Tuesday, August 28, 2012

Back To School - Focus on Bus Safety

While the last days of summer fade away and a new school year begins, teachers across the state are either writing or implementing their first lesson plans.  Often these lessons plans include a review of subjects that students learned the previous year but may have forgotten.  As drivers sharing the roadway with the school busses that will transport these students, we too can use a refresher course on the traffic laws for sharing the road with school busses.  Section 3345(a) of the Pennsylvania Motor Vehicle Code, titled Meeting or Overtaking School Bus, explains these laws in detail.

Stopping for a School Bus
According to Section 3345(a) of the Pennsylvania Motor Vehicle Code, when either following or approaching a school bus from any direction, a motorist must stop at least 10 feet from a school bus which has its red lights flashing and stop arm extended.  The only exception to this rule is if the roadway is separated by a divider, such as a concrete divider or grass median.  With this exception is the expectation for the driver to remain alert for any students who may be entering or exiting the bus to cross over the divider.  There is some confusion as to whether or not a turning lane is considered a divider in this scenario.  The answer is no.  A good example of this type of roadway is College Avenue in State College, which is a four-lane road that also has a turning lane. Although there are more businesses than residences on certain portions of this road, it is well travelled by school busses.  A motorist travelling in any of these lanes must come to a complete stop when a nearby school bus has its red lights flashing and stop arm extended. 

Passing a School Bus
It is also very important to remember that at no point while a school bus is stopped with its red lights flashing and stop arm extended may a motorist pass a school bus.  Section 3345(a.1) of the Pennsylvania Motor Vehicle Code permits a school bus driver to file a written report of any violation of 3345(a) that he or she may observe.  Simply stated, just because a motorist does not see flashing police lights immediately after meeting or overtaking a school bus, does not mean that he or she will not be cited and penalized.

Consequences for Violating the Law
Whether a driver receives a citation immediately after an alleged violation or through the mail, he or she must enter a plea within ten days.  If a driver decides to enter a plea of guilty, the penalties for this violation include a $250 fine, five points on his or her driving record, and a 60-day license suspension.  If a driver decides that he or she would like to have a hearing on the matter, the driver must enter a not guilty plea and post $50.00 in collateral.  Shortly after doing so, the court will issue a summary trial notice.  For a situation in which a school bus driver filed a report, an attorney may be able to argue at the summary trial that the driver’s report was not credible and therefore the motorist must be found not guilty.  A good course of action for any motorist who receives a traffic citation is to speak with an experienced attorney to find out how the law applies in his or her situation.  The best course of action for all motorists is to familiarize themselves with the Motor Vehicle Code as it applies to school busses and the safety of our children.

Jason S. Dunkle has been a State College criminal defense lawyer since 2004.  His law office, JD Law, P.C., is located in downtown State College, within walking distance of the University Park Campus of Penn State University.  If you or someone you know has been charged with a DUI or other criminal offense, contact JD Law at (814) 954-1094 and schedule a FREE CONSULTATION

Sunday, August 26, 2012

Possible Change to Self-Defense Jurisprudence on Horizon?

The Pennsylvania Supreme Court recently considered an appeal that required them to review self-defense in Pennsylvania.  While the case was a straightforward application of the current self-defense law, some judges not-so subtly stated that they may be reconsider whether the defense or the prosecution should bear the burden of proving self-defense in an assault case.

Commonwealth v. Mouzon involved a man that went to a Philadelphia bar, approached two women, but, after the defendant's advances were rejected by the women, the defendant not only called the women inappropriate names, he followed them throughout the establishment and threatened to kill them.  At some point, a male came to the aid of the women and struck the defendant several times.  The defendant then pulled a loaded gun from his waistband causing the assailant to raise his hands and take a few steps backwards.  Despite the fact that the assailant had stopped his attack, the defendant shot the assailant in the face and a second gunshot struck an innocent bystander.  The assailant died a few days later.  The defendant was charged with homicide, and, at trial, the defense claimed that the defendant acted in self-defense.  

Review of Case
 The Pennsylvania Supreme Court ultimately stated that the defendant could not assert a self-defense argument in this case because he was the initial instigator.  The court noted that man's attack on the defendant was not an isolated incident but was instead the product of the defendant's actions in stalking and threatening the women.  The man was simply acting in a chivalrous manner to protect the women.  Since the defendant instigated the situation that led to the attack on him, the court held that he could not legally have acted in self-defense.

Self-Defense - Who Bears Burden of Proof
The current self-defense law does not require the defendant to prove that his acted in self-defense.  Instead, the defendant must present some evidence of self-defense, through the testimony of his own witnesses or even the prosecution witnesses, and the prosecution must then prove beyond a reasonable doubt that the defendant was not acting in self-defense.  The primary issue is that the prosecution bears the burden is disproving self-defense after it has become a viable defense issue.

Putting the burden upon the Commonwealth to disprove self-defense was the law in Pennsylvania until the mid-1970's.  Prior to the change, the defense was required to prove self-defense by a preponderance of the evidence, so the defense side was required to present the evidence to evidence that the defendant's actions were justified.

Is Court Looking to Change Self-Defense Law in Pennsylvania?
The court in Mouzon mentioned a few times that it was significant that the defendant did not testify to support his claim of self-defense to evidence that he was in fear of death or serious bodily injury when he shot the decedent.  The court noted how difficult it was for a court to consider whether or not the defendant was in fear of death or serious bodily injury when the defendant didn't testify.  In a footnote, the author of the opinion wrote:
"This author would note that this case illustrates the wisdom of the common law rule placing the burden upon the defendant to prove self-defense. Although the defense ultimately is subject to objective evaluation, the core is the defendant's “reasonable belief.” That is a matter known peculiarly to the defendant, and there is no logical reason such an actor-sensitive defense should be permitted to arise from counsel's speculative inferences from the testimony of others."
It is clear that the judge that wrote the majority opinion is basically inviting the prosecution to bring a challenge to how self-defense law is applied in Pennsylvania.  The opinion noted that the court could not consider changing the law in this case and shifting the burden of proof to the defendant because the issue had not been raised.  While the court could not consider changing the self-defense law in this case, the author of the opinion clearly invited the prosecution to bring such a challenge in the future.  One judge wrote a separate opinion that noted that the possible change in self-defense law was "clearly not before us, and such dicta does not necessarily reflect the views of the individual justices of this Court."  I expect that self-defense cases will soon be working their way through the appellate courts to give the Pennsylvania Supreme Court to opportunity to consider this issue within the next few years.

Jason S. Dunkle has been a State College criminal defense lawyer since 2004.  His law office, JD Law, P.C., is located in downtown State College, within walking distance of the University Park Campus of Penn State University.  If you or someone you know has been charged with a DUI or other criminal offense, contact JD Law at (814) 954-1094 and schedule a FREE CONSULTATION

Saturday, August 25, 2012

Prosecutor Loses Conviction Because of Outrageous Conduct

Right to an Impartial Jury
A person's right to a fair and impartial trial is protected by both the U.S. Constitution and the Pennsylvania Constitution.  Generally speaking, a criminal case is a battle between the prosecution and the defense, and the judge's role is to act as a referee to make sure that both sides play fair and in accordance with the rules.  The prosecutor's role in a trial is to prevent evidence that convinces a jury beyond a reasonable doubt that the defendant committed the alleged violation.  In some situations, the prosecutor does not play within the rules, despite repeated admonishments from the judge, and such behaviors, called prosecutorial misconduct, can result in the dismissal of charges.  

In Commonwealth v. Culver, the Superior Court recently considered a case in which the trial court found that the assistant district attorney had engaged in numerous instances of prosecutorial misconduct and that the misconduct had so tainted the trial that the defendant was entitled to a new trial.  In the case, the experienced criminal defense attorney raised timely objections to the prosecutor's behavior, and the judge even sustained the objections and admonished the prosecutor, but the prosecutor simply failed to listen.

Outrageous Behavior From the District Attorney
It was claimed that the assistant district attorney repeatedly invaded the personal space of the defense lawyer and the defendant while the prosecutor pointed his finger at them.  The appellate court characterized the actions as "menacing behavior."  
The assistant district attorney argued that he did not raise his voice, yell, or otherwise act inappropriately, and the prosecutor also claimed that the trial judge's description of the prosecutor's behavior was fabricated.  Amusingly, the Superior Court stated that the assistant district attorney's behavior at oral argument was "consistent with the account of his behavior at trial as described by the trial court," meaning that the prosecutor acted just as inappropriately before the appellate court as he had before the trial court.  The Superior Court also stated that his "volume and tone of his voice during oral argument were inappropriate for an appellate courtroom, as they would have been in any legal forum."  

The prosecutor also told the jury during his opening statement that he had spoken with an expert witness about a particular issue, but, during the trial, it came to light that the prosecutor had NOT in fact spoken with the witness as he had claimed.  In closing argument, the assistant district attorney again mischaracterized what he had done, which led to a defense objection that was sustained by the judge.  

The Superior Court also stated that the prosecutor had committed prosecutorial misconduct when he repeatedly told the jury that the defendant was a liar.  The assistant district attorney called the defendant “probably the most unreliable, unbelievable person that you are ever going to come across," and he insinuated that the defendant was a "compulsive or pathological liar."  The Court stated that "it was particularly egregious" to imply that the defendant was psychologically unable to be truthful. 

Importance of Having Experienced Defense Counsel
The assistant district attorney tried to claim that the Superior Court could not consider some of the instances of prosecutorial misconduct because the defense attorney did not object to every single instance.  Generally, if the defense attorney does not raise a timely objection to perceived errors, then the court will later hold that the issues were waived and thereby cannot be considered.  In this case, the Superior Court noted that the defense attorney had objected to many of the instances of misconduct, and the defense attorney had adequately preserved the issue.  The waiver doctrine shows why it is so important to have a defense attorney that is knowledgeable and experienced so that appropriate objections are raised to protect the rights of the client.  I have used hearsay objections in various Underage Drinking cases to keep such testimony from being admitted at a hearing and thereby protect the client.  I have also represented a client in a PCRA action in which the attorney had failed to adequately review the file and thereby failed to file a motion to dismiss charges when the prosecution's own evidence did not support some of the charges.  

Jason S. Dunkle has been a State College criminal defense lawyer since 2004.  His law office, JD Law, P.C., is located in downtown State College, within walking distance of the University Park Campus of Penn State University.  If you or someone you know has been charged with a DUI or other criminal offenese, contact JD Law at (814) 954-1094 and schedule a FREE CONSULTATION

Friday, August 24, 2012

Will District Attorneys Use the Sentencing Enhancement for DUI Offenders That Had a Juvenile in Car?

As discussed in a prior blog post, on July 9, 2012, an amendment to the DUI law became effective that increased both the grading and the penalties for a DUI charge if a “minor under 18 years of age was an occupant in the vehicle when the violation occurred.”  Basically, if a person charged with a DUI has a juvenile in the vehicle, then the district attorney has to make a decision whether or not to seek the increased penalties for the DUI offense.  People probably assume that a district attorney would always seek the maximum penalty possible in such a situation, but, as with almost any decision, there are benefits but also costs that must be considered. 

What Are the Costs?
The increased DUI penalties come with the cost of giving the DUI defendant the right to a jury trial.  Generally, most first and second offense DUI defendants do not have the right to have the case heard by a jury but instead are only entitled to a trial before a judge.  Most experienced DUI defense attorneys would prefer to have a trial by jury as opposed to a trial by judge.  A jury trial increases the amount of time and thereby increases the expense of prosecution of a DUI case for the district attorney.  One could respond that the possibility of a jury trial is not much of a cost since the majority of criminal cases do not make it to a trial as they are resolved via a plea agreement between the prosecution and the defense.  However, when the district attorney seeks increased penalties, a defendant is more likely to proceed to a trial to avoid those penalties, and the DUI defendant would prefer to “roll the dice” at a trial before a jury.  The jury trial issue would not have an impact on second offense DUI defendants charged with having the highest rate of alcohol or three time DUI offenders as those persons are already entitled to a jury trial. 

What Are the Benefits?
Simply stated, the amendment to the DUI law gives the district attorney more power to control a sentence that is imposed on a DUI defendant.  The problem with the amendment is that the power given to the district attorney is relatively minor as the amendment does not impose sentences that are much greater than the mandatory minimum sentences already required for DUI offenses.  For example, if the enhancement is imposed on a first offense of DUI, the mandatory fine is $1,000.00 and completion of 100 hours of community service is required.  A first offense DUI in the third or highest range of penalties already requires a mandatory minimum fine of $1,000.00.  If the juvenile passenger enhancement is imposed on a second offense, the mandatory sentence includes a $2,500.00 fine and not less than 1 month nor more than 6 months incarceration.  Without seeking the sentencing enhancement, a two-time DUI offender in the middle range of penalties already faces a mandatory minimum of 1 month incarceration, and a two- time DUI offender in the highest range of penalties faces a 3 month minimum period of incarceration.  In some situations, the penalties imposed after invoking the juvenile passenger enhancement would result in increased mandatory penalties, but, in many other situations, the penalties are the same and sometimes even less than the mandatory minimum penalties already imposed.  Therefore, the district attorney would only receive a benefit when invoking the enhancement in certain DUI cases.

Will It Be Used?
I believe that the DUI sentencing enhancement for having a minor passenger in the vehicle was created more by Pennsylvania politicians to appease constituents than actually punish violators of the law and deter such conduct.  As discussed above, the amendment does not substantially increase the penalties for DUI offenses.  Also, district attorneys routinely already use other charges, such as Endangering the Welfare of a Child or Reckless Endangerment, in DUI cases in a minor was an occupant.  Therefore, the current DUI enhancement was not needed to give the district attorney another way to punish DUI offenders.  The district attorney will have to consider the costs and benefits associated with invoking the DUI sentencing enhancement.  Generally speaking, an experienced DUI defense attorney would much rather proceed to a jury trial rather than a bench trial.

Jason S. Dunkle has been a State College criminal defense lawyer since 2004.  His law office, JD Law, P.C., is located in downtown State College, within walking distance of the University Park Campus of Penn State University.  If you or someone you know has been charged with a DUI or other criminal offenese, contact JD Law at (814) 954-1094 and schedule a FREE CONSULTATION

Saturday, August 18, 2012

Increased DUI Sentences If Juvenile In Car

On July 9, 2012, amendments to the DUI law in Pennsylvania became effective that increased the sentences for people convicted of DUI and had a passenger in the vehicle under the age of 18.  Under the revised section 3803 of the Vehicle Code, the grading of a DUI charge in which a juvenile was a passenger is a misdemeanor of the first degree, which is the most severe misdemeanor charge and is punishable by up to 5 years incarceration and a $10,000.00 fine.  Without the amendment, most first and second offense DUIs are ungraded misdemeanors and punishable by a sentence of up to 6 months of incarceration and a $5,000.00 fine.  The amendment to the DUI law increases the mandatory minimum fine and imposes a hefty community service requirement for first offenses, and the amendment imposes mandatory minimum fines and periods of incarceration for second and subsequent offenses.  The amendment did not change the DUI law discussing ARD eligibility.  ARD is a first time offender program that may allow a person to avoid a conviction and have the DUI charges dismissed and expunged upon completion of the program.  A person is not eligible for ARD is a passenger in the vehicle is under 14 years old.  

Impact of Change to Grading of DUI Charge

Right to a Jury Trial for First Offenses and Second Offenses
Almost everyone is aware that both the U.S. and Pennsylvania Constitutions provide citizens with a right to a trial by a jury of one’s peers.  What most people do not realize is that courts have interpreted the constitutions to provide the right to a jury trial only if the criminal charge carries a possible sentence of more than 6 months incarceration.  Given the 6 month cutoff, most first and second offenses of DUI in Pennsylvania are only eligible for a trial before a judge and not a jury. Generally speaking, a criminal defense lawyer would much rather present a case to a jury rather than a judge.  Now, if the district attorney elects to seek the sentencing enhancement for a DUI case in which a passenger was a minor, the district attorney is now giving the defense something that they may want, the right to a trial by jury.  Jury trials take more time and add additional expense to the prosecution of a case.  With a jury trial, a jury panel must be selected through a process called voir dire.  The jury selection process is additional time and additional work for the district attorney.  Also, at a jury trial for the DUI charge, the judge must spend time reading relatively lengthy instructions to the jurors, and both the criminal defense lawyer and the district attorney spend time prior to trial preparing proposed jury instructions for submission to the trial judge.  In deciding whether to seek the enhanced penalties, the district attorney will need to consider the fact that the decision now gives the DUI defendant the right to a jury trial, and trials tax the time and economic resources of the district attorney’s office.

Additional Evidence Required to Obtain DUI Sentencing Enhancement
The amendment to the DUI law increases the grading of the DUI charge based upon the fact that a juvenile was in the vehicle.  Under Federal case law, a fact or element that increases the maximum sentence permitted by law must be presented to the trier of fact and proven to a jury beyond a reasonable doubt.  Because the juvenile passenger enhancement increases the maximum sentence, then the district attorney must present evidence at trial and convince a jury that the fact was proven beyond a reasonable doubt in order to obtain the enhancement.  Some sentencing enhancements are decided by a judge at the time of sentencing, but such enhancements generally only increase the minimum and not the maximum sentence.  While a district attorney should be able to present evidence regarding the age of the passenger relatively easily, it is a little more work for the district attorney.

Will the District Attorney Utilize the Enhancement?           

The sentencing enhancement for DUI offenders that have a passenger less than 18 years of age in the vehicle is a good public relations move as the legislature can tell people that they are punishing people more severely for endangering a juvenile.  However, a more important question is whether or not district attorneys will actually use the enhancement.  In the next blog, I will review the factors that the district attorney will consider in determining whether or not to seek the enhancement for appropriate DUI charges

Attorney Jason S. Dunkle has been a criminal defense lawyer in State College since 2004.  His law office, JD Law, P.C., is located in downtown State College, within walking distance of the University Park Campus of Penn State University.  If you or someone you know has been charged with a DUI or other criminal offenese, contact JD Law at (814) 954-1094 and schedule a FREE CONSULTATION.

Tuesday, August 7, 2012