Criminal Defense

America’s Growing Socially Liberal Trend

Over the past decade, the citizens of the United States have developed a very clear, and very growing liberal trend. While this trend permiates nearly every aspect of the political spectrum, there is very clear concensus especially on socially liberal views. Analyzing all of the major data, this trend began in the mid to late 1990s, and has grown even stronger over the past 5 years since 2009.

How America views themselves:

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Single Parent: Increasing Moral Acceptance of Children out of wedlock:

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Abortion: Increasing position on Pro Choice:

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Death Penalty: Decreasing Favorability of Death Penalty:

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Gays: Homosexuality is Natural, not environment

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Gays: Strong Support for Gay Marriage

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Euthanasia: Growing Support for doctor assisted suicide

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Marijuana: Legalizing Marijuana

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Religion: Dramatic Rise in unaffiliated Religious Beliefs

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Update: Polling trend on various social issues
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Law Offices of Niels C Eriksen Jr, LLC
http://www.bucksattorney.com
(215) 750-8010

Mitigated Sentences for Prescription Drug Convictions

When Bucks County residents are convicted of committing serious drug offenses, their sentences will most likely be determined by Pennsylvania’s drug crimes sentencing guidelines. Sentencing guidelines include suggested minimum sentences for specific drug crimes as well as suggested maximum sentences for specific offenses.

Although there are guidelines for minimum and maximum sentences, those who are accused of committing drug crimes also need to understand that each case is unique and defendants may still be able to fight for sentences that are below minimum sentencing guidelines.

For example, a doctor from Philadelphia who was convicted last year of illegally selling prescription drugs has avoided being sentenced for the crimes based on minimum and maximum sentencing guidelines. The doctor is 79 years old and he has two adult daughters who have been in wheelchairs all of their lives as a result of a neurological disorder. After reviewing the man’s case, a judge decided that sentencing the man based on sentencing guidelines was not appropriate in this situation.

Although the man’s daughters have been able to go to college on their own and have earned advanced academic degrees, the man’s attorney argued that the doctor’s daughters are still dependant on their father and mother. In court, the man’s three daughters asked that the judge be lenient when sentencing their father. The man also suffers from several health complications, which could make his time in prison very challenging.

According to reports, the doctor was convicted in March 2012 of illegally selling prescription medications on several occasions between January 2005 and September 2010. He faced a minimum prison sentence of 12 ½ years for the crimes. After taking his situation into consideration, though, a judge concluded last week that the former doctor should be sentenced to serve seven years in prison and three years on probation. The doctor has also been sentenced to pay $40,000 in fines and some of his property may even be forfeited.

After announcing the sentence, the judge told the man that he was doing him a “favor.” The judge also noted that prescription drug use and abuse has become a significant problem and doctors need to be held responsible when they fail to distribute the medications under lawful and appropriate conditions.

Defendants who are facing drug charges will not want to proceed with their cases in court until they have developed a strategic defense and understand how the charges they are facing could affect them if they are convicted. An experienced and aggressive attorney will help folks handle these issues as strategically as possible.

Source: Philadelphia Inquirer, “‘Pill-mill’ doctor gets seven years in prison,” David Sell, Jan. 31, 2013

New Jersey, Delaware and the Federal Sports Betting Law

 

Recently, both the States of New Jersey and Delaware have challenged the Professional and Amateur Sports Protection Act of 1992 as a means in permitting Sports Betting at the casinos in their respective states. The Professional and Amateur Sports Protection Act (PASPA) was passed by the US Congress and signed into law by President George HW Bush in 1992. It is found in Title 23 US Code Chapter 178, Sections 3701 through 3704. Since Sports betting involves games and currency throughout the United States, the Commerce Clause of the US Constitution permits the federal law’s application throughout the country.

Section 3702 defines what is illegal under the Act:

It shall be unlawful for—
(1) a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact, or
(2) a person to sponsor, operate, advertise, or promote, pursuant to the law or compact of a governmental entity,
a lottery, sweepstakes, or other betting, gambling, or wagering scheme based, directly or indirectly (through the use of geographical references or otherwise), on one or more competitive games in which amateur or professional athletes participate, or are intended to participate, or on one or more performances of such athletes in such games.
 
Section 3704 defines the application of the federal law (In part and highlighted)
 
(a) Section 3702 shall not apply to

(1) a lottery, sweepstakes, or other betting, gambling, or wagering scheme in operation in a State or other governmental entity, to the extent that the scheme was conducted by that State or other governmental entity at any time during the period beginning January 1, 1976, and ending August 31, 1990;
(2) a lottery, sweepstakes, or other betting, gambling, or wagering scheme in operation in a State or other governmental entity where both—

(A) such scheme was authorized by a statute as in effect on October 2, 1991; and
(B) a scheme described in section 3702 (other than one based on parimutuel animal racing or jai-alai games) actually was conducted in that State or other governmental entity at any time during the period beginning September 1, 1989, and ending October 2, 1991, pursuant to the law of that State or other governmental entity;
 
In its simplest terms, no State can allows Sports betting UNLESS such a wagering scheme was previously in place in that state between January 1976 and October 1991. Nevada has always had sports betting in all forms and was always exempt from the federal law. THREE other states (including Delaware) had “some form” of sports betting during that time period.
 
DELAWARE:
As most people know, Delaware previously permitted a three team parlay bet (a two or more sports games betting wager) in 1976 as a means of increasing revenue. The original system was a complete failure, but Delaware was grandfathered under the federal law to permit sports betting. Once the Delaware casinos opened in the 2000s, Delaware wanted to offer sports betting and planned to issue a single game system of sports betting.
 
However in 2009, the Federal Appeals Court 3rd Circuit (Commissioner of Baseball vs Markell, Docket 09-3297) affirmed the District Federal Court and found that a single game wager system violated federal law because Delaware’s single game system wasn’t similar to the original three team parlay system in place in 1976. One can always argue how broadly or narrowly you can interpret “similar”. As of today, Delaware is only permitted three team parlays.
 
The Delaware ruling is, in essence, a joke, since any third grade math class teaches us that three, three team parlay bets with one team as the anchor is essentially a single game wager. Accordingly, smart bettors in Delaware have adopted this strategy to legally circumvent the Federal Law. See: http://www.gambling911.com/gambling-news/bettors-find-loophole-delaware-sports-betting-rules-110711.html
 
NEW JERSEY:
The State of New Jersey faces a much more difficult situation because no prior wagering scheme existed from 1976 to 1991. New Jersey could not grandfather past sports wagering, unlike Delaware. New Jersey passed a sports betting law permitting sports gambling in 2011. This law was immediately challenged by MLB, NCAA, NFL, NHL, and the NBA.
 
New Jersey argued that the 1992 Federal Law was unconstitutional. In 2013, both the Federal District Court and the Third Circuit Court held the law to be Constitutional. New Jersey was prohibited from allowing Sports Betting.
 
On September 8, 2014, Governor Christie issued a directive that NJ Casinos are free to allow sports betting. Under a creative argument, while there is no NJ law permitting sports betting, there is nothing in NJ law prohibiting casinos from offering sports betting either. In essence, Governor Christie has said the State of New Jersey wont stop you, if you want to offer sports betting. A creative reading of section 3702 only prohibits a government from allowing sports betting, or person (including companies) “from allowing sports betting pursuant to a government law“.
 
Could it be that third grade English class has defeated Congress and the Federal law for New Jersey, like third grade math class defeated it for Delaware?

10 Tips You Need to Know to Restore and Maintain your Pennsylvania Driver’s License

Pennsylvania Driver’s License Restoration Attorney Niels C Eriksen Jr, Esquire

1. Your Pennsylvania Driver’s License is more important than you think

Pennsylvania Courts have held that the continued possession of a driver’s license is essential in the pursuit of a livelihood. Your driver’s license is a Privilege granted by Pennsylvania, Not a Right. Maintaining a clean driving record is vital for a variety of life situations. Lower car insurance premiums, employment, professional licenses, job applications, health care emergencies, life insurance, loans, etc.

2. PennDOT records contain errors

The Pennsylvania Department of Transportation (PennDOT) is solely responsible for maintaining the driving record of every motorist in the Commonwealth of Pennsylvania. In maintaining millions of records, errors are not uncommon. By far, the most common error is an incorrect address. Pennsylvania Law places the burden on the driver to ensure that his/her address is correct. Every driver should know what their record contains, and immediately correct any inaccuracies. Obtaining and Reviewing your record is an inexpensive process, and more information can be found on our website http://www.bucksattorney.com

3. Out of State Convictions will NOT appear on your Driving Record

The Pennsylvania Driver Manual states that “although reported to PennDOT, minor out-of-state traffic offenses, such as speeding, will NOT appear on your driving record and Points will NOT be assessed”. There are 2 important exceptions: 1) Failing to Respond to an out-of-state citation will result in an indefinite suspension, and deny renewing your license, and 2) the Interstate Compact Offenses (DUI, Homicide by vehicle, Leaving an accident, and certain felonies) will result in a suspension as if the offense occurred in Pennsylvania.

4. Reduce Points and Reduce Fine

Insurance companies base premiums on the number of convictions and points on your license. Your insurance company’s declaration page is an excellent resource to find the increased surcharges for convictions and points. Police frequently negotiate tickets for reduced points and fines. Hiring a lawyer can increase the odds that an officer will reduce your ticket. An accumulation of 6 points will result in a departmental hearing and/or suspension. Points are removed at a rate of 3 points for every 12 months of safe driving without a citation.

5. Know WHY you’re Suspended

Most people do not know the reason why PennDOT has suspended their license. The most common reason is failing to respond to a citation; either by failing to notify the court of your plea, or failing to follow the payment plan. Sometimes, the local court fails to notify PennDOT that a driver has responded to a citation. Your license will remain suspended until PennDOT has received notice from the court of your response. Always make sure PennDOT has an accurate driving record, and immediately correct any errors.

6. Even if you’re Suspended, you can get a Driver License

PennDOT has several types of licenses available for drivers who are suspended. These licenses allow you to work, provide for your family, and perform necessary life functions. You may be immediately eligible for an Occupational Limited License (OLL). Even if your license is suspended for years, you may be eligible for a Probationary License (PL). Contact a lawyer to review your record for eligibility.

7. Get Proper Credit toward your Suspensions

A common error arises when a driver loses their license, fails to submit their license to PennDOT, or an officer takes their license during a traffic stop; and then mistakenly believes that they are receiving credit towards a suspension. PennDOT does not begin credit towards any suspension unless a driver submits his actual license (and any permits) OR submits an Affidavit acknowledging the suspension (DL16 form). If you have not been receiving credit, you can petition PennDOT for an administrative hearing to review your credit record.

8. PennDOT decisions are NOT final

Never accept a Suspension letter or restoration letter as a final decision without consulting an attorney. Virtually all PennDOT decisions can be appealed. If PennDOT suspends your license, an appeal of that suspension may be possible. If you disagree with a decision, PennDOT permits administrative hearings in Harrisburg concerning disputes over your license status. Always consult an attorney.

9. Never Refuse a Chemical Test

The penalty for refusing an officer’s request for a chemical test during a DUI investigation is a 1 year suspension of your license. Often, the refusal can be more devastating to a driver than the arrest and conviction or diversionary program (ARD) for DUI, especially if the driver has no prior criminal record. Under Pennsylvania law, anything short of an express assent to submit to a chemical test is considered a refusal. If you are a Pennsylvania driver stopped for suspicion of DUI, never refuse a chemical test.

10. Old Convictions can be REMOVED

You have 30 days to appeal any decision made by a district court. However under certain circumstances, prior convictions past the 30 day deadline can be reopened and negotiated to a lesser offense. If you are still suffering the effects of a traffic conviction or failed to understand the consequences of pleading guilty to an offense, contact an attorney to decide whether that conviction can be reopened.

 

Criminal Trial Guide in Pennsylvania

This guide serves as a general overview of the criminal trial process from arrest through appeal in the Commonwealth of Pennsylvania. Each case, each Pennsylvania County, and each client may have specific rules and needs which can deviate from this general guide. This guide is not a substitute for legal advice. Please consult an attorney regarding specific facts and issues which may affect your case.

1. Arrest and Preliminary Arraignment

Most criminal cases in Pennsylvania begin with the arrest of the Defendant. Most felonies require an immediate arrest and processing. While most misdemeanors, the charges can be issued by summons in the mail to the Client. Following the arrest and processing, the Defendant is brought (or by video) before a district judge to have bail and bail conditions set. An appearance before the district magistrate generally occurs within hours of arrest and processing. A Defendant has the right to have an attorney present before the district magistrate, and the right to argue for bail on behalf of the Defendant.

2. Court of Common Pleas Bail Hearing

All Defendants have the right to have all bail decisions made by the district magistrate reviewed by the Court of Common Pleas (the “higher” court). The exact process for a Common Pleas bail review can vary greatly from County to County.

3. Preliminary Hearing

At the preliminary arraignment, the district magistrate will set a date for the preliminary hearing. This date must be set within 10 days of the arrest, but is often continued due to the availability of witnesses , attorneys, and evidence. The purpose of the preliminary hearing is for the Commonwealth to establish a Prima Facie case against the Defendant. The Defendant does not put on a defense, but has the right to review and cross examine the witnesses and evidence against them. Credibility is not at issue at a preliminary hearing, neither is guilt or innocence. In its simplest form, a preliminary hearing is used to determine whethere there is “some evidence” against the Defendent so that the case can proceed to trial. The preliminary hearing serves as a gatekeeping function to dismiss charges and cases where there is not sufficient evidence against a Defendant to proceed to trial

4. Formal Arraignment

The formal arraignment generally occurs 1-3 months following the preliminary hearing. Again, very dependent on county rules and county backlog. In most counties, the formal arraignment can be waived if an attorney is retained. The Defendant need not appear if they have retained counsel. The purpose of the formal arraignment is to advise the Defendant of the trial date, trial rights, the penalties for each crime charged, and other local county practices. Usually, when a Defendant has hired an attorney, the court assumes that the Defendant has been advised of their rights and options.

5. Discovery Process

Following the formal arraignment, the Defendant is entitled to Discovery. Essentially, the Defendant is entitled to all police reports, expert reports, photographs, witnesses, criminal histories, and all evidence against them. The attorney for the defendant will receive this Discovery.

6. PreTrial Motions

Within 30 days of the Formal Arraignment, the Defendant must file all pretrial motions in their case. This may include Suppression motions, Discovery motions, Limiting motions, Dismissal motions, etc. An experienced attorney, after reviewing the discovery, will be necessary to file appropriate motions necessary to defend your case. You will lose the right to litigate these motions if they are not filed. A hearing on these motions will be required prior to trial. The scheduling of that hearing will vary from county to county. Some counties will give their own pretrial date. Other counties will litigate the motions on the day of trial.

7. PreTrial Diversionary Programs

Following the formal arraignment is GENERALLY the time to file for a diversionary program if applicable. This may include ARD, Drug Court, Veterans Court, Youthful Offender court, etc. The types of programs available, eligibility for these progtrams, applications, and the timing of the applications will vary greatly from county to county

8. TRIAL (jury or Waiver)

Once discovery has been completed, and all pretrial motions litigated, the court will schedule a trial date. Defendants may or may not receive a plea offer from the District Attorney prior to trial. The defendant will also accept entry into a diversionary program prior to trial. Trials generally occur anywhere from two to five months following the formal arraignment, but this timing is highly suspect due to the seriousness of a case and the availability of witnesses, experts, and officers. The Defendant has the option of a Judge ONLY trial (waiver trial) or a jury trial. In a jury trial, the defense and the District attorney will select the final panel from members of the community chosen at random. In a waiver trial, the judge alone hears the case, and make the determination of guilty or not guilty. Both a judge or jury must decide guilt BEYOND A REASONABLE DOUBT.

9. Sentencing

Sentencing occurs following a conviction at trial, or following a guilty plea or plea offer. Sentencing can be immediate or deferred for a period of time, depending on the circumstances. Some counties require a presentence report. Other counties will allow the Defendant’s counsel to prepare their own mitigation. The sentence given is a function of sentencing guidelines, which is a matrix of prior offenses and severity of the present conviction. Some crimes require mandatory sentencing. Sentencing is an extremely complicated process requiring an experienced counsel. In addition to the guidelines, there are a number of setencing alternatives that may be availabile, including: House Arrest, Work Release, SIP, RRRI, etc.

10. Post Trial / Sentence Motions

The Defendant has the right to file Post Sentence or Post Trial motions within 10 days of their sentencing. These motions may include Motions for Reconsideration of Sentence, Motions to overturn the conviction, or Motions for a sentencing program. There are numerous options available in Post Sentence motions

11. Direct Appeal

A direct appeal to the Superior Court must be filed within 30 days of Sentencing, or within 30 days following a ruling on the Post Sentence motions. All appeals by the Superior Court are based on a review of the trial court record to determine whether errors were made. Direct Appeals do not permit new evidence or witnesses to by presented, but a review of what has already transpired.

12. Violations of Probation or Parole

Once a sentenced Defendant is released on parole or probation. Their behavior during the additional supervision make cause a violation of their probation or parole. The VOP hearing is a mini trial where the Defendant challenges or explains their conduct, and argues for an appropriate sanction, if any.

If you have any questions, or need an attorney. Please contact me.
Niels C Eriksen Jr, Esquire

Bucks County Criminal Defense Attorney

An Arrest does Not mean Guilt!

A 27-year-old Philadelphia man was accused of drug trafficking after authorities allegedly found large quantities of heroin and cocaine on his person. He was arrested after allegedly attempting to flee from police who were supposedly serving another unrelated warrant in his area. Police allegedly confiscated three cell phones, large quantities of drugs and a little over US $2000 from Mr. Quinn before taking him to jail on a $50,000 bail. He was arrested on the 100 block of Hampden Road at around 9:30 p.m. on July 13.

Mr. Quinn was charged as being a major drug dealer in the area. The amount for bail seemed excessively high to some legal experts; however, the police superintendent upheld the decision of the court and the actions of his officers who were not in the area to serve any type of procedure on the Philadelphia man initially.

Although the man drew attention to himself by fleeing police, the actions of the police may not have been consistent with Philadelphia law. However, in order to present this properly in court, the accused man may need to hire a legal professional who is experienced with the drug trafficking and law enforcement statues in the area.

Drug trafficking laws are becoming ever more draconian in certain Philadelphia territories, and just because someone has been accused of a crime, does not mean that he or she has committed it. It may be beneficial to hire a defense when the stakes are this high. The system can sometimes seem overwhelming. A criminal defense attorney may be able to make the legal systems easier to comprehend for their clients and may be able to construct an effective defense.

Source: Delaware County Daily Times, “Man facing drug charges”, Linda Reilly, July 16, 2013

Attorney General moves for suspension of Nursing License

The Delaware State Attorney General has called for the Board of Nursing to permanently suspend the professional license of a Delaware nurse who was recently charged with several Pennsylvania drug offenses. Authorities allege that the nurse, a 37-year-old man who is licensed to practice in Delaware but who had been employed at DuBois Regional Medical Center in central Pennsylvania, was in possession of four bags of cocaine and 33 bags of heroin. Stating that he believes the nurse to be an “immediate and imminent danger to public health,” the attorney general reportedly generated the emergency petition to ensure that the nurse will permanently lose his license and never be able to work in Delaware.

The nurse was taken into custody on July 13 by the Towamencin Township Police. He was charged with two counts of drug possession, possession of drug paraphernalia and receipt in commerce of a controlled substance. He has reportedly resigned from his position at DuBois Regional Medical Center and faces an October hearing.

While the nurse’s alleged acts are serious, they are at this point only charges. While it may benefit the attorney general to take a tough stance against a health care professional who allegedly committed these offenses, the accused has not been convicted of any crime. He is protected by a presumption of innocence and entitled to due process of law.

When a member of the health care profession is charged with drug offenses, a lawyer will have to challenge the evidence on two fronts: at an administrative hearing in front of the licensing authority as well as in the courtroom. The mere the fact of an arrest does not always rise to the level of unprofessional conduct in the one forum, nor is it proof beyond a reasonable doubt in the other.

Source: delawareonline, “Delaware nurse faces drug charges; emergency license suspension sought“, Terri Sanginiti, July 31, 2013

Pennsylvania drug laws can result in police seizing property

After a man was convicted of possessing prescription drugs for sale, the Philadelphia District Attorney decided to seize his home according to laws that permit asset forfeiture. The department confiscates between 300 and 600 pieces of real estate annually in cases of drug possession with the intent to deliver. Along with small seizures of cash and property, the Philadelphia DA brings in revenues of about $6 million annually through the confiscations.

While the agency characterizes their actions as a public service, alleged criminals can sometimes be denied their rights for relatively minor crimes even though they have no prior criminal history. In fact, the property owner doesn’t need to be charged, let alone convicted, in order for the DA to seize the land. The city can legally freeze a person’s assets before the case even begins, which means it can be challenging to retain legal counsel.

Despite the father’s conviction, the family claims the drug possession was for personal use only. The DA evicted the family from their residence; they were homeless and went to stay with a relative. Although the government eventually gave up their attempts to seize the house, by then, the family had fallen behind on mortgage payments and the bank foreclosed on the home.

Pennsylvania drug forfeiture statute can be found at 42 PaCSA 6801, et seq, which provides:

§ 6801.  Controlled substances forfeiture.
        (a)  Forfeitures generally.–The following shall be subject
     to forfeiture to the Commonwealth and no property right shall
     exist in them:
            (1)  All drug paraphernalia, controlled substances or
        other drugs which have been manufactured, distributed,
        dispensed or acquired in violation of the act of April 14,
        1972 (P.L.233, No.64), known as The Controlled Substance,
        Drug, Device and Cosmetic Act.
            (2)  All raw materials, products and equipment of any
        kind which are used, or intended for use, in manufacturing,
        compounding, processing, delivering, importing or exporting
        any controlled substance or other drug in violation of The
        Controlled Substance, Drug, Device and Cosmetic Act.
            (3)  All property which is used, or intended for use, as
        a container for property described in paragraph (1) or (2).
            (4)  All conveyances, including aircraft, vehicles or
        vessels, which are used or are intended for use to transport,
        or in any manner to facilitate the transportation, sale,
        receipt, possession or concealment of, property described in
        paragraph (1) or (2), except that:
                (i)  no conveyance used by any person as a common
            carrier in the transaction of business as a common
            carrier shall be forfeited under the provisions of this
            section unless it shall appear that the owner or other
            person in charge of such conveyance was a consenting
            party or privy to a violation of The Controlled
            Substance, Drug, Device and Cosmetic Act;
                (ii)  no conveyance shall be forfeited under the
            provisions of this section by reason of any act or
            omission established by the owner thereof to have been
            committed or omitted without his knowledge or consent,
            which absence of knowledge or consent must be reasonable
            under the circumstances presented;
                (iii)  no bona fide security interest retained or
            acquired under 13 Pa.C.S. (relating to commercial code)
            by any merchant dealing in new or used aircraft, vehicles
            or vessels, or retained or acquired by any licensed or
            regulated finance company, bank or lending institution,
            or by any other business regularly engaged in the
            financing of, or lending on the security of, such
            aircraft, vehicles or vessels, shall be subject to
            forfeiture or impairment; and
                (iv)  no conveyance shall be forfeited under this
            section for violation of section 13(a)(31) of The
            Controlled Substance, Drug, Device and Cosmetic Act.
            (5)  All books, records and research, including formulas,
        microfilm, tapes and data, which are used or intended for use
        in violation of The Controlled Substance, Drug, Device and
        Cosmetic Act.
            (6)  (i)  All of the following:
                    (A)  Money, negotiable instruments, securities or
                other things of value furnished or intended to be
                furnished by any person in exchange for a controlled
                substance in violation of The Controlled Substance,
                Drug, Device and Cosmetic Act, and all proceeds
                traceable to such an exchange.
                    (B)  Money, negotiable instruments, securities or
                other things of value used or intended to be used to
                facilitate any violation of The Controlled Substance,
                Drug, Device and Cosmetic Act.
                    (C)  Real property used or intended to be used to
                facilitate any violation of The Controlled Substance,
                Drug, Device and Cosmetic Act, including structures
                or other improvements thereon, and including any
                right, title and interest in the whole or any lot or
                tract of land and any appurtenances or improvements,
                which is used, or intended to be used, in any manner
                or part, to commit, or to facilitate the commission
                of, a violation of The Controlled Substance, Drug,
                Device and Cosmetic Act, and things growing on,
                affixed to and found in the land.
                (ii)  No property shall be forfeited under this
            paragraph, to the extent of the interest of an owner, by
            reason of any act or omission established by the owner to
            have been committed or omitted without the knowledge or
            consent of that owner. Such money and negotiable
            instruments found in close proximity to controlled
            substances possessed in violation of The Controlled
            Substance, Drug, Device and Cosmetic Act shall be
            rebuttably presumed to be proceeds derived from the
            selling of a controlled substance in violation of The
            Controlled Substance, Drug, Device and Cosmetic Act.
                (iii)  No valid lien or encumbrance on real property
            shall be subject to forfeiture or impairment under this
            paragraph. A lien which is fraudulent or intended to
            avoid forfeiture under this section shall be invalid.
            (7)  Any firearms, including, but not limited to, rifles,
        shotguns, pistols, revolvers, machine guns, zip guns or any
        type of prohibited offensive weapon, as that term is defined
        in 18 Pa.C.S. (relating to crimes and offenses), which are
        used or intended for use to facilitate a violation of The
        Controlled Substance, Drug, Device and Cosmetic Act. Such
        operable firearms as are found in close proximity to
        illegally possessed controlled substances shall be rebuttably
        presumed to be used or intended for use to facilitate a
        violation of The Controlled Substance, Drug, Device and
        Cosmetic Act. All weapons forfeited under this section shall
        be immediately destroyed by the receiving law enforcement
        agency.
        (b)  Process and seizure.–Property subject to forfeiture
     under this chapter may be seized by the law enforcement
     authority upon process issued by any court of common pleas
     having jurisdiction over the property. Seizure without process
     may be made if:
            (1)  the seizure is incident to an arrest or a search
        under a search warrant or inspection under an administrative
        inspection warrant;
            (2)  the property subject to seizure has been the subject
        of a prior judgment in favor of the Commonwealth in a
        criminal injunction or forfeiture proceeding under this
        chapter;
            (3)  there is probable cause to believe that the property
        is dangerous to health or safety; or
            (4)  there is probable cause to believe that the property
        has been used or is intended to be used in violation of The
        Controlled Substance, Drug, Device and Cosmetic Act.
        (c)  Seizure without process.–In the event seizure without
     process occurs, as provided herein, proceedings for the issuance
     thereof shall be instituted forthwith.
        (d)  Custody of property.–Property taken or detained under
     this section shall not be subject to replevin, but is deemed to
     be in the custody of the law enforcement authority subject only
     to the orders and decrees of the court of common pleas having
     jurisdiction over the forfeiture proceedings and of the district
     attorney or the Attorney General. When property is seized under
     this chapter, the law enforcement authority shall place the
     property under seal and either:
            (1)  remove the property to a place designated by it; or
            (2)  require that the district attorney or Attorney
        General take custody of the property and remove it to an
        appropriate location for disposition in accordance with law.
        (e)  Use of property held in custody.–Whenever property is
     forfeited under this chapter, the property shall be transferred
     to the custody of the district attorney, if the law enforcement
     authority seizing the property has local or county jurisdiction,
     or the Attorney General, if the law enforcement authority
     seizing the property has Statewide jurisdiction. The district
     attorney or the Attorney General, where appropriate, may:
            (1)  Retain the property for official use.
            (2)  Sell any forfeited property which is not required to
        be destroyed by law and which is not harmful to the public,
        but the proceeds from any such sale shall be used to pay all
        proper expenses of the proceedings for forfeiture and sale,
        including expenses of seizure, maintenance of custody,
        advertising and court costs. The balance of the proceeds
        shall be dealt with in accordance with subsections (f) and
        (g).
        (f)  Use of cash or proceeds of property.–Cash or proceeds
     of forfeited property transferred to the custody of the district
     attorney pursuant to subsection (e) shall be placed in the
     operating fund of the county in which the district attorney is
     elected. The appropriate county authority shall immediately
     release from the operating fund, without restriction, a like
     amount for the use of the district attorney enforcing the
     provisions of The Controlled Substance, Drug, Device and
     Cosmetic Act. The entity having budgetary control shall not
     anticipate future forfeitures or proceeds therefrom in adoption
     and approval of the budget for the district attorney.
        (g)  Distribution of property among law enforcement
     authorities.–If both municipal and State law enforcement
     authorities were substantially involved in effecting the
     seizure, the court having jurisdiction over the forfeiture
     proceedings shall equitably distribute the property between the
     district attorney and the Attorney General.
        (h)  Authorization to utilize property.–The district
     attorney and the Attorney General shall utilize forfeited
     property or proceeds thereof for the purpose of enforcing the
     provisions of The Controlled Substance, Drug, Device and
     Cosmetic Act. In appropriate cases, the district attorney and
     the Attorney General may designate proceeds from forfeited
     property to be utilized by community-based drug and crime-
     fighting programs and for relocation and protection of witnesses
     in criminal cases.
        (i)  Annual audit of forfeited property.–It shall be the
     responsibility of every county in this Commonwealth to provide,
     through the controller, board of auditors or other appropriate
     auditor and the district attorney, an annual audit of all
     forfeited property and proceeds obtained under this section. The
     audit shall not be made public but shall be submitted to the
     Office of Attorney General. The county shall report all
     forfeited property and proceeds obtained under this section and
     the disposition thereof to the Attorney General by September 30
     of each year.
        (j)  Annual report; confidential information regarding
     property.–The Attorney General shall annually submit a report,
     to the Appropriations and Judiciary Committees of the Senate and
     to the Appropriations and Judiciary Committees of the House of
     Representatives, specifying the forfeited property or proceeds
     thereof obtained under this section. The report shall give an
     accounting of all proceeds derived from the sale of forfeited
     property and the use made of unsold forfeited property. The
     Attorney General shall adopt procedures and guidelines governing
     the release of information by the district attorney to protect
     the confidentiality of forfeited property or proceeds used in
     ongoing drug enforcement activities.
        (k)  Proceeds and appropriations.–The proceeds or future
     proceeds from forfeited property under this chapter shall be in
     addition to any appropriation made to the Office of Attorney
     General.

One study showed that Pennsylvania’s laws on seizure are some of the toughest in the nation; law enforcement agencies can confiscate real estate on a preponderance of evidence, or anything over 50 percent, instead of beyond a reasonable doubt. Property owners aren’t given the assumption of innocence but must prove they aren’t guilty.

With the tough drug laws and possible seizure of property in the state, someone accused of a drug crime should retain a criminal defense attorney as soon as possible. The attorney might be able to help clients recover their property.

Source: Huffington Post, “Philadelphia Family Loses Home Over A Single Drug Charge“, Radley Balko, September 10, 2013

Prosecutors taking the Law too far

When society is confronted with the latest social ills, state legislatures are quick to offer criminal remedies and sanctions to satisfy the public outcry. These laws are often rushed to meet the demands of constituents, and their ramifications are never thoroughly contemplated. Defense attorneys often warn of the “slippery slope” that each new, rushed, and vague law creates. Our arguments toward a “slippery slope” are often dismissed as unreasonable by the public and prosecutors.

Currently, two new areas of new crimes that were created to remedy societal issues are being prosecuted far beyond their intended purpose. We are now prosecuting teenagers with child pornography charges for taking explicit photos of themselves. As a result, normal teenagers in need of help and directions are being met with Felony convictions, life long destruction of their lives, potential megan’s law status, and a child molester stigma.

For example: http://www.vagazette.com/news/va-vg-16yearold-james-city-girl-charged-20140205,0,7353878.story

Child Pornography is a bane on society. Prosecutors are just in vigorously attacking those who create and distribute child pornography. These statues were intended to prosecute dangerous criminals, lurking and preying on innocents, who take advantage and manipulate children. They were not intended to prosecute over zealous teenagers making poor life choices. Unfortunately, the laws created are often so vague that total discretion lies within the reasonableness of the prosecutor as to when to apply them. Common sense and reasonableness often fade in the wake of publicity and political opportunity.

The second area where prosecutors are taking the law too far is the new Drug Delivery Resulting in Death crimes. These statutes were intended to prosecute drug dealers who distribute their product without consequence. The common thug on street corners peddling their wares. Often, prosecuting those criminals becomes difficult to establish chain of custody back to the original dealer. Instead, Prosecutors have set their sights on drug users who share drugs together.

For example: http://www.phillyburbs.com/00redesign/news/local/cops-women-charged-in-separate-heroin-related-deaths/article_0f7d1931-47de-5556-9427-8a38eede9531.html

In Pennsylvania, it is now a first degree felony (the same grading as child molesters, rapists, and attempted murderers) and a potential 40 years in prison for drug users to share drugs with each other, and one of the users dies as a result. Again, an unintended consequence under the law, never intended by the legislature, but vigorously pursued by prosecutors.

Legislatures provide the tools for prosecutors to attack societal problems. Often, these tools are rushed and never fully explored prior to their passage. It is the duty of the prosecutor to apply reasonableness and common sense in their use of these tools when deciding who to prosecute and why