Pennsylvania

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.

 

Pennsylvania Factors in Child Custody Cases

In 2011, the Pennsylvania Legislature amended the Child Custody Statutes to incorporate 15 factors that a court MUST consider and analyze before making a decision in a child custody dispute. Below is the Statute which lists each factor relevant by the Court. Parties in child custody litigation should have their actions guided by the factors listed below:

§ 5328. Factors to consider when awarding custody.

(a) Factors.–In ordering any form of custody, the court shall determine the best interest of the child by considering all relevant factors, giving weighted consideration to those factors which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.

(2) The present and past abuse committed by a party or member of the party’s household, whether there is a continued risk of harm to the child or an abused party and which party can better provide adequate physical safeguards and supervision of the child.

(2.1) The information set forth in section 5329.1(a) (relating to consideration of child abuse and involvement with protective services).

(3) The parental duties performed by each party on behalf of the child.

(4) The need for stability and continuity in the child’s education, family life and community life.

(5) The availability of extended family.

(6) The child’s sibling relationships.

(7) The well-reasoned preference of the child, based on the child’s maturity and judgment.

(8) The attempts of a parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary to protect the child from harm.

(9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child’s emotional needs.

(10) Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child.

(11) The proximity of the residences of the parties.

(12) Each party’s availability to care for the child or ability to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another. A party’s effort to protect a child from abuse by another party is not evidence of unwillingness or inability to cooperate with that party.

(14) The history of drug or alcohol abuse of a party or member of a party’s household.

(15) The mental and physical condition of a party or member of a party’s household.

(16) Any other relevant factor.

Contact our firm if you have any questions regarding Child Custody and the factors involved in custody disputes.

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

Pennsylvania moves to pass Revenge Porn law

The Pennsylvania Senate unanimously voted Tuesday to criminalize so-called “revenge porn.”

The bill would make it illegal for intimate or former intimate partners to post photos or videos identifying another person who is naked or engaged in a sexual act, without that person’s consent. The legislation, sponsored by Sen. Judy Schwank, a Berks County Democrat, would not cover photos posted with a person’s consent.

The bill would create a new crime. Intimate Partner Harassment would carry a penalty of up to 5 years in prison and a $10,000 fine in cases involving victims who are minors, and up to 2 years and $5,000 when the victim is an adult.

The proposal will now head to the House.

Here is the current bill:

Amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, in assault, providing for the offense of intimate partner harassment.
The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:

Section 1.   Title 18 of the Pennsylvania Consolidated
7Statutes is amended by adding a section to read:

§ 2709.2.   Intimate partner harassment.

(a)   Offense defined.–A person commits the crime of intimate
partner harassment by exposing a photograph, film, videotape or
similar recording of the identifiable image of an intimate
partner who is nude or explicitly engaged in a sexual act to the
view of a third party for no legitimate purpose and with the
intent to harass, annoy or alarm the person depicted.

(b)   Affirmative defense.–It shall not be an offense under
this section for a person to expose an image with the consent of
the person depicted.

 (c)   Grading.–An offense under this section shall be:

(1)   A misdemeanor of the first degree when the person depicted is a minor.

(2)   A misdemeanor of the <-third second degree when the person depicted is not a minor.

(d)   Applicability.–This section shall not apply to any

activity described in section 6321 (relating to transmission of
sexually explicit images by minor).

(e)   Definition.–As used in this section, the term

“nude” shall have the meaning provided under section 5903(b)
(relating to obscene and other sexual materials and
performances).

Section 2.   This act shall take effect in 60 days.

This bill raises serious concerns about the type of conduct that is and is not criminal. Is the showing of a picture to another covered by the statute? What qualifies as intent to harras, annoy, or alarm? Can the “victim” retroactively change their mind and seek prosecution? Can the “victim” revoke consent at a later time? Where and when is the crime committed? Suppose a photo is posted online by phone from out of state? Or the picture is taken out of state?

Pennsylvania House weighs expansion of designer drug ban

The Pennsylvania legislature is currently considering a bill that would expand the types of synthetic drugs that are prohibited. The state currently has laws that ban these substances, including bath salts, synthetic marijuana and any substance designed to imitate the effects of heroin, methamphetamine or cocaine. However, drug manufacturers are still able to change the formulation of the drug and produce a similar substance that is not contained within the list of illegal substances.

Supporters of the bill, known as House Bill 1217, believe that if it ultimately becomes law, it will be more difficult for synthetic drug manufacturers to get around the law by making minor chemical changes. This may make it easier for law enforcement to catch those creating and selling so-called designer drugs.

The bill was approved by a legislative committee in the House of Representatives on April 22. The full House will now consider the proposed law. If it passes the House, it must also be approved by the Senate before being forwarded to the governor for approval. It was not stated whether or not the governor supports the bill.

Act 7 of 2011 amended the Pennsylvania controlled substance act to make designer drugs a Schedule I controlled substance, which means the government believes the drugs have no accepted medical purpose and a high potential for abuse. Any person who has been charged with a crime related to the possession, sale or manufacture of designer drugs may benefit from speaking with a defense lawyer to discuss the situation. In some cases, a lawyer may be able to get a person into a drug diversion program to avoid some of the penalties of a conviction or possibly negotiate a plea bargain with the prosecution for a reduced sentence.

Source: WHTM, “Pa. bill would expand designer drug ban,” Myles Snyder, April 23, 2013

Source: General Assembly, “SB 1006,” June 23, 2011

The Problem of Mandatory Sentencing

Many states, including Pennsylvania, have begun to reform their sentencing laws in regards to mandatory sentencing. Mandatory sentencing, normally subjected to those convicted of drug charges, is a minimum sentence that is to be given to someone convicted of a specific crime. Since it’s introduction in the 1970s, the prison population in the U.S. has quadrupled. The U.S. currently incarcerates a higher percentage of its population than any other country, including Iran and China.

Many politicians believe that mandatory sentencing is causing more problems than it is solving. In addition to states changing their laws, this concern has pushed the federal government to consider legislation that would do the same. Recently, Attorney General Eric Holder directed prosecutors working on federal cases to not introduce evidence against people with a limited criminal history that could cause such sentences to be given.

Those in favor of reform want to completely do away with these sentences of non-violent crimes. They also want sentencing to be back in the hands of judges for minor drug crimes. Kentucky Sen. Rand Paul is co-sponsoring federal legislation to reform the practice for federal crimes because he thinks mandatory sentencing is costly and unfair.

These laws have filled prisons with non-violent criminals and haven’t stopped the sale or use of illegal drugs. This movement to end these mandatory minimum sentences may help many people avoid prison sentences that are a harsher punishment than the crime they were convicted of deserves. While Pennsylvania has taken steps to address the issue, those with drug charges still face the possibility of long prison sentences. An attorney may be able to assist those charged with drug crimes better understand what options they have to protect their future. An attorney could also negotiate for a plea deal with the prosecution that results in their client enrolling in a substance abuse program.

Source: The Week, “Rethinking mandatory sentencing“, Dan Stewart, September 14, 2013

Will Pennsylvania Leaglize Marijuana?

Although several states   have legalized the use and possession of marijuana under certain conditions,   pot is still illegal in Pennsylvania. This means folks in Bucks County and   throughout the entire state may still face serious legal consequences if they   are caught with marijuana.

Despite marijuana being   illegal throughout most of the U.S., there are still many Americans who use   marijuana. In Pennsylvania alone, more than 24,000 people were arrested in   2006 for marijuana-related crimes. The Office of National Drug Control Policy   claims that taxpayers paid about $325.36 million for these arrests and other   costs associated with the alleged drug crimes.

With thousands of people   being arrested and millions being spent on marijuana-related arrests each   year in the state, citizens and lawmakers have often considered whether it   would be better to just legalize marijuana and regulate the substance like   alcohol in order to avoid wasting taxpayers’ dollars and law enforcement   officers’ time and efforts. Although it may be awhile yet before Pennsylvania   even considers legalizing marijuana, one lawmaker has recently stated that he   plans to introduce a bill to legalize marijuana in the state.

Democrat State Sen.   Daylin Leach announced that he plans to introduce a bill that would legalize   the use of marijuana in Pennsylvania. The bill would only make it legal for   residents who are 21 or older to possess and smoke marijuana. The lawmaker   said that he believes legalizing marijuana will not only allow folks to   purchase safer forms of the substance, but it could also reduce wasteful   spending of taxpayers’ dollars.

If the bill is ever   passed, residents could still face criminal charges for marijuana-related   offenses. For example, folks could face criminal charges for driving under   the influence of marijuana or for selling marijuana to those who are under   the age of 21. It will certainly be interesting to see what comes of the   lawmaker’s plans to legalize marijuana in Pennsylvania. We will be sure to   revisit this topic on our blog when more developments occur.

Source: CBS Pittsburgh, “Pa. Senator Introduces Bill To Legalize Marijuana,”   Jan. 10, 2013