Sunday, September 9, 2012

Penn State Marijuana Possession 101 - Where Not to Smoke on Campus

Dorm Room
            I have been a criminal defense lawyer in State College since 2004, and I have handled hundreds of marijuana possession cases that are filed by the police against Penn State students.  Incoming freshman tend to be cited after getting caught in three areas.  First, many freshman smoke
marijuana in their dorm rooms, and they believe that keeping the window open and smoking next to a fan that blows the smoke out the window will be sufficient to keep the odor from remaining in their room.  Others exhale the marijuana smoke through papertowel rolls stuffed with dryer sheets in an attempt to mask the smell, and many try to wedge a towel at the base of the door to prevent the marijuana odor from emanating into the hallway.  Obviously, if the person is calling me, the steps taken to avoid detection were not successful. 

Law Building & Arboretum
            In the recent past, many freshmen would be charged with marijuana possession case after they were cited in the Rose Gardens on campus.  In one of my prior cases, the Penn State Police approached a client and three others as they stood under a tree in the Rose Garden, and the police officer ordered them to step into the open.  My client ran, which caused the police to give chase and call for backup office, and my client was ultimately tackled, arrested, searched, and charged with marijuana possession.  The officers had not smelled marijuana as they approached, but they suspected that marijuana was being smoked based upon the location.  I filed a motion and argued that the police did not have probable cause to arrest my client, so all evidence should be suppressed.  I believe that the district attorney knew that I should probably win, so the district attorney issued a plea offer that required my client to plead guilty to two summary charges in exchange for the dismissal of the misdemeanor drug possession and paraphernalia charges. 

I believe that the Rose Gardens were replaced with the construction of the Dickinson Law School Building and the Arboretum.  While the Rose Gardens may have disappeared, the area still draws many marijuana smokers, and the smokers are routinely cited at the law building and the Arboretum.  Since the police are familiar with the apparent draw of marijuana smokers to this area, the Penn State Police routinely patrol these areas for marijuana related activity.

Parking Decks
            The Penn State Police also patrol the parking decks near East Halls looking for marijuana smokers that incorrectly assumed that the parking deck would be a good out-of-the-way spot.  Not only do the police patrol the parking decks, they also use the elevantion from the upper decks to serve as surveillance stations.  From the upper levels of the parking decks, the police have an 
unobstructed view of entrances to some of the dorms.  The police know that people smoking cigarettes will smoke right outside the dorm entrance, whereas people smoking marijuana cigarettes will walk around the side of the dorm and smoke near some trees or other out-of-the-way location.  If an officer sees someone walk away from the entrance and light something, the officer conducting surveillance will then either leave the garage to investigate or radio another Penn State Police officer to investigate.  In many cases, the officers approach, smell the odor of marijuana, and then detain the person to conduct a marijuana possession investigation.  Courts have held that the odor of marijuana can be sufficient to establish probable cause.

What Should I Do If I Am Charged With Marijuana Possession
            While marijuana possession is legal in some states, it is NOT legal in Pennsylvania.  In Pennsylvania, a charge of possessing less than 30 grams of marijuana is a misdemeanor offense that is punishable by up to 30 days in jail, $500.00 fine, and at least a 6 month suspension of Pennsylvania driving privileges. 

If you are charged with marijuana possession, you should contact a criminal defense attorney that has experience in handling drug cases in the county in which the charge was filed.  While the laws in Pennsylvania are the same in every county, the way that cases are handled differs from county to county as you have different court systems and different district attorneys making decisions.  For example, in areas such as Pittsburgh of Philadelphia, misdemeanor marijuana possession charges may be resolved by a guilty plea to a summary charge of disorderly conduct.  However, in more rural areas that have less crime, such as State College and Lock Haven, the prosecutors rarely resolve misdemeanor drug charges via a plea to a summary offense.  Most State College criminal defense attorneys offer free consultations, so you can have multiple attorneys review your case and give you feedback at no cost.  You should investigate the attorney on the web and review websites such as Avvo for the lawyer’s overall ratings as well as positive reviews written by former clients.  The attorney should be able to explain your options to you and should also be able to discuss cases in which the attorneys has employed strategies to obtain favorable results for clients.  The police and court system treat the marijuana possession charges very seriously, and so should you.

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, September 8, 2012

Is a Daycare Facility a "School" to Trigger "Drug Free School" Mandatory Minimum Sentence

“Drug Free School Zone” 
Mandatory Minimum Sentence
          In Pennsylvania, if a person is convicted of a violating section 780-113(a)(30) of the Drug Act, which generally prohibits the delivery, possession with intent to deliver, or the manufacture of drugs, and if the delivery of drugs occurs within 1,000 feet of the real property of any “school”, then the person is subject a two year mandatory minimum sentence.  This mandatory 
minimum sentence is commonly referred to as the “drug free school zone” law.  Many people believe that the “drug free school zone” law is intended to prevent drug dealing to children, but there is actually another mandatory minimum sentence law that punishes drug deliveries to people under 18.  The intent behind the “drug free school zone” is that drug dealing is often associated with guns and violence, and the legislature is seeking to punish people more severely that bring the dangerous activity in the vicinity of schools.  While the law was passed with good intentions, the Pennsylvania Sentencing Commission, based at Penn State University, actually recommended to the legislature that the law should be repealed.

Is a Daycare Facility a “School”
          A recent case required the Superior Court of Pennsylvania to determine whether a daycare facility should be considered a preschool and thus trigger the “drug free school zone” mandatory minimum sentence.  In the case, the prosecution argued that since the daycare facility was licensed by the Department of Health and engaged in some educational activities on a daily basis, it was in fact a preschool.  The Court held that it was a daycare facility and not a preschool because the facility did not employ any state licensed teachers and did not consider itself to be a preschool.  The facility called itself a daycare.

While the Court held that the daycare was not a preschool, it still had to consider whether a daycare facility should be considered a “school” for purposes of the “drug free school zone” statute.  The prosecution argued that since the laws intent is to protect children from the danger of drug activity, the legislature intended the phrase “school” to include a daycare facility.  As the “drug free school zone” statute is a criminal law, the Court noted that it is required to strictly construe the words in the law and cannot give them extra meanings or definitions.  The Court stated that other Pennsylvania law referenced both schools and daycare facilities.  If the legislature had intended to include daycare facilities under the school zone mandatory minimum sentencing scheme, then it needed to include such language in the law.  As the “drug free school zone” only references “school” and not a daycare facility, the court stated that a daycare facility would not trigger application of the “drug free school zone” law.

Impact on State College Drug Delivery Cases
          This case will probably have a minimal impact on how drug cases are handled in Centre County.  The “drug free school zone” mandatory minimum sentence law will continue to have a huge impact on downtown State College drug delivery cases.  The word “school” includes both private and public 
elementary, high school, colleges, and universities.  Much of downtown State College falls within a “drug free school zone” based upon the presence of Penn State University, the State College School District, and the downtown State College area has a plethora of churches that have preschool programs.  This case may cause drug defense attorneys to more closely scrutinize a preschool facility and try to argue that the facility is in fact a daycare and not a “school.”  Regretfully, if the defense attorney’s argument is rejected the judge, the client is the ultimate loser as the client is sentenced to a mandatory minimum sentence of two years incarceration, often for giving a small amount of marijuana to a friend.

Monday, September 3, 2012

How to Get Caught Underage Drinking at a Penn State Football Game

 I wrote this article a few years ago, but it is just as applicable today, and I felt that I should give it a few updates and re-post with Penn State's first home football game being this weekend.  The football tailgate and pre-gaming will involve plenty of alcohol being consumed, and much of that consumption will be by minors.  That means that Penn State students and other football fans will be facing Underage Drinking summary citations and misdemeanor Furnishing Alcohol to Minors charges.  I have been defense lawyer in State College since 2004, so I have represented thousands of Penn State students charged with criminal offenses and thereby know why many people get in trouble at tailgates at Beaver Stadium.  Below is a list of typical ways in which Penn State students and visitors have been caught over the years.
Public Urination– many Penn State tailgaters tire of the long lines at the porta-potties and go looking for trees, cars…..My personal favorite was someone that urinated next to a police car in which a uniformed officer was sitting
Push Over a Porta-Potty – either people were angry at waiting in line or simply thought that it was a good idea
Use “beer muscles” – pick a fight with a friend, another spectator, or the ticket attendant at the game that recommends that you head home before the police are summoned because you are too drunk to enter the stadium
Throw something at the Game –instead of watching the game, annoy other spectators by throwing things as them so they contact the police or security
Look and Act Guilty – When you see the uniformed officer walk by, immediately put down your beer and begin to walk away so that all the undercover officers know that you are underage and trying to avoid getting caught 

Penalties for Underage Drinking
      While Underage Drinking is only a summary offense, it actually carries substantial penalties, including a maximum fine of $500.00 and 90 day suspension of driving privileges for a first offense.  The fine for second offense convictions of Underage Drinking increase to $1,000.00.  The penalties increase for subsequent offenses, and the greatest penalties tend to be the license suspensions.  For a second offense, the suspension is 1 year, and third or subsequent offenses the suspension is 2 years.  It is also critical to note that only first-time Underage Drinking offenders are eligible to receive a “bread and butter” or Occupational Limited License.  Many Penn State graduates that receive multiple Underage citations during their years at Penn State graduate and enter the job market without the ability to drive.
Only a Fool Has Himself as Lawyer & Ignorance is NOT Bliss

            Generally speaking, you should not represent yourself.  Too many people claim that they cannot afford an attorney, so they contact the officer on their own, or go to court and admit everything to the judge with the hope of leniency.  Anything that you tell the officer or the judge can and will be used against you.  Also, many people mistakenly believe that the police must use 
breathalyzers in Underage Drinking cases.  To the contrary, breath tests are generally not admissible in Underage case IF the defense raises the appropriate objection at the right time.  If the defense does not object to evidence, such as the breath test or hearsay testimony, then the evidence is admitted into evidence and considered by the judge.  Another strategy to use in Underage cases is to seek suppression of evidence.  Again, the burden is on the defense to raise proper arguments to seek suppression, and, if the arguments are not made, the court can consider the evidence.  I have obtained favorable results for many clients charged with Underage Drinking.  

For more info about Underage Drinking, check out this FAQ page on my website.  If you have been charged with a criminal offense in State College, Lock Haven, or Altoona, contact my office for a FREE consultation. 

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.