Philadelphia Criminal Defense Blog

Zak Goldstein 12/2/19 Zak Goldstein 12/2/19

If Police Get a Search Warrant, You Have to Submit to a Blood Draw

The Superior Court has decided the case of Commonwealth v. Palchanes, holding that the trial court properly convicted the defendant of obstructing the administration of law or other governmental function. In this case, police obtained a valid search warrant for the defendant’s blood due to a suspected case of DUI, the defendant refused to submit to the blood draw, and the police then charged him with a violation of 18 Pa.C.S. Section 5101. This case makes it clear that the failure to comply with a valid search warrant can be punished criminally.

The Facts of Palchanes

The defendant was pulled over by Hellertown Police for speeding. The investigating officer ultimately concluded that the defendant was likely under the influence of alcohol. The officer placed him under arrest and transported him to the county’s DUI processing center. The defendant refused to submit to a warrantless blood draw, so the officers applied for and obtained a search warrant for the defendant’s blood. Even after officers presented the defendant with the search warrant, the defendant continued to resist the blood draw. Prosecutors eventually filed charges against the defendant for obstructing the administration of law or other governmental function and tampering with evidence. The Commonwealth subsequently withdrew the tampering charge. A jury found the defendant guilty of obstruction and not guilty of DUI, and the defendant appealed.

The Superior Court Appeal

The defendant appealed to the Pennsylvania Superior Court. On appeal, he argued only that the evidence was insufficient to support his conviction for obstruction. Per the crimes code:

A person commits a misdemeanor of the second degree if he intentionally obstructs, impairs or perverts the administration of law or other governmental function by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, except that this section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.

Thus, the crime has two elements: 1) an intent to obstruct the administration of law, and 2) an act of affirmative interference with governmental functions. Affirmative interference does not necessarily mean physical contact with an officer. Further, police are not obligated to inform you that you are going to be arrested or charged with a crime for failure to submit to a blood test or comply with a lawful order. Therefore, the Superior Court upheld the conviction in this case, finding that the defendant acted criminally in refusing to comply with the warrant.

Do I have to submit to a blood test if I have been arrested for DUI?

Based on this case, the answer is that it depends. If the police have not obtained a search warrant, then you do not have to submit to a blood test, and the failure to cooperate with the police in this regard cannot be used to subject you to criminal penalties or enhanced penalties for refusal upon conviction for DUI. It can, however, potentially be used as evidence against you as evidence of the consciousness of guilt in a DUI trial. If the police have obtained a search warrant, however, the Superior Court has now held you are legally required to comply with that search warrant and submit to the blood test.

Facing criminal charges? We can help.

If you are under investigation or facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients who were facing charges including DUI, Murder, Aggravated Assault, Possession with the Intent to Deliver, and Violations of the Uniform Firearms Code. We offer a free 15-minute criminal defense strategy session. Call 267-225-2545 to speak with an award-winning defense attorney today.

Zak Goldstein 11/28/19 Zak Goldstein 11/28/19

What happens at arraignment in Philadelphia?

There are two types of arraignment hearings in Philadelphia state court. The first occurs shortly after the defendant is arrested and is called a preliminary arraignment. The second, called formal arraignment, occurs shortly after the preliminary hearing if the defendant has been held for court on a felony charge or directly before trial where the defendant is going to trial in the Municipal Court on misdemeanor charges.

What is an arraignment?

The two types of procedures are very different because the preliminary arraignment is an important step in the process during which the defendant will have bail set by a magistrate or trial commissioner. The amount of bail that the defendant has to pay to be released is extremely important because if the defendant cannot afford to pay bail, then the defendant will be held in custody until either the case is resolved or a judge reduces the bail at a subsequent hearing. Unlike preliminary arraignment, very little happens at formal arraignment. Instead, the defendant is simply advised of the charges against him or her and given the opportunity to plead not guilty. Where the defendant is not in custody, we will typically waive the hearing so that the defendant does not have to make an extra trip to court. Thus, at both types of hearings, the defendant will be advised of the charges and given the opportunity to plead not guilty, but at preliminary arraignment, the defendant will have bail set by a magistrate. This makes the preliminary proceeding much more important.

What happens at the Preliminary Arraignment?

The first type of arraignment that occurs after a defendant has been charged with a crime in Philadelphia is the preliminary arraignment. This hearing takes place in the basement of the Criminal Justice Center. Once the defendant has been arrested, the defendant will typically be held at the police station for 10-20 hours while they are processed by the police. During that 10-20 hour period, the police will prepare reports, court officers will investigate the defendant’s background, call a family member to verify the defendant’s address, and make a bail recommendation, and the District Attorney’s Office will decide on the final charges that the defendant will face.

Once police and court officials complete that process, a trial commissioner will hold a hearing to advise the defendant of the charges and set bail. Unfortunately, there is no way to avoid being held for 10-20 hours during this processing period. However, in general, if you have an outstanding arrest warrant, we find that the best day to turn yourself in for a quick processing is on Tuesday mornings. In some cases, we have been able to have clients processed and seen by a magistrate in around six hours where they turn themselves in first thing on Tuesday morning.

Do I need a lawyer for Preliminary Arraignment?

Yes. The hearing takes place in the basement of the Criminal Justice Center roughly 10-20 hours after a defendant has been arrested. The trial commissioner, defense counsel if counsel has been retained, a public defender intern, and a District Attorney’s Office intern are all physically present in the building. The defendant participates in the hearing by video from the police station where the defendant is still being held. The commissioner will then read the charges to the defendant, provide the defendant with date of the first court hearing, and then accept argument from the prosecution and the defense as to what bail should be required before the defendant can be released.

Under the current system, the prosecution is generally asking for little or no bail for many non-violent crimes and misdemeanors, but bail can be very high for violent crimes, defendants with lengthy prior records, and certain felony offenses. Therefore, it is important, when possible, that you retain an attorney prior to turning yourself in so that you can have an attorney present for the bail hearing and get the lowest possible bail.

What happens after the Preliminary Arraignment?

If the defendant quickly makes bail (which can be paid online with a credit or debit card, in the courthouse, or at the prison), then the defendant will be released with a subpoena to return for a court date. If the defendant cannot make bail, then the defendant will be transported to the Curran-Fromhold Correctional Facility and detained until the defendant either makes bail, bail gets reduced, or the case gets resolved. This process is the preliminary arraignment, and it is an important part of the criminal justice process. Either way, in a felony case, the accused will receive a subpoena for a preliminary hearing court date.

What is Formal Arraignment?

Arraignment is a much less important part of the criminal justice process than the preliminary version. In Philadelphia, it generally takes place only in a felony case. When a defendant is charged with a felony in Philadelphia, the first court hearing after the preliminary arraignment is a preliminary hearing which takes place in front of a Municipal Court judge. At that hearing, the Municipal Court judge must determine whether there is enough evidence that the case should go forward to the Court of Common Pleas on felony charges, be remanded to the Municipal Court on misdemeanor charges, or be dismissed altogether. Assuming the prosecution introduces enough evidence that a felony occurred and the defendant committed the felony to send the case to the Court of Common Pleas, the court date after the preliminary hearing will be the formal arraignment.

Very little, if anything, actually happens at this hearing. If the defendant has retained a private criminal defense attorney, that attorney can waive the hearing so that the defendant will not have to appear. The public defender will not usually waive the hearing for a defendant. The defendant will then simply receive a new court date for a Pre-Trial Conference (SMART Room listing) at which the prosecution will make a plea offer and provide the defense with discovery such as the police reports, witness statements, videos, and other things of that nature. If the defendant is in custody due to a probation detainer or because the defendant does not make bail, then the defendant will not even be brought to the arraignment and will simply receive a new court date. If the defendant does not retain counsel and has a public defender, then the defendant will typically have to appear for the arraignment.

The trial commissioner will advise the defendant of the charges that have survived the preliminary hearing, the defense attorney will enter a not guilty plea on behalf of the defendant, and the parties will discuss whether there is any discovery that has been passed or whether discovery remains outstanding. The defendant will then receive a subpoena for the next court date, which will be the previously-discusssed Pre-Trial Conference (“SMART room” in Philadelphia).

In a misdemeanor case, the accused technically has the right to be arraigned by a Municipal Court judge directly before the trial takes place. This typically does not provide any benefit to the accused, so the defense will usually waive the reading of the charges in a misdemeanor case in order to expedite things as the charges have been provided in the complaint in advance.

The differences between the two hearings

The bottom line is that the preliminary arraignment takes place right at the beginning of the case and is an extremely important hearing. It is a crucial hearing in which the defense attorney can fight for low bail so that the client is not held in custody pending the resolution of the charges. The formal arraignment, however, is relatively insignificant and can typically be waived so that the defendant does not have to miss work or incur the cost in terms of time and lost wages of attending court for a date on which very little will happen.

What happens in the rest of the state?

in the rest of the state, less serious criminal cases are often initiated by police sending the defendant a summons in the mail directing the defendant to appear in court for a preliminary arraignment, to get fingerprinted, and to schedule a preliminary hearing. Philadelphia police do not do this; instead, they almost always simply arrest someone. In the rest of the state, once a defendant has received a summons, he or she can retain an attorney and make arrangements with the assigned detective to schedule the first hearing in the case where bail will be set and a preliminary hearing will be scheduled. This makes it much easier for a defendant to have a lawyer present for the hearing as the arrest is less likely to happen by surprise.

What happens at arraignment in New Jersey or Federal Court?

New Jersey and the Federal court system also have arraignment proceedings which are somewhat different. In both of those systems, arraignment occurs after a defendant has been indicted by a grand jury because those systems do not have preliminary hearings in the way that Pennsylvania does. Once a grand jury returns an indictment, the defendant goes before the assigned judge for the arraignment and is advised of the charges and typically enters a plea of not guilty. The judge will then set a schedule for the filing of pre-trial motions and exchange of discovery.

Are you facing criminal charges? We can help.

If you are facing criminal charges or may be under investigation by law enforcement, we can help. Our Philadelphia criminal defense attorneys have successfully defended thousands of clients in Pennsylvania and New Jersey. We offer a free 15 minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding criminal defense lawyer today.

Zak Goldstein 11/26/19 Zak Goldstein 11/26/19

Update: 10-year "look back" for DUI Runs from Prior DUI

When will my prior DUI count for my sentence in my new case?

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Mock, holding that the ten-year look back period for DUI offenses begins at the time of the conviction for the previous DUI, not when the defendant committed the prior DUI. This case is significant because in Pennsylvania, if you are convicted of a driving under the influence you could be subject to a mandatory minimum sentence. The mandatory minimum depends on whether you have any prior convictions for DWI, and a prior conviction can make the potential mandatory minimum significantly worse. Therefore, this case can make the potential exposure for a DUI worse for some defendants.

Commonwealth v. Mock

On June 3, 2006, the defendant was arrested for DUI. He was subsequently convicted of that DUI on March 27, 2007. Approximately ten years after he was arrested for his prior DUI, the defendant was arrested again for another DUI. Specifically, on July 10, 2016, at approximately 1:00 A.M., an officer with the Mifflin County Police Department stopped the defendant after observing him cross the fog and center lines several times while driving on the highway. The officer then arrested him and the defendant subsequently consented to a blood test which revealed a blood alcohol content of .21%. He was then charged with DUI-highest rate of alcohol.

Because of his prior conviction, the Commonwealth deemed the instant offense a second offense and graded it as a misdemeanor of the first degree. This is significant because it subjected the defendant to increased penalties. Before proceeding to trial, the defendant filed a motion to quash the information, arguing that the Commonwealth improperly characterized the new charge as a second offense. The defendant argued that § 3806(b) negates his 2006 conviction’s applicability because that DUI occurred in in June 2006, which was more than ten years from the date of his current offense.

The trial court rejected the defendant’s argument. The court’s logic was that because the defendant was not convicted of his prior offense until March 2007, his current DUI fell within the 10-year look back period of § 3806. In other words, it did not matter that he was arrested for his DUI in June of 2016; all that mattered was that he was convicted of the new offense in 2017. The defendant then proceeded to a stipulated bench trial and was convicted of DUI-highest rate of alcohol, as a second offense. The trial court sentenced the defendant to the mandatory minimum sentence of 90 days to five years imprisonment, as well as fines, costs, and related penalties. The defendant then filed a timely appeal to the Pennsylvania Superior Court.

The Defendant’s Appeal to the Superior Court

On appeal, the defendant argued that the Commonwealth improperly characterized the new offense as a second offense which subjected the defendant to enhanced grading and sentencing penalties. The Superior Court, in a divided opinion, denied the defendant’s appeal. The majority stated that it had analyzed the plain language of the statute and determined that “any conviction, regardless of timing, counts as a ‘prior offense.’” The majority therefore agreed with the trial court’s conclusion that the defendant’s DUI was properly graded as a second offense because his earlier conviction took place within ten years of his commission of the present offense. The defendant then filed a petition for allowance of appeal with the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear his case to resolve the question of, for purposes of § 3806, whether the court should use the date of the defendant’s conviction or the date of when the DUI occurred.

Why Does It Matter When I Was Convicted of My Previous DUI or When I Committed It?

The reason it matters is because of § 3806. § 3806 holds that if someone has a prior DUI conviction within ten years of their current DUI, then they are subjected to increased penalties. This is significant because in Pennsylvania, if you are convicted of a DUI you will be subjected to a mandatory minimum. The mandatory minimums differ depending on the particular DUI that you were convicted of. For example, let’s assume you are found guilty of § 3802 (D)(2) (driving while under the influence of a controlled substance. This is your first DWI so you will be subjected to the mandatory minimum of three days incarceration. However, if this was your second DWI, then you will be forced to serve 90 days incarceration. This is also a mandatory minimum sentence, and therefore the judge does not have discretion to lower the sentence. As one can see, the timing of one’s prior DUI can have profound consequences for an individual.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court denied the defendant’s appeal. In making its decision, the Pennsylvania Supreme Court was generally dismissive of the defendant’s argument. The Court analyzed the language of the § 3806 and found that it was clear that the ten-year look back period runs from the occurrence date of the present offense to the conviction date of the earlier offense. The Court concluded that this language is “unambiguous.” Further, the Court stated that if the Court were to adopt his interpretation of the statute it would produce “an absurd result” and that his reading of the statute was “merely a means to a preferred end.” As such, the Court found that the defendant was properly sentenced as a second-time offender. Consequently, the defendant will not get any relief and he will be forced to serve his sentence.

Facing Criminal Charges? We Can Help.

Goldstein Mehta LLC Criminal Defense Lawyers

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, DUI, 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 11/22/19 Zak Goldstein 11/22/19

PA Supreme Court: Forcing a Defendant to Reveal Password Violates 5th Amendment

Can the Police Force You to Reveal Your Computer Password in Pennsylvania?

The Pennsylvania Supreme Court decided the case of Commonwealth v. Davis, holding that the government cannot force you to provide the password to your computer without violating the Fifth Amendment even where the government can prove that you knew the password and it was your computer or electronic device. This decision represents a tremendous victory for privacy rights and Fifth Amendment rights and will likely have an impact on cases involving computer-related offenses such as possession of child pornography and even financial crimes. It is, however, important to remember that this decision does not prevent the police from searching your computer with consent or after obtaining a search warrant or from breaking into it themselves if they are able to do so. It also may not apply to federal agents. Nonetheless, you should remember that if the police are asking you for your password, you should ask to speak with a lawyer before giving it to them.

Commonwealth v. Davis

On July 14, 2014, agents of the Office of Attorney General (“OAG”) discovered that a computer at an identified internet protocol (“IP”) address that was registered with Comcast repeatedly utilized a peer-to-peer file sharing network, eMule, to share child pornography. Specifically, agents used a computer with software designed to make a one-to-one connection with the computer at the aforementioned IP address and downloaded a file, later confirmed to contain illegal pornography, which was saved to the OAG computer. Based upon its transfer and review of the file, the OAG obtained a court order to compel Comcast to provide subscriber information associated with the IP address. Comcast disclosed that the defendant was the subscriber and had registered to the account to his address.

The OAG then applied for, received, and executed a search warrant at the defendant’s apartment. One of the OAG agents informed the defendant that he was not under arrest, but that the search involved an investigation of child pornography. The defendant was then read his Miranda warnings and waived his Miranda rights. The defendant acknowledged that he was the sole user of a Dell computer. He admitted to having prior illegal pornography convictions, but denied the computer contained any illegal pornographic images. The defendant then declined to answer additional questions without a lawyer. Subsequent examination of the computer revealed that the hard drive had been “wiped,” which resulted in the removing of data entirely or rendering it unreadable. Prosecutors did not file charges at this time.

Some time later, a different OAG agent identified a different illegal video that was shared with a different IP address utilizing the eMule server. Another administrative subpoena was sent to Comcast regarding this IP address. Again, the results of the subpoena produced the defendant’s name and contact information. On October 20, 2015, the OAG executed another search warrant at the defendant’s residence. At the defendant’s apartment, the agents discovered a single computer, an HP Envy 700 desktop. After being Mirandized, the defendant informed the agents that he lived alone, that he was the sole user of the computer, and that he used hardwired internet services which are password protected. The defendant gave a statement that he previously watched pornography on the computer, that he believed to be legal; he previously had been arrested for child pornography; and that child pornography was legal in other countries so he did not understand why it was illegal in the United States. The defendant was then subsequently arrested.

While in transit to his arraignment, the defendant spoke openly about watching various pornographic movies, indicating that he particularly liked watching 10, 11, 12, and 13-year olds. An OAG agent then requested that the defendant then provide him with the password to the computer and the defendant responded “it’s 64 characters and why would I give that to you? We both know what’s on there. It’s only going to hurt me. No [expletive] way I’m going to give it to you.” While in the holding cell, the agents continued to inquire about the password, but the defendant would not tell them it.

The defendant was subsequently charged with two counts of disseminating child pornography and two counts of criminal use of a communication facility. On December 17, 2015, the Commonwealth filed a pre-trial motion to compel the defendant to divulge the computer password. The defendant responded by invoking his right against self-incrimination. A hearing was held, and the trial court granted the Commonwealth’s motion to compel. Specifically, the trial court relied upon the “foregone conclusion” exception to the Fifth Amendment privilege against self-incrimination and ordered the defendant to supply the Commonwealth with any passwords used to access the computer within 30 days. The defendant filed an interlocutory appeal.

The Superior Court’s Decision

The Superior Court affirmed the trial court’s decision. The Superior Court explained that the Fifth Amendment right against self-incrimination is not violated when the information communicated to the government by way of a compelled act of production is a foregone conclusion. The court reasoned that the foregone conclusion exception provides that an act of production does not involve testimonial communication where the facts conveyed already are known to the government. The defendant then filed a petition for allowance of appeal to the Pennsylvania Supreme Court, and the Court agreed to hear the case. The question for the Pennsylvania Supreme Court was: “May [the defendant] be compelled to disclose orally the memorized password to a computer over his invocation of privilege under the Fifth Amendment to the Constitution of the United States, and Article I, Section 9 of the Pennsylvania Constitution?”

What is the Fifth Amendment?

The Fifth Amendment of the United States Constitution provides that “no person...shall be compelled in any criminal case to be a witness against himself.” This privilege not only applies to a defendant in a criminal trial, but in any proceeding, civil or criminal, formal or informal, where the answers might incriminate the speaker in future criminal proceedings. Appellate courts have held that the privilege does not protect a suspect from being compelled to produce “real” or physical evidence. Thus, if the government knows that you have paperwork in your house that could implicate you in financial crimes, the government may still be able to compel you to produce that paperwork despite the fact that producing it incriminates you.

Instead, the privilege only protects an accused from being compelled to testify against himself, or otherwise provide the government with evidence that is testimonial or communicative in nature. To invoke the Fifth Amendment privilege against the forced provision of information, a defendant must show (1) that the evidence is self-incriminating; 2) the evidence is compelled; and 3) the evidence is testimonial in nature. Returning to the paperwork example, the government may not be able to compel you to produce paperwork that it does not really know about because the act of production admits that the paperwork is yours and therefore is testimonial.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the lower courts’ rulings and held that a defendant cannot be forced to provide his password when he asserts his Fifth Amendment rights. Specifically, the Pennsylvania Supreme Court found that the disclosure of a password is testimonial in nature and thus is entitled to Fifth Amendment protections.

In its decision, the Court made a distinction between physical production and testimonial production. Specifically, when the government compels a physical act, such production is not testimonial and the Fifth Amendment protections do not apply. However, an act of production may be testimonial when the act expresses some explicit or implicit statement of the fact that certain materials exist, are in the defendant’s custody or control, or are authentic. The crux of whether an act of production is testimonial is whether the government is forcing the defendant to use the “contents of his own mind” in explicitly or implicitly communicating a fact. Further, the Court held that the “foregone conclusion” exception as articulated by the United States Supreme Court did not apply to passwords and therefore was not applicable to the instant case. As such, the defendant will not be forced to provide the Commonwealth with his password, and they will not be able to use that information against him in his trial unless they can break into the computer on their own.

Should I give the police my password if they ask for it?

It is extremely important to remember that this case dealt with the police asking for a password after a court had ordered the defendant to provide it. In any other circumstance, it would be clear that the defendant did not have to give the police his password or speak with them at all. Instead, if you are under investigation or facing charges and police are asking you questions or asking for passwords, you should immediately ask to speak with an attorney prior to making a statement or helping them access your electronic devices.

Facing Criminal Charges? We Can Help.

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, VUFA, Possession with the Intent to Deliver, 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.