Current Events

Unmanned Aircraft Systems in Pennsylvania

Technology is constantly advancing and as we get closer to the world promised in Back to the Future, the more creative the government must be in coming up with regulations for these advances. Drones are a perfect example of advances in technology that have become available to widespread users and are now subject to federal and state regulation.

Drones, also known as unmanned aircraft systems (UAS), are defined as unmanned aircraft (UA) with the associated support equipment, control station, data links, telemetry, communications, and navigation equipment necessary to operate it.

The Federal Aviation Administration (FAA) Modernization Reform Act of 2012 will have the FAA amending its regulations for airplanes and similar aircraft to include rules for UAS. An unmanned aircraft (UA) is considered an aircraft and falls under FAA regulation. Federal and state governments have deemed it necessary to enact laws to regulate drones. Approximately thirty (30) states have passed laws to regulate drones. The federal laws deal with airspace regulation, registration, and safety while the laws in most states focus on privacy.

Can I Fly my Drone?

On January 3, 2012, 49 U.S.C. § 40103 went into effect. Section 40103 requires the FAA to regulate aircraft and UAS operations. 49 U.S.C. §§40101 -113 regulates all unmanned aircraft. At this point, most drone use by everyday citizens is recreational. Still, the government may require you to register your drone. Small drones are considered to be drones that weigh more than 0.55lbs and less than 55lbs, including all the attachments and payloads such as cameras. Small drones may be registered online. Large drones are considered drones that weigh 55lbs or more. Large drones must be registered through a paper system. The following are the federal requirements for flying drones recreationally.

Drone Rules

The FAA has implemented multiple regulations for recreational drone flying. The regulations for flying a drone for fun include the following:

  • must be at least 13 years old;
  • must be a U.S. Citizen or legal permanent resident;
  • must be clear of all aircraft, people, and structures;
  • must operate UAS within visual sight at all times;
  • must not fly UAS no higher than 400ft;
  • must contact the airport or airport traffic control towers before flying within five miles of an airport;
  • must not fly within three miles and up to 3,000 ft in altitude of any major sporting event;
  • must not fly near or over sensitive infrastructures (such as electric plants);
  • must not fly in adverse weather conditions; and
  • must not fly while under the influence.

The FAA has an app that helps UA operators determine whether there are any restrictions or requirements in effect in the location where they want to fly their drone. The app is called B4UFly.

Should Pennsylvania Enact Drone Laws?

In PA, the Legislature has tried to introduce drone legislation in multiple sessions. In 2015, the Legislature proposed four bills and regulations, but none passed. Most recently, on January 20, 2017, the Pennsylvania Senate introduced a bill to amend Title 18 (Crimes and Offenses), in obstructing governmental operations, providing for the offense of unlawful drone activity over correctional institutions. Whether drone regulation will pass has yet to be seen.

Since the FAA laws focus primarily on safety and airspace regulation, the state’s laws have focused mostly on privacy. In Pennsylvania, however, some argue that Pennsylvania does not need additional laws to regulate drones for privacy because existing laws already protect against private citizens spying on others. Private Citizen privacy regulation is just one side of the issue.

A lack of laws regulating government use of drones could become a real issue as drone use becomes more prevalent. The idea that law enforcement could use drones to fly over a person’s private property and potentially gather evidence is scary. The holding by the US Supreme Court in Kyllo v. the United States, 533 U.S. 27 (2001), where the Court held, “[w]here, as here, the Government uses a device that is not in general public use, to explore details of a private home that would previously have been unknowable without physical intrusion, the surveillance is a Fourth Amendment ‘search,’ and is presumptively unreasonable without a warrant,” comes to mind.

According to U.S. officials, approximately one million drones were sold last holiday season, and that number is expected to increase. The holding in Kyllo soon will not apply to drones because unmanned aircraft will not be considered “a device that is not in general public use.” As general drone use continues to increase, it will be important to pay attention to how law enforcement agencies use drones.

Additional Resources

Section § 44102 –Visit the Office of the Law Revision Counsel, the United States Code page for the full statutory language include the subsections of the Federal statute regulating drones.

Fly for Fun –Visit the Federal Aviation Administration website for a list of rules and requirements for flying a drone recreationally. Find the age and citizenship restrictions for flying and also find links to the pages to register your drone.

Interactive Drone Map –Visit Smithsonian Magazine, the official website of the Smithsonian museum, which places a “Smithsonian lens” on the world, looking at the topics and subject matters researched, studied and exhibited by the Smithsonian institution.

Flying a Drone in PA Parks – Visit the Pennsylvania Department of Conservation and Natural Services for more information on the rules for flying drones in the various Pennsylvania State Parks.

 

 

 

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Pennsylvania’s New Record Sealing Law: What You Need to Know if You Have a Criminal Record

 

erase

On February 16, 2016, Governor Wolf signed into law Senate Bill 166, an expansion to Pennsylvania’s dissemination of criminal information laws. Although the law has been widely described as an expansion of the current expungement law, it is, rather, an entirely new statute. The new statute takes effect on November 14, 2016.

Under the new statute, 18 Pa.C.S. 9122.1, an individual with a certain criminal record may petition the court for an Order for “limited access” (i.e. sealing).

If granted, no criminal justice agency (including police stations, jail and prison facilities, probation departments and district attorneys’ offices) may disseminate information about the individual’s criminal conviction to anyone or any agency.

With some exceptions, most misdemeanors of the second and third degree will be expungeable when the new law takes effect in October of 2016.

Another benefit under the new law is that individuals can successfully refuse to disclose information about the sealed case to non-criminal justice agencies. This includes employment applications, which was a major factor pushing the bill into law.

Sealing an Criminal Record in Chester County or Delaware County, PA

Call the attorneys at the Skinner Law Firm if you are interested in sealing or expunging a criminal record in Chester County or Delaware County, PA.

We also help clients seal or expunge a record throughout the surrounding areas of Pennsylvania. Call us to speak directly with an attorney to discuss your case.

With offices in West Chester in Chester County (610-436-1410) and Media in Delaware County (610-565-3320), we are here to assist you in moving past your criminal record.


Who is Eligible to Seal a Record under Pennsylvania Law?

A person who has a conviction for a second degree misdemeanor, third degree misdemeanor or ungraded misdemeanor and who has been free of arrest or prosecution for the past 10 years is eligible.

The 10 year wait period does not start until completion of probation, parole or other supervision. Anyone who has ever been convicted of one of the following offenses is not eligible:

  • Ungraded misdemeanor punishable by more than two years;
  • Four of more misdemeanor offenses;
  • Sexual Intercourse with an Animal;
  • Obstruction of Child Abuse Case;
  • A conviction that requires Meghan’s Law (sex offender) registration;
  • Retaliation Against a Witness;
  • Intimidation of Witnesses;
  • Impersonating a Public Servant; or
  • A second degree misdemeanor for Simple Assault (M2).

What convictions can be sealed in Pennsylvania?

As mentioned above, certain convictions cannot be sealed even if they are second, third or ungraded misdemeanors. The law also clearly disqualifies simple assault convictions unless it was a third or ungraded misdemeanor.

Thus, common offenses that may be sealed under the new law include first offense DUI, possession of marijuana, possession of drug paraphernalia, and certain theft, trespass and firearm offenses.


What is the procedure to seal the record?

A person who is eligible files a petition in the Court of Common Pleas in the county where the guilty plea or verdict took place. The District Attorney’s Office has thirty (30) days to consent or object.

If the District Attorney’s Office objects, there will be a hearing before a judge. If the District Attorney’s Office does not object, the Order will be granted and notice of the sealed Order will be submitted to the appropriate agencies.

It is important to note that there are exceptions to the law. For example, legal, medical, teaching or nursing agencies that issue professional occupational licenses may request criminal information from a sealed case.

In addition, if there is an investigation by a county children, youth and family agency or Department of Public Welfare, criminal information may be requested.

It is important to remember that the purpose of the law is not to expunge or erase a criminal record. The purpose of the law is to seal a case from public access after successfully showing years of law-abiding behavior.


Additional Resources

Section 9122. Expungement in Pennsylvania – Visit the website of the Pennsylvania General Assembly to read more about Title 18, on expungement. Find the specific proceedings subject to expunction including criminal history record information. Also find a list of offenses with a prohibition on expunction after the defendant was placed on Accelerated Rehabilitation Disposition (ARD) when the victim was under 18 years of age.

§ 9122.1 Order for limited access – The new law for sealing records in Pennsylvania provides, in part:

(a) General rule.—The following shall apply:

(1) Notwithstanding any other provision of this chapter, upon petition of a person who has been free of arrest or prosecution following conviction or final release from confinement or supervision, whichever is later, for a period of 10 years, the court of common pleas in the jurisdiction where the conviction occurred may enter an order that criminal history record information maintained by any criminal justice agency pertaining to a conviction for a misdemeanor of the second degree, a misdemeanor of the third degree or an ungraded offense which carries a maximum penalty of no more than two years be disseminated only to a criminal justice agency or a government agency as provided in section 9121(b.1) and (b.2) (relating to general regulations).

(2) Except when requested or required by a criminal justice agency, or by and for the official use of a government agency described in section 9121(b.1) or 9124(a) (relating to use of records by licensing agencies), no individual shall be required nor requested to disclose information about the person’s criminal history records that are the subject of a court order for limited access granted under this section…..

…..(c) Notice to district attorney.—The court shall provide notice of the filing of a petition under subsection (a) to the district attorney within 10 days. Within 30 days of receipt of notice, the district attorney may file objections to the petition. If no objection is timely filed, the court may grant the petition without further hearing if the requirements of this section have been met.

(d) Notice to central repository.—Notice of an order for limited access shall promptly be submitted to the central repository which shall notify all criminal justice agencies which have received criminal history record information related to such conviction that access to such criminal history record has been limited by order of the court.

Expungement of Juvenile Record in Chester County, PA – Visit the website of Chester County, PA, to learn more about the expungement process for a juvenile record in Chester County, PA. Find information on the process to legally erase a juvenile record or seal the record making it permanently unavailable to the public. Find out more about when the Juvenile Probation Department will expunge any information it creates and any information it receives from outside sources. Also find information on when the State and Local Police will expunge arrest records and records of juveniles’ dispositions upon receipt of a certified court order from the petitioner.


What should I do if I am eligible?

If you are eligible under the new law to seal your criminal case, contact an attorney at Skinner Law Firm to discuss your options further. With offices in West Chester in Chester County (610-436-1410) and Media in Delaware County (610-565-3320), our attorneys are here to assist you in moving past your criminal record.

Call us to seal or expunge your criminal record in West Chester for Chester County or in Media for Delaware County, PA.

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Expect DUI Checkpoints This Halloween Season


As the drunken driving prevention campaign from the National Highway Traffic Safety Administration (NHTSA) notes, “There’s nothing scarier on Halloween than a drunk driver.”

According to NHTSA, a staggering 43 percent of all motor vehicle deaths during the five Halloween nights between 2009 and 2013 involved drunk driving. Additionally, 26 percent of all pedestrian fatalities on Halloween night in 2013 involved a drunk driver.

Last year, a 50-year-old woman was convicted of third-degree murder, homicide by vehicle while driving under the influence, homicide by vehicle, accidents involving death or personal injury, and driving under the influence (DUI) after she had a blood alcohol content (BAC) of 0.203 percent when she collided with a minivan on Halloween 2012, killing a 52-year-old Brookhaven woman. The offender was sentenced to serve 9 to 18 years in a state correctional facility last June.

Accidents like this are why there will be an increased national focus on drunk driving prevention this Halloween. Local police in and around Chester County have not yet announced specific DUI checkpoints, but drivers in Southeastern Pennsylvania will be coming across them this Halloween.

DUI checkpoints are not created at the whims of the authorities.  There are statutes and rules that must be followed during their implementation. DUI checkpoints require administrative approval and prior notice to the public of their locations. Vehicles to be stopped during a checkpoint must be pre-determined (such as every third car) and not just arbitrary or randomly stopped.

The surest and safest way to avoid a tragic accident or DUI arrest (or both) is simply to have alternative transportation plans arranged if you will be consuming alcoholic beverages. If you do come across a DUI checkpoint, you should be aware of your rights during this encounter with authorities.

  • Exercise Your Right to Remain Silent — Remember that the Fifth Amendment to the United States Constitution allows you to assert the privilege against self-incrimination. This means that you have the right to refuse to answer any question until you have legal representation. Your Fifth Amendment rights are especially critical when it comes to the basic and common question of, “Have you had anything to drink tonight?” If you have had anything to drink, any honest answer can be grounds for further investigation of your mental state. Lies or common statements such as “I only had a few…” tend to spur roadside tests. Simply stating that you choose not to answer the question cannot be used against you.
  • Refuse Any Roadside Tests — Most police officers will want you to get out of your vehicle and perform a series of field sobriety tests. The only three tests that have been standardized by the NHTSA are the Horizontal Gaze Nystagmus, One-Leg Stand, and the Walk and Turn test. Even then, these tests still have inherent flaws that can make them difficult to pass for drivers who are sober. Furthermore, some officers use non-standardized tests such as reciting the alphabet backwards or performing the Romberg balance test. These tests are essentially designed to have people fail and give authorities supposed probable cause to arrest alleged offenders. 

If you should happen to be arrested for DUI at a checkpoint in Southeastern Pennsylvania, you will want to immediately contact an experienced West Chester DUI defense lawyer. Our attorneys can review not only the circumstances surrounding your DUI arrest, but the legality of the checkpoint itself.

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Two For the Price of One: B2 Visitor Visa Information Ahead of Pope Francis’ Visit

Capri Nations

TWO FOR THE PRICE OF ONE:

B2 VISITOR VISA INFORMATION AHEAD OF POPE FRANCIS’ VISIT

With the upcoming September 2015 World Meeting of Families set to take place in Philadelphia, it will be the first (and likely last) time most Americans will be able to see Pope Francis.  Considering the excitement of the event, it is not uncommon that people wish to use this event to invite foreign relatives to the United States. Inviting relatives to visit the United States is not as simple as boarding a plane and passing through customs. A majority of foreign nationals need a tourist visa to travel to the United States. Only a small population of nationals from mostly European and a few South Asian countries may apply for a visa waiver program.[1]

Any person wishing to tour the United States must obtain a B2 Tourist Visa from a nearby American Embassy or Consulate. Generally, a foreigner submits an electronic application, pays the filing fee and schedules and attends an interview. Each Consulate may require additional local rules, so it is important to call or go to the consulate’s website beforehand. In addition, the interview and processing times vary from city to city. Some cities can see a B2 applicant interviewed and processed within a week; other countries require at least a month for each. Interview and processing times can be checked through the State Department website here.

Shortly after the interview, he or she will receive an approval or denial. Even with an approval, a tourist visa only guarantees a person is allowed to get to the United States. Once at Customs, depending on certain grounds of inadmissibility, entry may still be denied. There are many reasons why an otherwise eligible applicant’s tourist visa could be denied.  The application asks many questions regarding personal, criminal, previous immigration and familial information. A single mistake could result in a denial. Consider the following:

Luiz, a Brazilian national, applies for a tourist visa. On his application, Luiz lists his purpose as travel for two months, and lists a four-star hotel in New York City as his location. However, in reviewing his occupation, immigration officials notice he has a low to moderate income and little to no documents showing how he will pay and support himself in New York City. At his interview, Luiz is shocked to almost immediately be given a denial.

In this scenario, Luiz may have mistakenly forgotten to indicate that his parents were paying for his trip out as a gift for his recent graduation. He also may have forgotten to submit documents to support this. These documents could have included receipts, a letter from his parents’ credit card company confirming his authorization on their card and even affidavits from his parents. Unfortunately, he will have to apply again, hopefully in time for his travel.

However, most B2 Visas are denied because the applicant can’t prove he or she intends to enter and stay only as a visitor, with the intent to actually leave the United States sometime in the future. This requirement is mandated by immigration law and immigration officers must consider it when reviewing an application. The reason tourist visas are carefully scrutinized is because of the potential for abuse: anyone who could easily obtain a tourist visa could enter, overstay and remain in the United States illegally with little to no effort. Immigration officers have carefully selected ways of detecting who truly intends to enter as a visitor.  Consider the following:

Bo, a Chinese national, wants to travel to the west coast of the United States for a tour of national parks. Only wanting to visit a few big parks, but not knowing exactly which ones, she applies for a tourist visa for 2 weeks. Unlike Luiz, Bo submits B2 supplemental documentation that she believes proves she is only staying in the United States temporarily, and will actually leave: a letter from her employer granting vacation leave, bank accounts showing sufficient funds in Chinese banks, affidavits from her boyfriend, her apartment lease contract, and even submits proof that she has previously visited other countries’ national parks as a token of her hobby. After processing, her visa is approved.

Many tourist visas are used to visit relatives, and as a result, an applicant can’t provide receipts from hotels. In these situations, it may not be clear to immigration officials how a foreigner will support himself or herself while in the United States. In these situations, an applicant may need to dig deeper for documents from relatives or have his or her relatives submit an Affidavit of Support, which is an official immigration form. It is very important to prepare and file these documents truthfully and correctly, as a relative may be liable in the event a foreign national becomes a public charge.

If you reside in the United States and wish to invite a foreign relative to visit, including the upcoming Meeting of the Families event in Philadelphia, preparation and presentation is vital. In some cases, your relative may be ineligible to apply for a tourist visa based on a past immigration violation or current condition. In these cases, it is important to save time, money and effort by contacting an attorney beforehand for assistance. Call us today at (267) 388-3476 to inquire about obtaining a tourist visa for your loved ones.

 

[1] As of June 2015, these countries include only: Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Irelan, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan and the United Kingdom. See Here for more guidance.

 

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Possible Changes to Pennsylvania’s Expungement Statute

Old Courthouse

On January 15, 2015, Pennsylvania Senate bill SB 166 was introduced, which would allow persons with certain misdemeanor convictions to expunge their records. This is an updated version of a similar bill that was proposed in 2013, but never voted upon. Currently, the law allows for expungement of convictions only in the following limited circumstances:

  • A person who was convicted of a summary offense (non-traffic citation) may seek an expungement if he or she has been free of arrest or prosecution for five years after the conviction. Common summary offenses include disorderly conduct, trespassing, criminal mischief, retail theft, harassment, and public intoxication.
  • An adult (over 18 years old) who was convicted of 18 Pa.C.S. 6308 (underage drinking) may seek an expungement if he or she reaches 21 years old and has satisfied all penalties from the case, including license suspension.
  • A person may seek an expungement of his or her criminal record when he or she reaches 70 years old and has been free of arrest for at least 10 years since release from incarceration, parole or probation.
  • An individual has been dead for 3 years.

As indicated above, expungements of convictions are very limited. Misdemeanors will always be part of your criminal history record and are accessible by employers, family members, schools and even the public. It does not matter how much time has passed, or whether you have been successfully rehabilitated.  If you were convicted of any misdemeanor, you cannot currently seek an expungement unless you are old or dead. SB 166 seeks to change this unfairness of the current law.

Under SB 166, persons with ungraded misdemeanor, third degree misdemeanor and/or second degree misdemeanor convictions will be allowed to expungement their record once a certain amount of time has passed. For ungraded and third degree misdemeanors, a person must wait 7 years. For second degree misdemeanors that occurred when a person was under the age of 25, he or she must wait 10 years. The bill would not allow expungement of any of the following misdemeanors:

  • An offense punishable by imprisonment of two years or more
  • Four or more offenses punishable by imprisonment of one year or more
  • Firearm offenses
  • Simple assault graded as a second degree misdemeanor
  • Animal abuses until section 3129
  • An offense of impersonating a public officer
  • An offense of intimidating or retaliating against a witness
  • An offense of cruelty to animals
  • Meghan’s law registration offenses

At this point, the status of the bill is unclear. However, there is much to be addressed. Unfortunately, the bill does not include first degree misdemeanor convictions, even for first time offenders. In addition, the bill distinguishes between those under 25 years old and those over 25 years old who have second degree misdemeanors. This type of distinction is fundamentally unfair to people who otherwise become successful members of society many years down the line. Hopefully, the current hiatus status of the bill means there will be changes to the final version.

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Westchester Defense Attorney Discusses the Criminal Justice Reform Act Recently Signed into Law

 

In what may be one of the most dramatic reforms in recent Pennsylvania history, the Criminal Justice Reform Act was signed into law by Gov. Tom Corbett in July. Looking to remedy the inherent flaws and growing strain on the inefficient Pennsylvania justice system, the Act hopes to reduce prison populations and cut costs while shifting focus towards rehabilitation as opposed to punishment.

As a state that has garnered the reputation as being one of the most punitive in the nation, the reforms could not come soon enough. The consequences of strict sentencing and reactive law enforcement over the past two decades have led to a state prison population of 51,757. This huge amplification in prisoners comes out to a 40% increase over the last 12 years. The corrections budget has ballooned to $1.86 billion a year, with these funds unable to remedy the fact that 26 penitentiaries were found to be over capacity by at least 4,000 inmates. These numbers are alarming, disturbing and unsustainable.

The mandatory minimum sentences, for-profit prisons and lack of diversionary programs have been the three largest contributors to this mess the justice system has found itself in. Locking up offenders for minimum terms, particularly non-violent criminals, without considering the situation is a reactive approach that is not welcome in a society that prides itself on due process and justice.

Minimum sentences are obviously huge benefits for corporations that own the prisons that profit from extended jail stays. This conflict of interest is unconscionable but has continued to be prevalent throughout our county, mainly because of public misinformation and selfish financial interests of the few. Not only are prisoners given mandatory, arbitrary sentences, they are also not given ample opportunities to rehabilitate and learn how to be a productive member of society. This vicious cycle makes it more difficult for a Pennsylvania criminal defense attorney to fairly represent an alleged offender when the odds are completely out of their favor.

Considering the recidivism rate in Pennsylvania shows that 46% of offenders are back behind bars within three years ($244 million spent on this alone), the Reform Act has become a vital aspect of our justice system going forward. As a point of comparison, the country of Norway is known to have one of the most progressive prison systems in the world and currently has a recidivism rate of 20%.

The Criminal Justice Reform Act makes many changes to the Pennsylvania criminal justice system. Some of the substantial revisions include expanding the eligibility for intermediate punishment, a program for nonviolent offenders convicted of an offense motivated by the use or addiction to drugs, along with banning defendants convicted of certain misdemeanors from serving their sentences in state prison.  In addition, the Act moves to establish as a default that parolees are returned to community corrections centers, in lieu of state prison, for most parole violations.

One of the most progressive aspects of the bill is the requirement to reinvest any savings from reducing the prison population to create a risk-assessment tool for judges when sentencing defendants, to fund local law enforcement and to give judicial districts and incentive to divert defendants to county jails through programming such as treatment and drugs courts.

The measures mandated by the Criminal Justice Reform Act are projected to lower Pennsylvania’s prison population by as many as 4,000 inmates over four years and to save up to $370 million in five years. The fact that it has taken this long to reach a simple conclusion is frustrating, considering that many accused criminals (many of which are non-violent) have languished in prison without any options to move in the right direction. It is vital that our state lawmakers implement this Act in a timely and efficient manner, allowing our society to evolve and become safer.

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Controversial New Pennsylvania Wiretapping Bill Discussed by West Chester Criminal Defense Attorney

The Pennsylvania House of Representatives recently passed a revised wiretapping bill that would expand on the ability for law enforcement agencies to track suspected criminals. House Bill 2400 was voted through with overwhelming support, 145 to 52 on June 13, 2012. The bill contains some helpful provisions that would aid in developing a more effective law enforcement system, but also contains wording that is a direct assault on the privacy and individual rights of Pennsylvania citizens.

The bill amends Act 18 of the original 1989 wiretapping law through a dozen new provisions and updates, and will move to the state Senate in the fall. Among the changes, HB2400 broadens the legal circumstances under which civilians and law enforcement can record oral communication without consent and how recordings can be used as evidence in the criminal court system.

The most glaring examples of this includes the expansion on a resident’s capacity to make secret recordings of alleged criminal activity, the new capacity for police to open and respond to messages on a cell phone if they suspect the communications relate to crime, and the ability to wiretap a person as opposed to just a phone line.

These provisions, while singularly beneficial from a law enforcement perspective, have the potential to seriously infringe on the rights and privacy of free citizens while also creating an environment of fear, distrust and paranoia within communities. HB2400 gives law enforcement unprecedented power to spy on individuals who they suspect are engaging in criminal activity, such as drug trafficking or possession with an intent to distribute.

For example, under HB 2400, only one party would need to be aware of a wiretap or recording for it to be legal, if they believed that the other party would speak about committing a crime, or confess to one. This can also include a “third party” which means that telephone companies, internet providers or computer technicians could be used as interception agents without a warrant. In the bill’s wording, it is legal for “Any individual to intercept the contents of any wire, electronic or oral communication if that person is under a reasonable suspicion that the intercepted party is committing, about to commit or has committed a serious crime.”

This Orwellian provision may help in certain cases where crime victims need to gather evidence of wrongdoing, such as sexual assault, but it is a near certainty that there will be exponentially more situations where privacy is improperly invaded. This will likely produce a climate of distrust that degrades the ability for our society and community to operate without fear of privacy invasions.

The other primary source of contention is the ability to now wiretap a person as opposed to just the phone. The bill also allows for what is known as “target-specific wiretaps,” which prosecutors say will allow them to track drug dealers and criminal suspects who allegedly use more than one pre-paid mobile phone to throw off law enforcement. This presents many issues that could complicate matters in a criminal investigation and defense of the charges, by allowing for inter-jurisdictional surveillance and interception of communications without a warrant, even if the individual had not yet committed a crime and the judge has not been notified of the activity.

This bill presents specific privacy and individual rights abuses for those being investigated for drug crimes, while also hampering the ability for a West Chester drug defense attorney to effectively and fairly do their job and protect the rights of their clients. This precedent will lead to a major advantage to the prosecution while the defense will have to compete with intrusive and constitutionally ambiguous evidence presented.

With this erosion of constitutional rights, there is greater possibility for individuals accused of drug crimes having to deal with the already harsh penalties in Pennsylvania law. An example would be the sentencing for possession with intent to distribute, which according to §7508 of the Pennsylvania Consolidated Statutes, could bring up to 15 years in prison and fines of up to $250,000. With stakes this high, it is dangerous to give one party such expansive liberties during criminal investigations.

It is justified and expected for legislators to help police keep pace with suspected criminal activity, but not to hasten the attack on privacy that has already begun through to the proliferation of visual and audio recording devices. This bill is bad news for citizens of the state, as it legalizes total surveillance without any specific crime, without court orders, without a warrant, all while throwing out constitutional protections. This will bring undue burden to suspected criminals, particularly those accused of drug crimes. The Senate should strip the unnecessarily invasive aspects of the bill and focus on strengthening our justice system without it being at the expense of the citizens of Pennsylvania.

 

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Chester County Attorney Discusses Court Decision that Gives Added Protection to Juvenile Offenders

A recent Pennsylvania Supreme Court decision has lead to additional protections being given to juvenile offender who get in legal trouble. These protections mostly pertain to the proper dissemination of juvenile offender information and the prevention of the school’s ability to take disciplinary measures for when a child gets in trouble off the school premises. The changes and additions can be seen in the revised version of Pennsylvania’s Rules of Juvenile Court Procedure, specifically in the form of revisions to Rules 160 and 163 and the new Rule 161.

This decision comes at a time when many highly publicized recent situations where Pennsylvania high school students were forced to miss their graduations or were suspended for various off-campus infractions, including possession of drug paraphernalia.

Rule 163, which deals with the release of juvenile information to schools, will now disallow school officials from taking any disciplinary action, with the potential to be found in contempt, if not followed. This includes the inability to suspend, expel, or otherwise block students from taking part in school activities, particularly graduation. Put simply, off-campus legal issues are not to be used against the juvenile for disciplinary reasons.

The new provision, Rule 161, sets forth that juvenile probation offices have discretion to disseminate portions of their files to the juvenile, service providers, placement facilities and court staff when serving that child. It also adds needed language about how electronic records may be inspected, which he said provides safeguards against the information adversely affecting employment opportunities and credit checks. Electronic records will be subject to inspection and copying only pursuant to a court order.

All of these rule changes and additions are extremely beneficial to the youth of the state. It allows for the protection of juveniles against addition, unnecessary punishments, while protecting their personal information.

The state of Pennsylvania has come under heat in the recent months over their handling of juvenile offenders, with the particularly divisive issue of allowing juveniles to be sentenced to life in prison without probation being a hot topic. Although not close to the severity of that major issue, the revision of juvenile rules has given minors an impartial and equitable opportunity to learn for their mistakes.

Having additional school disciplinary action is akin to receiving both state and federal convictions, where a person is punished twice for a single offense. The difference is that a person would have broken two separate laws, whereas a student would have only broken one. If you look at it this way, the previous reporting process would in fact grant an institution, which was not connected in any way to the offense, the authority to punish individuals, simply because they attend that school. This was inherently unfair and forced children to deal with multiple, unrelated punishments. In fact, even if the minor had a pennsylvania juvenile defense attorney who helped get the other charges dropped, the prior rules would have allowed the schools discretion to punish separately.

If the offense was not committed on school property, then there is absolutely no reason or justification to involve an educational institution with a juvenile infraction that happened off school property. This not only disproportionately punishes the student, but it also isolates them as troublemakers and juvenile offenders, obstructing their ability to complete tasks at school. Juveniles are still growing into their body and minds, and such severe sanctions have the potential to lead to deleterious effects and consequences that could stay with the individuals, making it more difficult for them to move forward in life and accomplish their goals.

The Supreme Court must be praised for their decision and it is the hope of all individual and families in the state of Pennsylvania that they are treated fairly and not handed down additional punishments for off-campus offenses.

The new provisions are set to go into effect in August of 2012.

 

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West Chester Criminal Defense Attorney Discusses Supreme Court Argument Regarding Life Sentences Without Parole for Juvenile Offenders

The topic of juvenile offender sentencing has received national attention recently when the United States Supreme Court held arguments regarding the prospect of limiting the harshest of these juvenile punishments. This is particularly important to those in Pennsylvania, considering the state has the largest concentration of juvenile offenders who have been sentenced to life without parole in the nation. The eventual decision has implications that extend to not only juvenile offenders, but also those that provide legal counsel to them.

On March 20, 2012, the Court heard oral arguments in Miller v. Alabama and Jackson v. Hobbs, two cases involving lifers who were fourteen when they committed murder. A majority of the justices seemed ready to move this argument forward, but it is still unclear how far they are willing to go regarding setting limits of such punishments.

This revisiting of juvenile laws could have a profound effect on the approximately 470 prisoners in Pennsylvania serving life without parole for crimes they committed as teenagers. In forty years, the Commonwealth of Pennsylvania has gone from holding a small handful of juvenile lifers with no possibility of release to holding the highest number in the country. Nationwide, the number stands at around 2,589. A reversal of current laws will allow for many of these inmates to be entitled to a resentencing hearing.

Even with having committed horrendous crimes, the prospect of a lifetime in prison for a juvenile, who may or may not have understood the severity of his/her actions, seems to be unjust and antithetical to the intentions of our justice system.  One example is that of a Pennsylvania juvenile, who at fourteen years-old, set fire to the house of friends whose mom would not let them play with her, killing two boys in the process. Homicide may not have been the intention, but the crime was so serious that the Commonwealth of Pennsylvania tried her as an adult, where her charges would come with mandatory sentencing. She was eventually found guilty of arson, two counts of second-degree murder and causing or risking a catastrophe. That was in 1976, and the offender is still in prison to this day for the crimes she committed at fourteen years old.

Had the young fourteen year-old been facing the death penalty, she would have had the right to introduce mitigating evidence, according to a Supreme Court ruling the previous year, striking down mandatory death sentences as cruel and unusual punishment. However, no such right is given to defendants facing mandatory life sentences. In Pennsylvania, this meant that her age, severe mental problems, history of abuse and neglect, and, most critically, rehabilitative potential were not up for discussion.

At the heart of the Miller v. Alabama and Jackson v. Hobbs defense is the argument that regardless of the crime, fourteen is too young to be discarded as beyond help. Teenagers are impulsive, prone to risky actions and highly vulnerable to peer pressure, and the younger ones are still quite far from mental maturity. “At fourteen,” the Miller appeal argues, “the major transformation in brain structure that will result in a sophisticated system of circuitry between the frontal lobe and the rest of the brain, enabling adults to exercise cognitive control over their behavior, is barely underway.”

With this scientific understanding of the situation, the Supreme Court has made strides. In the recent hearings, the majority opinion in both cases were written by Justice Anthony M. Kennedy, who said teenagers deserved more lenient treatment than adults because they are immature, impulsive, susceptible to peer pressure and able to change for the better over time. Bryan A. Stevenson, a lawyer with the Equal Justice Initiative, which represented both defendants in Tuesday’s arguments, said that logic should apply in at least some cases involving killings.

The United States Supreme Court should take the pragmatic and fair stance of not only prohibiting sentences of life without parole for offenders younger than fifteen, but barring the punishment for all juvenile offenders. This would allow both the juvenile in question and their juvenile criminal defense attorney to find a solution that allows for the offender an opportunity to prove that he/she may eventually be deemed fit to re-enter society, rather than just tossed in jail for life.

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Pennsylvania Criminal Defense Attorney on the Proposal to Bring Back Indicting Grand Juries

Indicting Grand Juries in Pennsylvania

Philadelphia is currently in the process proposing one of the biggest overhauls to its court system since the 1970’s, when indicting grand juries (citizen juries tasked with reviewing evidence and bringing charges against those who allegedly committed crimes) were abolished to make for a more efficient court process. So what revolutionary new ideas do they have to help the court system? Former and current prosecutors are proposing that the state use indicting grand juries to avert witness intimidation and hold fugitives accountable. In essence, they are proposing a failed policy in order to help a struggling court system.

The new proposal permits a court to impanel an indicting grand jury in cases in which the state submits and ex parte motion to the judge alleging that witness intimidation has occurred or is likely to occur. If this happens, no preliminary hearing will be held. It will also allow trials in absentia, where the defendant can be tried without even being present.

Although witness intimidation and court absence is a problem that needs attention, this is an ill-advised proposal that will restrict the rights of individual citizens to a fair trial. This will effectively allow juries to trample on the defendants right to test eyewitnesses, which is a vital part of the criminal defense process. Both the defendants and criminal defense attorneys will be put at an immediate disadvantage if these proposals are enacted into law, by being unable to present their case properly.

The potential issues inherent in these proposals start with the actual implementation. These proposed rules are beyond the decision-making authority of the Pennsylvania Supreme Court, considering that they have an implication on substantive rights. According to Article V, Section 10(c) of the Pennsylvania Constitution, an individual is free from a prosecution commenced through an indicting grand jury. The Pennsylvania Legislature previously stripped Courts of the jurisdiction to provide for the initiation of proceedings through an indicting grand jury, thus effectively providing a substantive right of an accused to be free from indictment.

Secondly, the new rules are unnecessary because the criminal justice system already has processes in place to remedy the issues that the proposal seeks to address. Much of the push for these rule changes have come from independent experts and newspaper articles discussing specific instances, rather than a larger problem. The PA Supreme Court should never propose rules that substantively alter the rights of an accused and abolish a proceeding that has been integral to the criminal justice system, based solely on newspaper articles and independent opinions, particularly if these finding are isolated within a small area or single district.

Lastly, the proposed rules contain several procedural infirmities, which directly affect a citizen’s right to the effective representation of counsel. The rules would permit the state to forego a critical proceeding (preliminary hearing) simply by filing an ex parte motion with the judge, asserting that witness intimidation has occurred or may occur. The specific rule (556.2) does not provide for any burden of proof or require the state to present facts establishing a preponderance of evidence or clear and convincing evidence that witness intimidating occurred.

In addition, the rule’s specific wording effectively permits an individual to be indicted and forced to trial based on unchallenged testimony, hearsay testimony, and evidence that may be incompetent to establish a prima facie case that the accused was involved in some wrongdoing.

Pennsylvania will be in a worse position than before if they move forward and pass the new legislation. The rules attempt to abolish preliminary hearings, which are not only an opportunity to test eye witness testimony and the strength of the state’s case against the individual, but are also key in allowing a Pennsylvania criminal defense attorney the ability to fairly and adequately develop an effective defense. Having the full capacity to argue your case and get to the bottom of what happened during an alleged criminal offense is paramount to protecting the rights of Pennsylvania citizens and these rule changes will have the opposite effect.

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