Pennsylvania House passes Teen “Sexting” Bill

Under current Pennsylvania law, minors who are caught sending explicit photographs of another minor (including themselves) via telephone to each other are guilty of a felony pursuant to Sec. 6312 of Title 18. A minor found guilty of the current form of Sec. 6312 would be required to register as a sex offender.

In order to address this unfortunate loophole in the law, the Pennsylvania legislature has proposed an amendment to Title 18 creating an exception for minors in violation of the crime. In addition to this exception, however, the Commonwealth establishes a new crime, Sec. 6321, for minors who send sexually explicit images to other minors, also known as “sexting,” or sending sexually explicit images via text messages. A violation of this new provision is a much lesser penalty – either a second degree misdemeanor or a summary offense.

This amendment to the crimes code passed the Pennsylvania House of Representatives and is currently awaiting the decision of the Senate. Although it addresses an important issue in current law, it creates an entirely new dilemma: Should the Pennsylvania government make “sexting” between minors a crime? Does such a decision violate their Constitutional right to freedom of expression?”

Pennsylvania seeks criminal penalties for Employment Law violations

This month, Pennsylvania joined only a handful of states in pursuing criminal penalties for the misclassification of an employee as an independent contractor.

On October 13^th, Governor Rendell signed the Pennsylvania Construction Workplace Misclassification Act (“PCWMA”). The PCWMA will go into effect 120 days after the date of signing. Essentially, the law is designed to curtail employers from intentionally and negligently classifying employees as “independent contractors” in order to pay less in terms of worker’s compensation, unemployment, and related taxes.

Although employment disputes are generally handled civilly, the PCWMA makes the intentional misclassification of an employee a third degree misdemeanor for the first offense and second degree misdemeanor for a subsequent offense. The negligent misclassification of an employee is a summary offense. Additionally, the Pennsylvania law contains an “acting in concert” provision, meaning that any party who knowingly hires a contractor that is in violation of the act is also criminally liable. At the present time, a single violation of the new Act will result in a penalty of $1,000 to $2,500. In addition to these fines, the state may impose a stop-work order, barring the misclassified employee from providing services for the employer. Any violations of the stop-work order would also result in a $1,000 fine per day.

Although this Act only involves the field of Construction, the legislature has espoused an intent to target the trucking industry next.

Driving Drunk Can Now Result in Life in Prison

Murder Charges Increasing in Fatal DUI Case

From the Associated Press. Drunk driving has always been regarded as a selfish act and fatal DUI crashes are one of the tragic incidents in our society. However, driving under the influence is no longer merely a stupid move; it can now land you in prison for life.

If some one is killed due to a drunk driver, the death is normally classified as manslaughter, which implies that there was no prior intention to kill. It is less punishable than murder, in which there must be some degree of malice toward another individual.

As long ago as 1981, the state Supreme Court of California ruled that fatal drunk driving crashes can be tried as murder. A law in Orange County, California ensures that it will be. The law states that anyone issued a DUI must sign the ‘Watson Advisement,’ warning them that if they ever kill someone while driving under the influence in the future, the death will not be unintentional manslaughter, but rather second-degree murder. Because the individual has been warned, getting in a car drunk again implies malicious intentions.

This law has come into affect more frequently than one might imagine. Most recently, Andrew Gallo was charged with three counts of second-degree murder when he got into a drunk driving crash and killed rookie Los Angeles Angels pitcher Nick Adenhart and two friends. A few decades ago, this incident would have been seen as a tragedy, but today it has landed Gallo in prison for the next 50 years to life.

While California has had the most cases resulting in murder charges, the entire country is following a similar trend, including similar convictions in New York, Missouri, Alaska, and dozens of other states. Today drunk driving is no longer just stupid, it is a malicious crime.

Probation Violations: The Lohan Saga Continues

In our July 20, 2010 blog, we mentioned the Lindsay Lohan’s legal troubles. Following several violations of the terms of her parole, she was sentenced to time in jail. Following a harrowing thirteen whole days behind bars and three weeks of rehab, Lohan tested positive for not only one but two separate drug tests. Due to this additional violation of her probation, she will be resentenced before the California courts to more than likely return to jail and rehab.

Probation is a discretionary exercise where a person who has violated the law is allowed either a reduction to or complete avoidance of jail time and released into the public under the supervision of a probation officer.

When you are adjudicated guilty of a crime and placed on probation, it is within the purview of the Court and your probation officer to subject you to random, mandatory drug tests. Testing positive for a drug or alcohol test opens the door for a judge to assign additional penalties and limitations for ones probation.  Because probation is a discretionary exercise by the court, it can be revoked, leaving the court to re-evaluate punishment for the violation including jail time. However, a revocation of probation should only occur upon proof of continued violations, and the court must take into account the length of probation and time previously served.

Criminal Law News Roundup

Here’s a quick recap of some recent criminal law-related stories in the Pittsburgh local media.  As always, it’s important to remember that the accused are innocent until proven guilty and have a constitutionally-protected right to an attorney.

South Huntingdon man arrested in body-in-barrel case

From the Pittsburgh Tribune-Review.  In late August, state police officers discovered a barrel containing human remains in a creek outside Blairsville. Despite the oddities of the situation, the police did compile a list of suspects, including Jon Anthony Black, 32. Just a few weeks prior to the discover, a judge had ordered Black to live with his mother, about a mile from where the barrel was found, due to criminal charges involving drugs and assault. Since the discovery of the barrel, he has been impossible to locate.

This past weekend, Black surrendered to police in West Virginia. He is currently at a Regional Jail in West Virginia and proceedings are in order to return him to Indiana County to face criminal homicide charges.

Black is innocent until proven guilty, despite the fact that he turned himself in. Currently, the judge has sealed the details of Black’s involvement because of the “sensitive nature” of the case. He will see a fair trial. Despite a criminal past, no one is convicted before trial and investigation. In this case, it seems that a great deal of yet unidentified extraneous situations will need to be considered.

Officer injured in foiled North Side Robbery

From the Pittsburgh Post-Gazette.  Good guys, bad guys, busting a drug deal, thrilling shootouts as the criminals desperately try to get out of the reaches of the cops- it all sounds so exhilarating in the movies, but last week our local Pittsburgh police officers found themselves in just such a dangerous position.

On Wednesday morning five heavily armed men entered the Swap Meet, an indoor flea market in the North Side. By the time the police responded to the robbery report, the men were fleeing the building. 28-year-old Officer Colleen Bristow ordered one of the men to step out of van in which he was trying to escape, but he responded by reversing the vehicle and brutally hitting Bristow. Back-up officers did catch the driver after firing to break the windows of the van. They also caught one of the fleeing men with the help of a police dog and a second criminal who was hiding in a nearby dumpster. The search for the last two men continued for hours, but to no avail. There are reports that one man hijacked a car at gunpoint in his escape.

After all the excitement, the police were puzzled: why were five armed men robbing a flea market in daylight? Although awaiting a search warrant to confirm, officers speculate that the Swap Meet was hosting a drug-packaging operations and harboring large amounts of marijuana.

Officer Bristow was hospitalized and is quickly recovering while the search for the missing two men continues. Such activities are not normally on the agenda of the Pittsburgh police force, but when necessary our local officers show incredible bravery.

Lindsay Lohan: a cautionary tale of Probation Violations

No one is above the law. Just ask Lindsay Lohan. In 2007, Lohan ran into legal trouble when she was charged with driving under the influence and possession of a controlled substance.  Following her guilty plea, she was charged with three years of probation in addition to alcohol education classes.  Rather than attend the alcohol education classes, as required by her plea agreement, Lohan missed several and was late for others. As such, in October 2008, the Judge added an additional year onto her probation time. After missing a required Probation hearing and continuing to miss alcohol education classes, Judge Revel sentenced Lohan to 90 days in prison despite her youth and celebrity.

Although she arrived to Lynwood Correctional Facility this morning in style, it is likely she won’t need her designer jeans or platinum blonde hair extensions in prison. Anyone can make mistakes – even millionaire film stars.

When someone is found guilty of a DUI, they don’t always serve time in prison. In Pennsylvania, first time offenders are eligible for the ARD (Accelerated Rehabilitative Disposition) program. The ARD program basically permits a defendant to attend rehabilitation classes and report for supervision rather than go to prison. Depending upon a judge’s determination, probation may be awarded in lieu of jail time for additional DUI or other charges. Although parole violations do not guarantee jail time, it is important to consult with a criminal defense attorney.

An Overview of Penalties for DUI in PA

The penalty for driving under the influence, or DUI, is determined by your blood-alcohol content (BAC) and the number and nature of any prior convictions you may have had. There are special situations that exist for minors (those under 21), commercial drivers, school vehicle or bus drivers, drivers involved in an accident that injures someone or causes property damage, or drivers who refuse breath or chemical testing may be subject to higher penalties.

The information provided on this page was adopted from the Pennsylvania Driver’s Manual, and information provided by the PennDOT Driver and Vehicle Services and should not be construed as legal advice.

General Impairment Penalties:(for an undetermined BAC, or .08 to .099 BAC)

With no prior DUI offenses, penalties may include:
- Classified as an ungraded misdeameanor
- Up to 6 months probation
- $300 fine
- Alcohol highway safety school
- Treatment

With one prior DUI offense, penalties may include:
- Ungraded misdemeanor
- 12 month license suspension
- 5 days to 6 months of jail time
- $300 to $2,500 fine
- Alcohol highway safety school
- Treatment
- 1 year of ignition interlock device at driver’s expense

With two or more prior DUI offenses, penalties may include:
- 2nd degree misdemeanor
- 12 month license suspension
- 10 days to 2 years in prison
- $500 to $5,000 fine
- Treatment
- 1 year ignition interlock

High BAC Penalties: (.10 to .159 BAC)

With no prior DUI offenses, penalties may include:
- Classified as an ungraded misdeameanor
- 12 month license suspension
- 48 hours to 6 months prison
- $500 to $5,000 fine
- Alcohol highway safety school
- Treatment

With one prior DUI offense, penalties may include:
- Ungraded misdemeanor
- 12 month license suspension
- 30 days to 6 months of jail time
- $750 to $5,000 fine
- Alcohol highway safety school
- Treatment
- 1 year of ignition interlock device at driver’s expense

With two or more prior DUI offenses, penalties may include:
- 1st degree misdemeanor
- 18 month license suspension
- 90 days to 5 years in prison
- $1,500 to $10,000 fine
- Treatment
- 1 year ignition interlock

With three or more prior DUI offenses, penalties may include:
- 1st degree misdemeanor
- 18 month license suspension
- 1 to 5 years in prison
- $1,500 to $10,000 fine
- Treatment
- 1 year ignition interlock

Highest BAC Penalties: (.16 and higher BAC or controlled substance)

With no prior DUI offenses, penalties may include:
- Classified as an ungraded misdeameanor
- 12 month license suspension
- 72 hours to 6 months prison
- $1,000 to $5,000 fine
- Alcohol highway safety school
- Treatment

With one prior DUI offense, penalties may include:
- 1st degree misdemeanor
- 18 month license suspension
- 90 days to 5 years of jail time
- $1,500 to $10,000 fine
- Alcohol highway safety school
- Treatment
- 1 year of ignition interlock device at driver’s expense

With two or more prior DUI offenses, penalties may include:
- 1st degree misdemeanor
- 18 month license suspension
- 1 to 5 years in prison
- $2,500 to $10,000 fine
- Treatment
- 1 year ignition interlock

For more information, check out PGHDUIDefense.com

The Basics of the ARD Process in Pennsylvania DUI Law

Many people who are charged with Driving Under the Influence (DUI) in Pennsylvania have questions about the ARD program.  The purpose of this post is lay out some of the basics of the ARD process.

What is ARD?

ARD stands for Accelerated Rehabilitative Disposition and is a unique facet of Pennsylvania DUI law.  The ARD program started in the 1980s with the idea being that first-time offenders, under certain circumstances, should not face jail time for a DUI offense.

Should I accept ARD if I am eligible?
Though there are certain advantages to the ARD program, the decision to apply is a personal one, and depends on your personal circumstances and the circumstances surrounding your DUI charges. You should always talk to an attorney to make sure that you understand the charges against you and your options before making any decisions involving DUI charges.

Who is not eligible for ARD?
ARD is not guaranteed in any circumstance, you must be accepted into the program. You are not eligible if any of the following apply:

• You have been convicted of DUI or accepted into an ARD program in the last 10 years, even if your record has been expunged.
• You had an accident in connection with your DUI charge that caused serious bodily injury or death
• You had a passenger under the age of 14 at the time of your offense
• You were not licensed, driving with a suspended license, or failed to maintain the required levels of insurance on your vehicle
• You have an extensive driving record, as determined by the District Attorney

The Basics of Driving Under the Influence (DUI) Law in Pennsylvania (PA)

All drivers who take the road in Pennsylvania should be aware of and abide by the state’s DUI laws.  The purpose of this post is to lay out some of the basics of DUI laws in PA.

The information provided below has been adopted from the Pennsylvania Driver’s Manual, and information provided by the Pennsylvania Department of Transportation Driver and Vehicle Services and should not be construed as legal advice.  If you need a DUI attorney feel free to give us a call (412) 434-4911 ext 25.  Our consultations are always free.

On September 30, 2003, Pennsylvania adopted a new Driving Under the Influence (DUI) law which lowered the legal blood alcohol limit from .10 to .08, and created a tiered system for charges and penalties relating to DUIs. Under this new system, licensing requirements and penalties are based on a combination of your blood alcohol level at the time of the arrest, and the number and nature of any prior convictions you may have. The new law focuses on treatment for first-time DUI offenders, rather than punishment and suspension.

The new system creates three levels of DUI. If you have a blood alcohol content (BAC) level of .08 or higher, you can be charged with DUI “per se”, a latin phrase that means “by itself.” This means that if there is evidence that you drove, operated, or were in control of a vehicle and you had a BAC of .08 or higher, then you can be convicted of a DUI without any other evidence. Even if you have a BAC of less than .08, you can still be convicted of a DUI if there is evidence that you were incapable of driving safely or otherwise operating a motor vehicle.

The three levels of DUI are:

1. General Impairment (.08 to .099 BAC)
2. High BAC (.10 to .159 BAC)
3. Highest BAC (.16 and higher BAC)

For people under the age of 21, Pennsylvania has a “zero tolerance” policy for DUI. This means that you can be charged with DUI if your BAC is .02 or higher, and you will be subject to the penalties for the “High Rate” BAC level, even if your actual level was less than the level specified for those penalties for people 21 or older.

You can also be charged with a DUI even if you refuse to consent to testing for alcohol or drugs. Pennsylvania has an Implied Consent law, which means that you have already consented to take a test for alcohol or drugs just by being licensed to drive in Pennsylvania. If you are arrested for DUI and you refuse to take one or more chemical tests of breath, blood or urine, your license will automatically be suspended for at least one year in addition to any other sentence. Even if you are later found not guilty of DUI, you will still receive a one year suspension, and if you are later found guilty of DUI, your license may be suspended for up to two and a half years depending on your BAC at time of arrest. If you refuse testing and have a prior DUI or refusal to test, you may receive an 18 month suspension for the refusal and an 18 month suspension for the DUI, for a total suspension of three years.

How to Expunge a Criminal Record in Pennsylvania

It’s a fact of life that everyone makes mistakes.  Some mistakes are bigger than others, and some even result in a criminal record.  A criminal record can manifest itself in negative ways– in many cases years after the criminal offense took place.

In Pennsylvania, however, there are ways for individuals with criminal records to obtain, under limited circumstances, an “expungement” of their criminal record.  So how do you know whether your criminal record can be expunged?

As a general rule, charges that resulted in a conviction cannot be expunged.  Charges that were withdrawn, dismissed, or disposed of through ARD, however, can generally be expunged in most instances.

For more information on the expungement process in Allegheny County and Beaver County Pennsylvania, please check out our website.  Our consultations are always free.

Here’s a bit more information on how the process works in Pittsburgh, PA and throughout Allegheny County.  The following is taken from the Allegheny County Department of Court Records, Criminal Division:

What is an Expungement?

According to Pennsylvania Law, 18 Pa.C.S. § 9122, under limited circumstances individuals may obtain permission to remove criminal records from the files of the Department of Court Records, Criminal Division, and other criminal justice agencies.

Why Should a Record Be Expunged?

There are many reasons why a person may want to expunge criminal records.  For example, a background check such as an Act 33/34 clearance will produce details of criminal cases that might affect future employment opportunities, the ability to be bonded or to obtain a gun permit. All criminal cases remain a matter of public record until a motion for expungement has been filed in the Department of Court Records, Criminal Division, and is granted by an order of court from the Court of Common Pleas of Allegheny County.

What Records are Expungeable?

Prior to Act 134 of 2008, only non-convictions could be expunged, regardless of severity of the offense or the punishment. Non-convictions include verdict of not guilty; dismissal; withdrawal of charges, or nolle prosequi; Accelerated Rehabilitative Disposition; or Probation Without Verdict pursuant to the Controlled Substances Act.

The Accelerated Rehabilitative Disposition (ARD), Probation Without Verdict and Allegheny Service Institute (ASI) programs offer expungement as part of the plea bargain package. For ARD and Probation Without Verdict (PWV), an expungement for a first time offender is filed automatically by the Allegheny County Department of Adult Probation when all fines and costs have been paid and the defendant successfully completes all of the terms and conditions of the program. For ASI, the individual who completes the program must file a motion with the Department of Court Records, Criminal Division and pay the filing fee.  NOTE:  A Motion to Expunge was not filed automatically by the Department of Adult Probation for ARD participants prior to 1990.  Therefore, a defendant who completed ARD prior to 1990 must file a motion to expunge.

The passage of Act 134 now allows for the expungement of a conviction for a Summary offense provided the defendant has been free of arrest or prosecution for five (5) years following the conviction for that offense.  Prior to submitting your petition for expungement for a Summary offense, the following documents must be obtained:

1. A current certified record indicating that the petitioner has not had any arrests, charges or convictions for a minimum of five (5) years since the conviction of the Summary offense for which the expungement is requested.  This record check is performed by the Pennsylvania State Police.  For further information on obtaining this information, please reference their website: How to Obtain a Criminal History Record
2. A certified record indicating that the petitioner has fully paid all fines, costs and restitution for all convictions of record.

For any criminal charge other than a Summary offense that resulted in a conviction, such as a guilty plea, verdict of guilty, or a plea of nolo contendere, an expungement may only be granted by the court if the defendant first receives a pardon from the Governor of Pennsylvania.

For more information about expungements, please call the attorneys at Elliott & Davis: (412) 434-4911 ext 25.