Tuesday, March 25, 2014

The Importance of an Estate Plan

Even those of us with few assets would benefit from a comprehensive estate plan. An estate plan covers more than just who receives one's possessions after death. A complete plan also provides an authorized representative to sell or dispose of assets, pay bills and creditors, negotiate with creditors, and provide for a final resting place.

In addition to a standard will an attorney can draft up a power of attorney and a living will, which dictate what level of medical care one would receive. Possessing power of attorney for a relative, even if a spouse who would normally have the authority to make such decisions, makes things much easier to deal with in an emergency. And a living will provides clear guidance as to a person's wishes and can help prevent family squabbles in a difficult time.

Preparing an estate plan is not necessarily a complex or expensive process, and most attorneys have set forms to help expedite the process. Clients are not limited to the forms, however, as just about any request can be honored as long as it is prepared properly.

Saturday, March 22, 2014

Driving Under the Influence in Special Circumstances

Although the most common driving under the influence offense is a standard motorist with a BAC of .08 or higher, there are some special circumstances where different BAC rates apply. For example, driving a school bus only requires a BAC of .02 or higher to be considered intoxicated.

BENTON, Pa. (AP) — Police say a northeastern Pennsylvania school bus driver who believed she was taking children to school when she actually should have been taking them home was driving drunk.

School Bus Driver Arrested for DUI

Similarly commercial drivers, underage drivers, and some others also have lower BAC limits. The criminal and civil sanctions, including loss of license, can be more significant for people in these categories.

Friday, March 21, 2014

Possession or Possession with Intent to Deliver?

Police seize 373 pot plants

"Police have arrested a New York City man for allegedly possessing about 373 marijuana plants in a Tobyhanna residence and stealing $15,000 worth of electricity.

Wood faces charges of possession with intent to deliver, unlawful possession of a controlled substance, possession of drug paraphernalia and theft of services. Bail was set at $100,000."

Although 373 pot plants is a good indication someone is doing more than recreational use, there is no bright line that distinguishes when someone is producing narcotics for personal use or to distribute. That is a determination that ultimately must be made by a jury as the fact finder. It is certainly possible that someone with a large supply may be using it for his or herself only, just as it is possible for someone with a relatively small supply to be selling it to others. The amount of narcotics held by a person does not by itself determine whether the person intended to distribute it to others or to

The most difficult cases are those that fall in the middle. Where there's just enough present to support a finding either way. In those cases, the Jury must ultimately determine what the person's intentions were. This can be problematic for both the Prosecution and the Defense. How can you prove what was in someone's mind at the time of the offense? Generally circumstantial evidence is all that is available one way or the other.

Police and Prosecutors may overcharge someone in that middle range. Although the burden of proof is on the government to prove the person intended to distribute the narcotics it often unfortunately comes down to the defendant having to prove his innocence. There is no formal standard as to how to prove the intent to distribute, but common factors include:

Whether the person was employed. If not employed how did he or she generate sufficient income to live?
The person's own narcotic use. Does the amount found in his or her possession correlate to an amount that he or she would use on a regular basis?
The professionalism of the grow or production operation. Is the lab or greenhouse expensive and indicative of someone spending great sums of money to produce it?

None of these factors are determinative on their own, but they are matters a jury can consider to answer the question of what was in the defendant's mind.

Wednesday, March 19, 2014

The Traffic Stop

One of a citizen's most common interactions with a police officer is the traffic stop. Being pulled over for speeding, failing to use a turn signal, a malfunctioning brake or headlight, are all typical reasons why one would be pulled over. How a citizen reacts to being pulled over will have a tremendous affect on the extent of the hassle of the encounter.

A driver should always make sure his/her insurance, registration and license are within easy reach and everything is up to date. Driving without insurance can turn a $150 speeding ticket into a $500 or $600 headache.

Staying calm during the encounter and announcing what you're doing to the officer is also key. Officers may be jumpy or excitable and if one starts to argue with him/her there is a risk of escalating the situation.

Often Officers will ask "Do you know why I pulled you over?" Drivers are not required to answer this question. If it's plainly obvious why, like going 75 in a 25 MPH school zone, one should not lie and say, "no". That is more likely to upset the officer. In such a case the best policy is probably to refuse to answer. Something along the lines of "I'd rather not answer that question," should suffice.

The roadside search is another topic I'll be covering in the future, so we'll put that on hold for now.

After the officer issues the ticket and the person is free to go he or she should immediately consult an attorney. Most tickets require a response within 10 days. While the fine may not be high and it may cost just as much or more for a consultation with an attorney there are significant collateral consequences a driver needs to worry about. Collateral consequences are non-criminal penalties imposed, usually by PennDOT, such as license or registration suspensions. If the driver simply pleads guilty and pays the fine he or she may find out a month later about the license suspension, potentially after the appeal period has run. In such a case there may be nothing an attorney can do at that point.

Sometimes it makes sense to plead not guilty and fight the ticket. While most State Police Officers have cameras installed in their cars that begin recording prior to the takedown lights being activated, many smaller municipal departments do not. Additionally the cameras are sometimes faulty or the footage is lost by the time of hearing. Fighting the ticket isn't always about trying to prove oneself right, often it's about trying to reach an amicable resolution where the driver still receives some punishment, but not something as harsh as a license suspension. There are many options as to what can be done here.

Tuesday, March 18, 2014

Family Law 101 - No-Fault Divorce.

Pennsylvania was one of the slower states to adopt the "no-fault" divorce standard, which had been gaining traction since the 1940's. No-fault means that there is no requirement to show that the divorce is the fault of one party of the other. Common fault grounds include adultery, abandonment, cruel and inhumane treatment. Fault divorces can be nasty, contested, and expensive affairs. The no-fault standard eliminates these long and drawn-out legal battles and makes the process relatively simple. In many cases, the entire process need not take much longer than 3 months. The reason for the divorce generally has no impact on property distribution so even if the parties are fighting about how to split up their possessions claiming that one person is at fault won't have an affect.

Those who wish to can still file under fault grounds, but as mentioned it's often much more expensive and complicated. There may be reasons a person wants to file under fault grounds, for example religious persons concerned with how they will be treated by their organization may want to prove they are not the one responsible for the divorce. Getting an annulment often requires some fault ground. There may be familial issues at play as well.

Anyone interested in a fault or no-fault divorce should also consider the filing fees, which can vary considerably from county to county.

Wednesday, March 12, 2014

3.12.2014 Should one consent to a BAC (blood alcohol content) test?

One of the most important decisions a person has to make after being pulled over by a police officer for a traffic stop is whether to consent to a breathalyzer test. Pennsylvania is an "implied consent" state, which means by virtue of driving on the roads of the Commonwealth one is presumed to consent to a BAC test after being arrested for DUI. Refusing the test can result in significant penalties including additional license suspensions, more severe criminal penalties, and disqualification from the ARD program (more on ARD in a latter post).

There is no rule to follow when considering whether to consent to a BAC test, whether by blood or breath. Refusing the PBT (portable breath test) often offered by police officers on the side of the road carries no penalty. Refusing to perform FSTs (field sobriety tests) also carries no penalty. It is only after arrest, usually when one is taken to the police station for a breathalyzer or to the hospital for a blood draw that implied consent comes into play.

For a first time offender arrested for DUI it might make more sense to agree to a BAC test as often he or she would be accepted into the ARD program, which has significant benefits and has a much shorter license suspension period.

For second or third time offenders a conviction of DUI starts to carry heavy consequences including longer periods of incarceration and year+ license suspensions. Anyone with prior offenses should think carefully prior to consenting to a BAC test.

Unfortunately, Pennsylvania does not provide a right to consult an attorney prior to choosing whether to undergo a BAC test. Knowing how to react should one be arrested for DUI and asked to undergo a BAC test ahead of time should be a consideration of every driver, whether he or she is drinking or not. Remember that even prescription drugs, if taken in quantities that can affect driving, is also sufficient grounds for a DUI arrest.

DUIs are a significant source of revenue for local municipalities and the Commonwealth. As efforts to legalize medical marijuana continue the sphere of potential DUI defendants will grow. Anyone driving on the roads of Pennsylvania should be aware of his or her rights and know in advance how to respond to the request for a BAC test.

Monday, March 10, 2014

3.10.2014 Rule 600

The Eastern District Superior Court has just entered a decision in Commonwealth v. Colon, 2014 PA. Super 45, No. 3433 EDA 2012. It is an appeal from a denial of a Rule 600 motion in which it took the Commonwealth over 1,000 days to bring the defendant to trial. The Superior Court reversed the trial court's opinion and dismissed the charges.

Rule 600 is a rule of Pennsylvania Criminal Procedure that provides that a defendant must be brought to trial within 365 days of being charged (180 days if incarcerated). Although it is common for Courts to attribute many delays to the defendant if the Commonwealth does not make a legitimate effort to bring the case to trial it must be dismissed. This is different from a "statute of limitations" which dictates how long the Commonwealth has to charge the defendant, Rule 600 applies only after criminal charges have been filed.

It is not uncommon for low level cases such as DUIs or simple possession charges to roll past Rule 600 as police officers and prosecuting attorneys may not have them as a priority. Any defendant facing criminal charges should consult with an attorney to determine if a Motion to Dismiss for Rule 600 is appropriate.

T. Axel Jones, Esq.
Admitted to practice in Pennsylvania and Federal Bar.