Philadelphia Criminal Defense Blog
DUI Defense Update: Challenge to Blood Draw Refusal Evidentiary Presumption Waived by Failure to Raise Issue in Trial Court
DUI Litigation Following Birchfield v. North Dakota
The United States Supreme Court’s decision in Birchfield v. North Dakota created a number of issues in DUI litigation which have not yet been resolved. The Birchfield Court held that at a minimum, states may not impose criminal penalties on motorists who refuse to consent to a blood draw unless police first obtain a search warrant. As a result, much of Pennsylvania’s DUI law has been thrown into disarray, and there are a number of legal issues which still need to be resolved. These issues include the types of warnings and advice that police must provide to DUI suspects prior to requesting consent to a blood draw, whether a suspect’s refusal to consent to a blood draw without a warrant may be used against them as evidence of consciousness of guilt, and whether the police may draw blood from an unconscious Driving Under the Influence suspect.
Evidentiary Consequences of a Blood Draw Refusal
The Pennsylvania Superior Court has just declined to address one of these issues on appeal, finding that a DWI defendant who had not raised an evidentiary issue at trial could not raise it for the first time on appeal. Prior to Birchfield, it was well-accepted that the prosecution could use evidence of a motorist’s refusal to consent to a blood draw against them as evidence of consciousness of guilt. Although the refusal alone would not be enough to convict a criminal defendant, the trial judge or jury could infer from the defendant’s refusal that the defendant believed that evidence of intoxication would show up in the blood results. Thus, a refusal combined with other factors such as poor driving, an odor of alcohol or marijuana, and other evidence of that nature could combine to provide evidence of drunk driving or drugged driving beyond a reasonable doubt.
The Effect of Birchfield
Now that the United States Supreme Court (and Pennsylvania appellate courts) have held that blood draw refusals may not be used to increase the penalties or create new criminal penalties for DUI defendants, there have been a number of challenges to whether the previously mentioned evidentiary presumption of a refusal complies with the requirements of the United States and Pennsylvania Constitutions. In the case of Commonwealth v. Napold, the Pennsylvania Superior Court declined to decide this issue. The Court found that the issue was waived because Napold had not raised the issue by filing a motion in limine prior to trial or objecting to the evidence at trial. Thus, the Superior Court found that Napold had waived the issue by failing to properly preserve it by asking the trial judge to rule on the issue first.
Waiver Doctrine in Pennsylvania Criminal Appeals
Napold provides an illustration of Pennsylvania’s punishing waiver doctrine. Under Pennsylvania law, if the defense fails to object to something or have an issue resolved by the trial court either prior to trial or during trial, then the issue will be forever waived on appeal regardless of how patently inadmissible the evidence may have been. For example, if the prosecution attempts to introduce inadmissible hearsay testimony and the defense fails to object, the defendant cannot then argue that he or she was prejudiced by inadmissible hearsay on appeal. This is because the issue was not raised in the trial court, so the trial judge had no opportunity to correct the error. Most other jurisdictions provide some leeway in terms of an appellate court’s ability to review obvious or clear errors, but Pennsylvania does not.
Notably, the decision in Napold finding that the issue had been waived is different from many of the other Birchfield-related cases which dealt with sentencing. The issue of an illegal sentence may always be raised on appeal regardless of whether the issue was raised in the trial court. Therefore, challenges to Pennsylvania’s statutory mandatory minimum scheme for blood draw refusals were permitted despite the failure to raise those issues in the trial court.
As illustrated by Napold, evidentiary issues must be properly preserved, and whether or not the blood draw refusal can be used as evidence against a defendant will not be resolved by the appellate courts until a later date. Napold illustrates why it is critical even for criminal defense lawyers who only handle trials to be aware of what is happening in the appellate courts so that the defense attorneys can preserve issues in case the appellate courts rule in favorable ways for the defense.
Award-Winning Philadelphia Criminal Defense Attorneys and DUI Defense Lawyers
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.
If you are facing DUI charges or under investigation for any criminal defense, you need the assistance of one of our award-winning Philadelphia criminal defense lawyers. We have successfully represented thousands of clients, and we will use our skill and experience to help you achieve the best possible result. Call 267-225-2545 for a free criminal defense strategy session with one of our top-rated defense attorneys today.
Nebbia Orders | Getting a Nebbia Order Lifted in Philadelphia
Nebbia Orders require proof that the money for bail is coming from a legitimate source. We can help you get a Nebbia Order lifted.
In most Philadelphia criminal cases, the defendant will have bail set at preliminary arraignment. The defendant’s bail will be based on a number of factors, including ties to the community, previous criminal record, the nature of the charges, the strength of the evidence against the defendant, and other factors such as whether the defendant works or has prior failures to appear for court (bench warrants). Typically, if the defendant can pay 10% of the amount set by the bail commissioner, then the defendant will be released pending trial. However, in some cases, particularly those cases involving large quantities of drugs or financial crimes, the bail commissioner may also place a Nebbia Order on the defendant which can prevent the defendant from being released until the order is lifted.
What is a Nebbia Order?
A Nebbia Order is an order which prevents the defendant from being released even if the defendant can pay bail. Instead, the defense attorney must file a Motion to Lift the Nebbia Order before the defendant posts bail. The Motion must lay out exactly from where the funds which will be used to pay bail are coming in order to show that the funds for bail are not coming from illegal activities like selling drugs or financial fraud. Typically, this will mean showing that whoever is going to pay bail on the defendant’s behalf has either assets, savings, or credit sufficient to be able to afford to pay for the defendant’s bail. Thus, the Nebbia Order prevents the defendant from being released so long as the Order remains in place.
What happens if I post bail when I have a Nebbia Order?
If you post bail while you have a Nebbia Order, you will not be released. Therefore, you should always retain a criminal defense lawyer prior to posting bail so that the Nebbia can be addressed. Otherwise, the Court will likely hold onto the money until the case is over, but the defendant will remain in custody.
How do I get a Nebbia Order lifted?
Petitioning for the lifting of the Nebbia Order is relatively straight-forward, but it does require a criminal defense attorney. The defendant’s attorney must file a Motion to Lift the Nebbia Order and explain exactly where the bail money is going to come from. The defense will also be expected to provide proof that the person who is going to pay bail is going to use legitimate funds to do so. For example, if the bail is going to be paid by taking out a home equity line of credit on a house, the defense would be expected to provide proof that the loan has been approved by a bank.
Once the defense attorney files a Motion to Lift the Nebbia Order, the Court of Common Pleas Motions Judge will typically schedule a hearing in about a week in order to review the Motion and the proof of legitimate funds provided by the defense. In some cases, it may be possible to get a quicker hearing. In many cases, the Commonwealth may be satisfied that the money is indeed coming from a legitimate source and agree. In others, the Commonwealth could object, and then the Motions Judge would be required to rule on whether the defense has met its burden of providing sufficient proof that the funds are legitimate. Once the Judge is satisfied, the Judge will lift the Nebbia Order. The defendant may then post bail and be released pending trial.
Can I get my bail reduced also?
In many cases, if the defense is going to file a Motion to Lift the Nebbia Order, it may be possible to file a written Motion to Reduce Bail at the same time. Because the issue will be heard by the Court of Common Pleas Judge either way, there is often not much to lose (and potentially a lot to gain) by asking the Judge to also review the bail situation in general. Therefore, the defense can file both a Bail Reduction Motion and a Motion to Lift the Nebbia at the same time. Then, the Motions Judge can review both issues at the same time and potentially reduce bail while at the same time lifting the Nebbia Order.
Philadelphia Criminal Defense Lawyers for Bail Reductions and Nebbia Orders
Philadelphia Criminal Defense Lawyers - Goldstein Mehta LLC
The Philadelphia Criminal Defense Lawyers of Goldstein Mehta LLC have successfully defended thousands of clients against all types of criminal charges. We have been particularly successful in helping clients who are incarcerated following their preliminary hearing because they cannot afford bail in getting bail reduced, Nebbia Orders removed, and detainers lifted. Our award-winning defense attorneys offer a free criminal defense strategy session to anyone who is under investigation or facing criminal charges. Call 267-225-2545 to speak with one of our Philadelphia Criminal Lawyers today.
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Identity Theft Charges in Pennsylvania
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After-Discovered Evidence Motion | PCRAs and Appeals
Have witnesses recanted? Has new evidence been uncovered? An after-discovered evidence motion could help your loved one get out of jail.
Can I use new evidence to overturn a criminal conviction?
If the defense learns of new evidence after the defendant has been convicted but while the defendant is still serving a sentence, it may be possible to obtain a new trial by filing a post-sentence motion or PCRA Petition. For example, if new witnesses come forward or relevant video footage is uncovered, it may be possible to use that evidence to obtain a new trial. In general, Pennsylvania law provides a number of different ways to attack a criminal conviction or guilty plea. The normal appeals process involves filing post-sentence motions and if they are denied, an appeal to the Pennsylvania Superior Court. If that is not successful, the defendant may be able to challenge a conviction by filing a Post-Conviction Relief Act Petition.
After-Discovered Evidence Motions
Philadelphia Criminal Appeals Lawyer Demetra Mehta, Esq.
In addition to the normal appeals and PCRA process, there are also special motions which may be filed when the defense learns of new evidence or witnesses which would have made a difference and possibly led to a different outcome at trial. There are two types of after-discovered evidence motions, and the standard which must be met differs slightly depending on whether the case is still on appeal or whether the direct appeals have been exhausted.
Post-Sentence Motion for a New Trial
First, if the defendant has been found guilty but the case is still in the trial court for sentencing or post-sentence motions or it is still in the Superior Court for a direct appeal, the defense attorney must file a post-sentence motion with the court promptly upon the discovery of the new evidence. In order to obtain a hearing, the defendant must plead four things under Pennsylvania Rule of Criminal Procedure 720:
That the evidence was not available at trial to the defense despite the exercise of due diligence. This means that the defense must have taken reasonable steps to investigate the case and find the evidence. If the defense attorney did not conduct any investigation of any kind and should have interviewed a helpful witness who was mentioned in the discovery, then the motion will fail this prong.
The evidence is not cumulative. This means that if the defense already presented four alibi witnesses and would have presented a fifth alibi witness to testify to the same thing, the defense may fail this prong because the evidence would have been cumulative.
The evidence may not be used solely for impeachment. Thus, the fact that the defendant learns that a witness had a conviction for crimen falsi would likely not warrant a new trial. Instead, the evidence must be substantive – meaning a new witness who would testify to an alibi, or a new scientific method for testing DNA or fingerprints and corresponding results that would show that the defendant could not have committed the crime.
That the evidence would have resulted in a different verdict. This is often the hardest prong as witnesses who wait years to come forward may have credibility problems, and ultimately, the trial judge must rule on whether the witness would have made a difference at trial.
If the defense is able to plead all four of these things relating to the new evidence or new witness, then the trial court should hold a hearing on the after-discovered evidence motion, make findings of fact, and determine whether the defendant should receive a new trial. At the evidentiary hearing, the Court will typically hear testimony from the new witness or view the new evidence and also hear from the defense attorneys and possibly the defendant as to what steps were taken to locate the new evidence prior to trial.
After the Court holds an evidentiary hearing, the Court will then rule on each of these four factors. If the Court denies the motion, it may be appealed. However, the trial court has a great deal of discretion in evaluating these motions as the trial judge will view the testimony from the new witness and make a determination as to whether the witness is credible and would have made a difference, and these findings are difficult to overturn on appeal. Finally, it is important to note that an after-discovered evidence motion must be filed promptly.
Post-Conviction Relief Act Petitions (“PCRAs”) Based On New Evidence
Criminal Lawyer Zak T. Goldstein, Esq.
If direct appeals have been exhausted and the defendant is still serving a sentence, the defendant may file a Post-Conviction Relief Act petition seeking a new trial based on new evidence. Ordinarily, a PCRA Petition must be filed within one year from the date of sentencing (or the date on which the appellate courts uphold the conviction if appeals were taken). However, there is an after-discovered evidence to the one-year time limit which allows a defendant to file a new PCRA Petition based on after-discovered evidence within sixty days of learning of the evidence even if the Petition is filed more than one year from the date on which the sentence became final.
A PCRA Petition based on after-discovered evidence is very similar to the aforementioned Post-Sentence Motion. However, it differs slightly in that it must be filed within sixty days if the defendant is outside of the one year deadline for a PCRA. It also requires the defendant to show he or she did not know the fact(s) upon which he or she based her petition; and (2) they could not have learned those fact(s) earlier by the exercise of due diligence.
Ineffective Assistance of Counsel
The defendant could also take two different approaches in filing the PCRA. First, the defendant could attempt to meet the same standards as explained above and try to show that although the investigation was reasonably diligent, the evidence could not be uncovered. Alternatively, the defendant could attempt to introduce the new evidence through a PCRA challenge based on ineffectiveness of counsel by arguing that the defense attorney was ineffective and should have uncovered the evidence but did not adequately investigate the case. For example, if there was an alibi witness that was known to the defense in a Robbery case, but the defense took no steps to locate that person, then the PCRA Petition could allege that trial counsel provided ineffective assistance of counsel. However, this may not satisfy the previously mentioned sixty day extension because the defendant likely knew about the alibi witness. Whether the extension would apply depends on the facts of the individual case, making it important to consult with an attorney if you believe that new evidence could make a difference for you.
Commonwealth v. Shiloh
The recent case of Commonwealth v. Shiloh provides an example of after-discovered evidence in the PCRA context. In Shiloh, the defendant was convicted of selling drugs in part based on the testimony of a co-defendant, her sister. Specifically, she was convicted of multiple counts of delivery of a controlled substance, criminal use of a communication facility, conspiracy, and endangering the welfare of children, in connection with her participation in a drug operation. Her sister testified against her at trial, she was convicted, and she received 14-30 years of incarceration at sentencing.
Ms. Shiloh exhausted of all of her appeals and ordinary PCRAs, and she eventually filed a PCRA outside of the one year deadline for filing a PCRA. In the new PCRA, she alleged that her sister, who had testified against her, had prepared an affidavit admitting that she had received benefits from the prosecution in exchange for her testimony. Her sister also admitted to lying about receiving this consideration from the prosecution at trial. Shiloh included the notes of testimony from her sister’s sentencing in which the Commonwealth confirmed the existence of the agreement and asked for a reduced sentence due to the cooperation.
The trial court dismissed the PCRA Petition as untimely, and Shiloh appealed to the Superior Court. On appeal, Shiloh argued that the new evidence would constitute after-discovered evidence and that she could not have learned of it prior to trial. Whether or not Shiloh was entitled to the benefit of the previously discussed sixty day time limit for filing an after-discovered evidence PCRA came down to whether the “public record presumption” applied to her. As a general rule, PCRA Petitioners who are not in custody are expected to exercise due diligence in investigating their cases, meaning that if there are facts contained in public records such as the guilty plea colloquy of a co-defendant, then the facts will not constitute after-discovered evidence.
The public record presumption, however, does not apply to an incarcerated, pro se petitioner. The petitioner must still show that they exercised due diligence in conducting an investigation, but the presumption will not apply because pro se prisoners do not have access to the same resources and records as someone who is represented by counsel or someone who is not incarcerated. Because Shiloh was in custody for the duration of her appeals and PCRAs, the Superior Court reversed the finding of the trial court that she should have known about the guilty plea colloquy sooner and remanded the case to the trial court for an evidentiary hearing on when exactly Shiloh discovered or should have learned that her sister had cooperated against her and received benefits for so doing.
On remand, if Shiloh can show that she had no way of knowing about the cooperation and that the cooperation would have made a difference at trial, then she could be entitled to a new trial. Thus, after-discovered evidence motions can be extremely important because they could lead to the defendant receiving a new trial.
Award-Winning Philadelphia Criminal Defense Attorneys
Philadelphia Criminal Defense Attorneys Zak T. Goldstein, Esq. and Demetra Mehta, Esq.
if you are facing criminal charges or considering an appeal, 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 can also help you evaluate the likelihood of success in filing a PCRA Petition or direct appeal to the Superior Court. 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.
