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September 2013 Archives

Effect of DUI conviction for individuals with Commercial Driver's License (CDL) in Pennsylvania

An individual with a CDL who is convicted of a first offense DUI will have that license suspended for one year.  It does not matter whether the person was driving a commercial vehicle at the time of the DUI, only that the person had a valid CDL at the time of the offense and conviction.  Even if the person enters the ARD program for a first offense DUI, that person will not be able to shorten the period of suspension for his CDL.

D.U.I. Checkpoints in Pennsylvania

A D.U.I. checkpoint constitutes a seizure and is subject to a constitutional analysis.  A checkpoint must meet five criteria in order for the checkpoint to be constitutional: 1. the vehicle stops must be brief and not involve a physical search; 2. there must be sufficient warning of the existence of the checkpoint; 3. the decision to conduct a checkpoint, as well as the time and location of the checkpoint, must be subject to prior administrative approval; 4. the choice of the time and place for the checkpoint must be based on local experience as to where and when intoxicated drivers are likely to be traveling; and 5. the decision to stop drivers during the checkpoint must be established by administrative pre-fixed, objective standards, and not left to the unfettered discretion of the officers at the scene of the checkpoint.

Exigent Circumstances to search without a warrant

In a private home, searches without a warrant are presumed to be unreasonable under the 4th Amendment of the United States Constitution.  Absent probable cause AND exigent circumstances, the entry and search of a home is prohibited. The court considers a number of factors to determine whether exigent circumstances are present: gravity of offense believed to be committed; whether the suspect is armed; whether the police have above and beyond a clear showing of probable cause; police have a strong belief the suspect will be found in the home sought to be entered; whether there is a likelihood the suspect will escape if not swiftly apprehended; whether the entry was peaceable; and the time of the entry.  It is the government's burden to prove, based on these factors, the warrantless entry was justified.

Terry Stop

The United States and Pennsylvania Constitutions protect citizens from unreasonable searches and seizures.  A police officer may briefly detain a citizen, without probable cause, for investigatory purposes in certain limited circumstances.  This type of seizure is known as a "Terry stop" after the United States Supreme Court case, Terry v. Ohio.

Basic overview of searches

The 4th Amendment of the United States Constitution protects against unreasonable searches.  A warrantless search is per se unreasonable for constitutional purposes.  Unless there is an applicable exception to the warrant requirement or there is the presence of probable cause and exigent circumstances, the warrantless search is illegal and unconstitutional.

Determining when police contact constitutes a seizure

The 4th Amendment of the United States Constitution protects citizens from unreasonable searches and seizures.  If police contact with a citizen rises to the level of a "seizure," it must be supported by some level of suspicion that the citizen is or has been engaged in an unlawful activity.  The main question in determining whether a seizure has occurred is. "would a reasonable person feel free to leave the encounter with the officer."  To answer this question, courts look to the totality of the circumstances surrounding the police/citizen encounter.

Rule 600

The first step when analyzing a "Rule 600" issue is to determine whether the Commonwealth committed a technical violation of Rule 600.  In order to determine whether a technical violation has occurred, the court must determine the "mechanical run date" of the case.  The mechanical run date is the last date the Commonwealth is permitted to bring the defendant to trial.  In cases dealing with a defendant who is not incarcerated, the mechanical run date is three hundred sixty-five days from the filing of the written complaint.  In cases dealing with a defendant who is incarcerated, the mechanical run date is one hundred eighty days from the date of incarceration.

Impeaching police witnesses with pending charges

A defense attorney may impeach a police officer who testifies regarding pending disciplinary action or pending criminal charges.  The defense attorney may cross-examine the witness with regard to the fact that the witness is facing or could potentially face criminal charges or disciplinary action, and use that to argue that witness may be testifying favorably on behallf of the Commonwealth to garner favor with his police department or the prosecutors involved in his case.  The defense attorney does not have to prove that the witness is receiving any preferential treatment, just that someone could infer the witness's motive to hope for preferential treatment for his favorable testimony.

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Law Offices of Kelly & Conte
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