorists to investigate or issue citations even where the deputies have the same training as a police officer.

The Facts of Copenhaver

In Copenhaver, a deputy sheriff conducted a vehicle stop of the defendant’s pickup truck after seeing that the truck had an expired registration sticker. Upon approaching the truck, the deputy smelled the odor of alcohol and marijuana coming from the passenger compartment. The deputy ordered the defendant to exit the vehicle, administered field sobriety tests, and eventually arrested him on suspicion of driving under the influence of drugs and alcohol.

The Motion to Suppress

After prosecutors filed the DUI charges, the defendant moved to suppress the evidence obtained by the deputy sheriff. Specifically, the defendant alleged that the deputy did not have the authority to conduct the traffic stop, and therefore all evidence as a result of the encounter should be suppressed. The defendant argued that an expired registration tag does not give a deputy sheriff the authority to make a stop because it does not amount to a breach of the peace for purposes of a deputy’s common law authority to make an arrest. The trial court denied the motion to suppress and found the defendant guilty of DUI and other traffic offenses. The defendant appealed, and the Superior Court denied the initial appeal. The defendant then appealed his DUI conviction to the Pennsylvania Supreme Court, and the Supreme Court accepted the case.

The PA Supreme Court’s Decision

The Supreme Court reversed the conviction and ordered that all evidence from the stop should be suppressed. The Court found that operating a vehicle with an expired registration, standing alone, is not a breach of the peace. The Court reasoned that a “breach of the peace” arises from “an act or circumstance that causes harm to persons or property, or has a reasonable potential to cause such harm, or otherwise to provoke violence, danger, or disruption to public order.” Operating a car with an expired registration sticker simply does not pose any risk to the general public, so the deputy did not have the authority to stop the defendant. Therefore, the stop should not have occurred, and the evidence must be suppressed.

When can a sheriff’s deputy make a stop or an arrest in Pennsylvania?

While police officers have general authority in their jurisdictions to enforce Pennsylvania law and investigate summary violations, misdemeanors, and felonies, the powers of a sheriff’s deputy are limited. A sheriff’s deputy does not have this general investigative power. Instead, a sheriff’s deputy may only investigate or make arrests for crimes that they see – this means they can make a stop or arrest where they actually observe the commission of a felony, misdemeanor, or a breach of the peace. They do not have the general authority to investigate crimes or enforce all traffic laws. Therefore, the sheriff’s deputy here violated the defendant’s rights, and the conviction must be reversed. It’s important to remember that this does not mean that if a sheriff tries to pul you over, you do not have to comply. You should still comply and address any violations of your rights in court at a later date.

Facing criminal charges in Philadelphia, PA? 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. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, DUI, 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.

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Zak Goldstein 4/23/20 Zak Goldstein 4/23/20

PA Supreme Court: Philadelphia Police May Not Ignore Search Warrant Requirement for DUI Blood Draw Just Because There Has Been an Accident

Zak Goldstein - Philadelphia Criminal Defense Lawyer

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Trahey, finding that the Philadelphia Police Department may not rely on the exigent circumstances exception to the search warrant requirement for a DUI-related blood draw just because there has been a fatal automobile accident. The Court reversed the Superior Court’s holding and ruled that the police must obtain a search warrant where a suspect refuses to consent to a blood draw. The police may not simply claim that they did not have time to do so in every case.

The Facts of Trahey

In Trahey, the defendant was charged with homicide by vehicle while DUI. Prosecutors alleged that on September 4, 2015, the Friday before Labor Day, 911 dispatchers received a call that a motorist had hit a bicyclist with a pickup truck in Philadelphia. The accident was reported at 9:15 pm, but Philadelphia Police officers did not arrive on the scene until 10:01 pm because the department places a low priority on responding to motor vehicle accidents.

When the officers arrived, the bicyclist had already been transported to the hospital, and he died shortly thereafter. Bystanders told the officers that the defendant had been driving the pickup truck. The officers spoke with the driver and smelled an odor of alcohol. They also observed that his speech was slow and steady, his eyes were glassy, and his gait was unsteady. Therefore, they arrested him for driving under the influence.

The officers spent about half an hour at the scene before they left for the Police Detention Unit with the defendant. On the way to the PDU, they were called back to the scene by Accident Investigation Division Officers. One of the AID officers observed that the defendant appeared to be intoxicated and became concerned that more than an hour had already passed since the accident. The officer then sent the defendant to the PDU for a blood test. The officers were concerned about the timing because PA law makes it difficult for prosecutors to pursue DUI cases where the testing does not occur within two hours of the defendant last operating a motor vehicle.

The defendant arrived at the PDU and was questioned by a different AID officer. That officer decided to conduct a blood test instead of a breath test. The officer read the defendant warnings which have since been found to be illegal – specifically, that if the defendant refused to consent, he could face enhanced criminal penalties due to his refusal. After receiving these incorrect warnings, the defendant agreed to the blood test, and a nurse drew his blood at 11:20 pm.

The Motion to Suppress

Prosecutors charged the defendant with DUI, homicide by vehicle while driving under the influence, homicide by vehicle, and involuntary manslaughter. The defendant moved to suppress the results of the blood draw, arguing that the police violated his rights by telling him that if he did not consent, he would face enhanced criminal penalties due to the refusal. In the recent case of Birchfield v. North Dakota, the United States Supreme Court held that states could not criminalize the refusal to submit to a warrantless blood draw because a blood draw is a significant search.

The trial court held a hearing on the motion at which the various officers testified as to what happened. The Commonwealth argued both that the defendant voluntarily consented to the blood draw and that exigent circumstances existed which relieved the police of the duty to get a search warrant should the court find that the defendant did not actually consent.

The trial court rejected the Commonwealth’s argument, finding that the defendant did not voluntarily consent to the blood draw because he was coerced into consenting when the officer incorrectly told him that he would face criminal penalties for the mere act of refusing to consent. Further, the court found that exigent circumstances did not exist because the police could have conducted a breath test or obtained a search warrant and that the Philadelphia Police should create procedures under which they can more efficiently obtain search warrants.

The Commonwealth appealed, and the Superior Court reversed, finding that the evidence should be admissible. The defendant appealed to the Pennsylvania Supreme Court, and the Pennsylvania Supreme Court accepted the case.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the Superior Court and ordered that the blood results should be suppressed. The Supreme Court relied on a number of recent United States Supreme Court decisions in making its ruling.

First, in Missouri v. McNeely, the United States Supreme Court rejected the government’s argument that the natural dissipation of alcohol in a DUI suspect’s blood always constitutes a per se exigency that obviates the requirement that police obtain a warrant prior to conducting a blood test. The US Supreme Court recognized that technological advances such as cell phones, fax machines, and scanners make it possible for cities and states to set up procedures by which police can quickly obtain a search warrant when necessary. Therefore, a trial court hearing a motion to suppress must look at the specific facts of each case before finding exigent circumstances.

Second, in Birchfield, the US Supreme Court held that states may not make it illegal to refuse a warrantless blood draw. This means that states cannot make it a stand-alone crime to refuse a blood test where the police have not obtained a search warrant. States also may not impose increased penalties for DUI convictions where there was a refusal to consent to a blood draw. States may, however, continue to punish defendants who refuse a blood test or who refuse to consent to a blood draw after the police have obtained a search warrant.

Third, in Mitchell v. Wisconsin, the US Supreme Court held that police may almost always take blood from an unconscious motorist who is suspected of an alcohol-related DUI because of the fact that alcohol dissipates relatively quickly and the suspect cannot be given the chance to consent. Additionally, a breath test is not possible because the suspect is unconscious, and accidents which result in people being unconscious are likely to be serious and require more police resources.

Based on these decisions, the Court ruled that the blood should have been suppressed in this case because the police did not have exigent circumstances for a warrantless blood draw and the defendant had not actually given voluntary consent. The Court found that if the police were worried about alcohol consumption, they could have done a breath test first, evaluated the results, and then decided whether or not to get a warrant for blood. Although exigent circumstances may have existed to do some kind of testing, the police could have quickly done a breath test without any requirement that they get a search warrant. Despite the fact that controlled substances remain in the bloodstream for much longer, they chose to do a blood test instead. If the police wanted to obtain the defendant’s blood, then they were required to either obtain voluntary consent or a search warrant.

Allowing an exception in this case would undermine the US Supreme Court’s decisions and essentially result in a finding that exigent circumstances apply in every single accident case in Philadelphia and that the Philadelphia Police are never required to obtain a search warrant. Therefore, the Supreme Court reinstated the trial court’s ruling which granted the motion to suppress. The Commonwealth will have to proceed in the case without the results of the blood test.

Facing criminal charges in Philadelphia? 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. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, DUI, 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 2/6/20 Zak Goldstein 2/6/20

PA Superior Court: Ordering Driver to Roll Window Down Is A Stop

Can the police make you roll down your car windows?

For years, Pennsylvania appellate courts have had some difficulty in defining the point at which a person is seized by police for Fourth Amendment purposes, finding in some cases that even where police clearly restrict a person’s movement, they may not be stopped. More recently, however, the Supreme and Superior Courts of Pennsylvania have issued a number of important cases which reflect the obvious fact that when the police tell you what to do, you are not free to leave. The Superior Court has now decided the case of Commonwealth v. Powell, holding that when police officers surround a legally parked vehicle and order the driver to roll down his window, the interaction is an investigatory detention (a stop) and not a mere encounter. This is important because in order to win a motion to suppress, a defendant has to show not only that the police acted without reasonable suspicion or probable cause, but also that they actually seized the defendant in some way. Police are free to walk up to any person and initiate a conversation without any level of suspicion. But once they start issuing commands, the situation changes dramatically and police are required to have reasonable suspicion or probable cause.

Commonwealth v. Powell

On April 27, 2018, an Edinboro, PA Police Officer was on duty in an unmarked police car along with a sheriff’s deputy. Both men were in uniform. At approximately 11:37 PM, the officer noticed a truck parked in the small public parking lot of the Lakeside Commons shopping mall. There were no stores open at the time. The truck’s engine was running, and the truck was legally parked. The officer testified that he normally patrols the lot, and in the past he has observed criminal activity in the lot such as drinking, drugs, and lewdness.

The officer testified that he pulled his vehicle directly behind the passenger side of the truck and he did not activate his lights. The officer and the deputy exited their vehicle and approached the defendant’s driver side and passenger side windows respectively. Prior to approaching the vehicle, the officer had not received any complaints about the defendant’s vehicle, nor had he observed any bad driving or suspicious behavior. When the officer and the deputy walked up to the defendant’s windows, the windows were closed. The officer observed the defendant in the truck eating food from Taco Bell, and the officer knew that there was a taco bell nearby.

The officer then ordered the defendant to roll his window down and observed the defendant with glassy eyes and a strong smell of alcohol coming from his person. The officer then asked the defendant for identification. Shortly after this request, the officer asked that the defendant perform sobriety tests. The defendant failed these tests and he was subsequently arrested for DUI.

The defendant then filed a motion to suppress all evidence that was obtained after his illegal detention. At his motion to suppress, the above stated facts were presented, and the trial court agreed that the defendant was illegally detained and consequently granted his motion. Specifically, the court found that no reasonable person would have believed that he was free to leave the encounter with the police. The Commonwealth then filed a timely interlocutory appeal. On appeal, the Commonwealth argued that the interaction between the defendant and the officers was just a mere encounter and thus he was not illegally seized.

What is a Mere Encounter?

When a defendant argues a motion to suppress, the Commonwealth will frequently suggest that the motion should be denied because the interaction between the defendant and the police was just a “mere encounter.” Mere encounters are considered to be routine interactions between citizens and police. They do not require any level of suspicion and do not involve any official compulsion by the police. Additionally, a mere encounter is considered consensual, and thus a citizen is allowed to terminate this interaction whenever he or she so chooses. It is important to note that just because an officer asks for identification, it does not necessarily escalate a mere encounter into an investigatory detention. The crucial factor in determining whether the mere encounter has evolved into an investigatory stop (or an arrest) is whether the individual would have reasonably felt free to terminate the interaction between himself and the police. In other words, if a reasonable person would not have felt free to end the encounter, then it is not a mere encounter. The reason this significant is because the police need reasonable articulable suspicion that a defendant is engaged in criminal activity before they can stop them for an investigatory detention.

As such, when a defense attorney litigates a motion to suppress, they are often trying to elicit facts to suggest that a reasonable person would not have felt free to leave. Often times this involves soliciting facts such as: the placement of the officers, what they were wearing, whether their weapons were visible, how many officers were involved, the tone of questioning, whether they touched the defendant, whether he was in handcuffs, etc. At the conclusion of the hearing, the defense attorney will then argue that based on the facts of the particular case this was not a mere encounter, bur rather an investigatory detention and therefore the police needed reasonable suspicion to stop him in the first place.

The Superior Court’s Decision

The Superior Court affirmed the trial court’s order granting the defendant’s motion to suppress. In its opinion, the trial court found several factors that escalated the interaction from a mere encounter to an investigatory detention. Specifically, the Superior Court found that the officers positioning themselves on both sides of the defendant’s vehicle and ordering him to roll his window down showed that this was not a mere encounter. Because the defendant was legally parked and not doing anything illegal, the officers lacked reasonable suspicion to stop him. Therefore, the Commonwealth will not able to use any of the evidence it obtained after illegally stopping the defendant in his trial, and the DUI charges should be dismissed.

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Read the Superior Court’s Opinion