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

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. 

PA Superior Court Finds Suspicionless Boat Searches Unconstitutional

On August 21, 2017, the Pennsylvania Superior decided the case of Commonwealth v. Karash, holding that the government cannot stop a boat without probable cause or reasonable suspicion. This was a case of first impression in Pennsylvania that will affect the thousands of people who utilize Pennsylvania’s waterways each year.

Commonwealth v. Karash

In Karash, the defendant was charged with not having the required safety equipment on his boat. On May 23, 2016, Mr. Karash was fishing on his boat when he was stopped by a waterways conservation officer. The officer did not see Mr. Karash do anything illegal prior to boarding his boat. Regardless, the officer boarded Mr. Karash’s boat to conduct a license check of those who were fishing. After this check was completed, and the occupants were cleared, the officer then performed a safety inspection. During this inspection, the officer determined that Mr. Karash did not have sufficient flotation devices and issued him a citation.

Mr. Karash contested his citation at a hearing. Mr. Karash litigated a Motion to Suppress where he argued that the officer lacked reasonable suspicion or probable cause to board his vessel in violation of his rights under the Pennsylvania Constitution. The magisterial district court denied his motion because 30 PA C.S. § 901 (a)(10) allows a waterways conservation officer to board a boat to make sure it is in compliance with the administrative aspects of the Fish and Boat Code (i.e. licensing requirements). It is important to note that this particular provision does not require an officer to have reasonable suspicion or probable cause for a government official to board one’s boat. After the hearing, Mr. Karash was found guilty of not having the required number of life vests and fined $75.

WHAT IS THE DIFFERENCE BETWEEN PROBABLE CAUSE AND REASONABLE SUSPICION?

Typically, a motion to suppress is a motion that asks a court to exclude evidence against a defendant because it was obtained when police acted without “probable cause” or “reasonable suspicion.” Probable cause and reasonable suspicion are similar, but distinct legal concepts.  Probable cause is mentioned in both the United States Constitution (the Fourth Amendment) and the Pennsylvania Constitution (Article I, Section 8). In order for the government to arrest you, there must be probable cause that you committed a crime. The Pennsylvania Supreme Court has defined “probable cause” as “the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime.” Commonwealth v. Thompson, 985 A.2d 928, 203 (Pa. 2009).

“Reasonable suspicion” is different. Unlike “Probable cause,” reasonable suspicion is not mentioned in either the U.S. or Pennsylvania constitutions. Despite this, courts have allowed police officers and other government officials to stop people on “reasonable suspicion” after the United States Supreme Court’s landmark decision in Terry v. Ohio. To be clear, “reasonable suspicion” is not as rigorous a standard as “probable cause.” Additionally, a person cannot be arrested or have their home searched based on “reasonable suspicion.” However, an individual can be detained for an “investigatory detention” based on “reasonable suspicion.”  The Pennsylvania Supreme Court defines “reasonable suspicion” as “a less stringent standard than probable cause…and depends on the information possessed by the police and its degree of reliability in the totality of the circumstances…a police officer must be able to point to ‘specific and articulable facts’ leading him to suspect that criminality is afoot.” Commonwealth v. Holmes, 14 A.3d 89, 95 (Pa. 2010).   

Typically, the government needs either “reasonable suspicion” or “probable cause” to detain someone. There are exceptions when the government can make a suspicionless stop of you (i.e. point-of-entry searches at public schools for weapons and DUI checkpoints). In determining whether a suspicionless check will be upheld, Pennsylvania courts employ a “balancing test…wherein the intrusion on the individual of a particular law enforcement practice is balanced against the government’s promotion of legitimate interests.” Commonwealth v. Blouse, 611 A.2d  1177, 1167 (Pa. 1992). Thus, the issue for the Karash Court was whether suspicionless checks for boats are constitutional.

As stated above, this was a case of first impression. Thus, the Karash Court looked for guidance from other jurisdictions to see how they ruled on this issue. The United States Supreme Court addressed a similar issue in United States v. Villamonte-Marquez. In its decision, the United States Supreme Court held that the federal government could conduct suspicionless "Customs checks" on vessels with close proximity to the open sea because of the complexity of the documentation required by federal law and the governmental interest in preventing smuggling. Thus, in Villamonte-Marquez, the United States Supreme Court upheld the warrantless and suspicionless search of a ship that resulted in finding thousands of pounds of marijuana.  

Can the Police Search a Boat Without Reasonable Suspicion or Probable Cause? 

Despite the ruling in Villamonte-Marquez, the Pennsylvania Superior Court declined to follow its holding. In Karash, the Pennsylvania Superior Court held, understandably, that ensuring recreational boater safety on Pennsylvania’s waters is a legitimate government interest. Nonetheless, the Karash Court also held that government had not demonstrated that it was unable to achieve its goal of recreational boater safety by a means other than suspicionless searches. 

The Karash Court analogized the Commonwealth’s waterways to its roads. Specifically, the Court focused on DUI Checkpoints. Pennsylvania allows DUI Checkpoints, but there are extremely strict limitations that the appellate have imposed on police departments in setting up these highly intrusive checkpoints. Police do not have “unfettered discretion” and along with other guidelines (i.e. prior notice, momentary stoppage of drivers, checkpoints placed on roads where DUI’s are more likely, etc.), courts have imposed rules to reduce the intrusiveness of the checkpoints so that they may comply with the Pennsylvania Constitution.  Commonwealth v. Tarbert, 535 A.2d 1035, 1037 (PA 1987).

The Karash Court held that the Commonwealth has not employed these same safeguards on its waterways. As such, the Karash Court held that Mr. Karash’s constitutional rights were violated when the waterways conservation officer boarded his boat without probable cause or reasonable suspicion. Thus, Mr. Karash’s conviction was overturned. 

Motions to Suppress

Goldstein Mehta LLC Philadelphia Criminal Defense Attorneys

Trials can be won and lost with a motion to suppress. If you are facing criminal charges, you need an attorney who has the knowledge and expertise to litigate these motions even when the law has yet to be conclusively established. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today. 

PA Superior Court Permits Appeal of Motion to Suppress Despite Guilty Plea

Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Singleton, permitting the defendant to appeal the trial court’s denial of a motion to suppress despite the fact that the defendant pleaded guilty. Singleton could have a dramatic impact on plea negotiations throughout the Commonwealth as it suggests that a defendant may be able to litigate a motion to suppress and reserve the right to appeal the denial of the motion to suppress as part of a negotiated plea. Before Singleton, it was not totally clear whether the Superior Court would reach the merits of an appeal in a case in which the defendant attempted to plead guilty as part of a “conditional guilty plea.”

Types of Guilty Pleas

In general, there are two types of guilty pleas – negotiated guilty pleas and “open” or non-negotiated guilty pleas. In the case of a negotiated guilty plea, the defense and the prosecution reach an agreement as to what charges the defendant will plead guilty and what sentence the judge should impose. For example, if the defendant is charged with felony Robbery but the Commonwealth has a shaky case, the prosecutor may offer a misdemeanor Simple Assault charge and probation in exchange for the guilty plea. The defendant avoids the risk of a felony conviction and jail time, and the prosecution obtains a conviction and restitution for the complainant. Thus, both sides may be happy with the result. When the defendant pleads guilty pursuant to a negotiated guilty plea, the judge may not reject the sentence and impose his or her preferred sentence. Instead, if the judge finds that the negotiated plea is either too harsh or too lenient, the judge must permit the defendant to withdraw the plea and go to trial if the defendant wishes to do so. Alternatively, the defendant may proceed to sentencing and allow the judge to decide on the sentence, which is often going to be worse than what was negotiated.

In the case of an open guilty plea, the defendant pleads guilty to the charges without any kind of negotiations. In many cases, the Commonwealth’s plea offer is simply unreasonable and should be rejected. At the same time, the defendant may not have a viable defense to the charges. The judge, who is tasked with resolving the backload of cases in the criminal justice system, may be willing to sentence the defendant to something significantly less than the sentence requested by the prosecution. Unfortunately, losing a trial is far more likely to result in a jail sentence than pleading guilty. Therefore, the defendant who is unlikely to win his or her case may be better served by pleading guilty and focusing on convincing the judge to impose a lighter sentence than the sentence sought by the Commonwealth. In an open guilty plea, both sides may make recommendations, present witnesses and evidence, and argue to the judge for the recommended sentence. The judge will then decide on the sentence. Open pleas are increasingly common due to the elimination of most of Pennsylvania’s mandatory minimum sentence laws.

Conditional Guilty Pleas in Pennsylvania

Following Singleton, there may be a third type of guilty plea called a conditional guilty plea. Conditional pleas are extremely common in New Jersey, but it has not been totally settled whether they are allowed in Pennsylvania. In a conditional guilty plea, a defendant who has lost a pre-trial motion such as a motion to suppress evidence may plead guilty pursuant to negotiations for an agreed upon sentence. As part of the negotiations, the Commonwealth may agree that the defendant can appeal the denial of the motion to suppress. In the case of a normal negotiated or open guilty plea, the defendant retains very few rights on appeal and cannot appeal the denial of a pre-trial motion. A conditional guilty plea allows the defendant to retain the right to appeal specified issues and still enjoy the certainty of the negotiations. Thus, the defendant does not have to risk receiving a greater sentence as a punishment for going to trial solely to preserve appellate rights.

Commonwealth v. Singleton

In Singleton, the defendant was arrested and charged with Possession with the Intent to Deliver. The defendant filed a motion to suppress. At the motions hearing, Philadelphia police officers testified that they were on patrol near a major train terminal which was a known location for drug sales. There had also recently been a number of robberies in the area. Officers testified that they saw the defendant wearing a hoodie which appeared to have a heavy object in the pocket. The officers were concerned that the object could be a weapon, so they approached the defendant, who had sat down on a ledge. As the officers approached, the defendant looked at them, took a black bag out of his sweatshirt, and placed it behind him. The officers continued to believe that the bag could contain a weapon.

Police asked the defendant about the bag, and the defendant did not answer. One of the officers testified that he was able to see through the side of bag and that it contained jars of red syrup, which the officer recognized as codeine syrup. The officers arrested the defendant for PWID and found both heroin and marijuana during a search incident to arrest. The trial court denied the motion to suppress, finding that the initial encounter with the defendant was only a mere encounter. The trial court further found that the officers observed drugs in plain view, which gave them the necessary probable cause to arrest the defendant and search him. Because police never officially stopped or searched the defendant prior to viewing the drugs, the court denied the motion. After the trial court denied the motion, the defendant entered into a conditional guilty plea with the prosecution. The plea provided for a sentence of 11.5 to 23 months of incarceration to be followed by five years of probation, and the plea agreement specifically provided that the defendant could appeal the denial of the Motion to Suppress.

On appeal, the Superior Court upheld the trial court’s order denying the Motion to Suppress. However, the case is notable for the fact that the Superior Court agreed to reach the merits of the issue despite the fact that the defendant had pleaded guilty. Normally, the guilty plea makes it impossible to challenge the denial of the Motion to Suppress on appeal. Here, the Superior Court ruled that because the plea agreement reserved the right to appeal and the Commonwealth did not object in its brief, the Court could reach the merits of the appeal.  

If this trend is upheld, Singleton creates less risk and more certainty for both sides as the defendant can accept a pre-trial offer for reduced charges or less jail time while still retaining the ability to challenge a wrongfully denied motion to suppress in the Superior Court. The Commonwealth, meanwhile, saves the time and expense of going to trial in a case in which the real defense was a pre-trial motion and not whether or not the defendant committed the crime. In many drug and gun cases, the real issue will be whether the police conducted a legal search and not whether the defendant possessed the contraband in question. Without the ability to enter into a conditional guilty plea, the defendant who has lost a strong motion to suppress has to choose between going to trial and potentially receiving a worse sentence and pleading guilty and waiving the right to appeal. Now, the defendant may not have to make that unfair choice.

Call For A Free Strategy Session With An Award-Winning Philadelphia Criminal Defense Attorney 

Goldstein Mehta LLC Criminal Defense Lawyers

As always, if you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have won countless pre-trial motions, bench trials, and jury trials, and we have also successfully resolved many cases through negotiations which resulted in excellent outcomes for our clients. We offer a 15-minute criminal defense strategy session to any potential client, so call 267-225-2545 to speak with one of our experienced and understanding defense attorneys today. 

PA Superior Court: Defendant Must Be Permitted To Rebut Commonwealth's 404(b) Prior Bad Acts Evidence

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Yocolano, holding that the defendant's conviction must be reversed because the trial court improperly prevented the defendant from rebutting the Commonwealth's 404(b) Prior Bad Acts evidence. Under the Pennsylvania Rules of Evidence, prosecutors may file a motion asking the trial court to allow them to introduce evidence of "prior bad acts" or crimes committed by a defendant. This type of evidence can be extremely prejudicial to the defendant, and the Superior Court has now ruled that the defense must be permitted to call witnesses to rebut this highly prejudicial testimony when such witnesses are available. 

Commonwealth v. Yocolano

In Yocolano, the defendant was charged with Aggravated Assault and various sexual assault charges against his paramour, who is referred to in the opinion as A.A. The testimony established that Mr. Yocolano and A.A. were in an on-again, off-again romantic relationship dating back to 2010 and had a child together. Throughout their relationship, there were multiple alleged instances of domestic violence. The police were called on several occasions. For example, in 2010, the police responded to a call that Mr. Yocolano had an altercation with A.A. where he chased her and caused damage to A.A.’s father’s house. In 2012, the police were called on several occasions including: an incident where police were called after Mr. Yocolano threatened A.A. with a machete; an argument between A.A. and Mr. Yocolano; A.A. calling the police on Mr. Yocolano after expressing suicidal thoughts after an argument between the two; A.A. filing a police report against Mr. Yocolano after he threatened and choked her; and Mr. Yocolano punching A.A. in the head and threatening to kill her and her family. In October of 2012, A.A. obtained a Protection from Abuse “PFA” against Mr. Yocolano. This incident led to the charges in question, and Mr. Yocolano was subsequently arrested.

Both before and during the trial, the Commonwealth filed multiple 404(b) motions in Mr. Yocolano’s case. Specifically, the Commonwealth sought to introduce evidence from the 2010 incident and three incidents from 2012. The prosecutors also sought to introduce two PFA’s against Mr. Yocolano filed by women other than A.A. on the fourth day of trial, and the trial court permitted the prosecution to introduce all of the prior bad acts evidence. 

What is a 404(b) Prior Bad Acts Motion?  

In most cases, a prosecutor may only use evidence against a defendant relating to the crimes alleged in the complaint. This means that prosecutors cannot simply tell a judge or jury that the defendant is a criminal or has a criminal record. A 404(b) Motion, commonly referred to as a “Prior Bad Acts Motion,” allows the Commonwealth to introduce prior acts against a defendant in the present criminal case against him under certain limited circumstances. A 404(b) motion cannot be used to prove a person’s character (i.e. that because a defendant did something bad once in their life, they are a bad person and thus did this crime), but rather it can be used to show motive, opportunity, intent, absence of mistake, knowledge, lack of accident, preparation, and plan. In domestic violence cases, 404(b) motions are common, and appellate courts have held that in some cases, they may be used to show “the continual nature of abuse and to show the defendant’s motive, malice, intent and ill-will toward the victim.” Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. Ct. 2016). Accordingly, prosecutors routinely argue that prior convictions or allegations of violence between the defendant and the complainant provided the defendant with the motive for the criminal behavior alleged in the current case or would show that the injuries could not have been caused as the result of an accident. 

Defending Against 404(b) Motions 

Obviously, prosecutors gain a tremendous advantage when they are permitted to inform a judge or jury of a defendant's prior record. The judge or jury become much less likely to be sympathetic and far more likely to believe that if the defendant committed a crime before, he or she must have committed a crime again. However, it is possible in many cases to successfully oppose these motions or limit the damage. In some cases, it may be possible to show a lack of similarity between the conduct or that the prejudicial effect would substantially outweigh any probative value. It also may be possible to successfully argue that the prior conviction does not establish any of the requirements which the Commonwealth must show. In other cases, it may be possible to call eyewitness from the other incidents to show that the other allegations are also false. Therefore, if you are charged with a crime and a prosecutor is seeking to introduce prior bad acts against you, it is imperative that you have a skilled attorney who can litigate a motion to prevent these prior bad acts from being introduced into trial or attempt to limit the damage by thoroughly investigating the allegations. In Mr. Yocolano’s case, his attorney was unsuccessful in opposing the three incidents from 2012, the incident from 2010, and the prior PFA’s which were filed by other women. 

Although the defense could not keep this highly prejudicial evidence out, the defense had thoroughly investigated the case and located a number of witnesses which were ready to rebut the prior bad act allegations. During the trial, the defense attempted to introduce evidence that would rebut the 2010 incident. However, the trial court precluded the defense from introducing evidence to rebut the claim, holding that it was “collateral.” Specifically, the trial court only allowed the defendant to introduce evidence that would rebut the allegations from December 6, 2012 (the day on which the crimes for which he was on trial allegedly took place) and was not allowed to introduce any evidence that would rebut the “prior bad acts” that the trial court had found admissible. Given all of this prejudicial testimony from other incidents, the defendant was ultimately convicted and sentenced to 18-36 years of incarceration.

Yocolano appealed, and the Superior Court reversed the conviction. The Court found that the trial court abused its discretion in preventing Mr. Yocolano from introducing evidence that would rebut these claims. The Superior Court cited an important Pennsylvania Supreme Court case called Commonwealth v. Ballard which held that “where the evidence proposed goes to the impeachment of the testimony of his opponent’s witness, it is admissible as a matter of right.” The Superior Court properly recognized that Mr. Yocolano should have been allowed to “test the veracity of A.A.’s version of events.” 

Protection from Abuse Orders and Rule 404(b)

The Superior Court also held that the trial court abused its discretion when it permitted the two PFA’s from different women to be introduced. Rule 404(b)(3) states that a prosecutor must provide “reasonable notice” if they seek to introduce these prior bad acts. Reasonable notice typically means that the prosecution must inform the defense in writing and in advance of the intent to introduce prior bad acts evidence. There are exceptions which allow the prosecution to introduce prior bad acts during trial where the prosecution can show good cause for the failure to provide prior notice. 

Unfortunately, it is not uncommon for prosecutors to provide the defense with previously undisclosed evidence on the day of trial. Most judges will either permit the defendant to continue the case or preclude the last-minute evidence from being introduced. However, in this case, the Commonwealth provided the unrelated Protection from Abuse Orders against Mr. Yocolono on the fourth day of trial. The Commonwealth stated that the reason for the late discovery was because the prosecutor had just looked in the computer system mid-trial and happened to find the records. 

The Superior Court rejected the Commonwealth's argument that this constituted good cause. The Court held that the Commonwealth’s excuse did “not qualify as a valid legal excuse.”  Further, the Superior Court was skeptical that these third-party PFA’s would have met the substantive requirements of 404(b). In Mr. Yocolono’s case, the trial court failed to analyze the facts of the two other PFA’s and identify “a close factual nexus sufficient to demonstrative the connective relevance of the third-party PFAs to the crimes in question.” Based on all of these errors, the Superior Court ordered that the sentence be vacated and that the defendant receive a new trial. 

Facing Criminal Charges? We Can Help 

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

Domestic violence and other assault cases are often more complicated than they would seem. In cases where the prosecution seeks to introduce prior bad acts evidence, the defense must thoroughly investigate the case and strongly oppose these 404(b) motions both on the law and on the facts. If you are facing criminal charges, you need an attorney who has the knowledge and expertise to defend your case. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.