Drug / Marijuana Charges

Prescription Marijuana Could Result in a DUI Arrest In Pennsylvania

Pennsylvania recently hopped on board the ever-growing list of states that have made medical marijuana possible for chronically ill people. However, the new law did not address, nor change, the current DUI laws. As such, considering the archaic nature of the Pennsylvania Criminal Code, it remains illegal to drive with any marijuana in one’s system. This article will seek to clarify the law about driving and marijuana use in Pennsylvania.

DUI Laws in Downingtown, Pennsylvania

In Pennsylvania, it is illegal to drive, operate or be in actual physical control of the movement of a vehicle with marijuana in one’s blood system. Driving and operating a vehicle is obvious – whether a driver is on a highway or roadway, he or she is driving.

It is important to note the latter phrase “actual physical control.” This statement incorporates non-moving conduct, such as sitting in a parked vehicle with the engine running.

Therefore, even if a driver does not have an intention of driving the vehicle, he still has physical control of the vehicle’s movements. Under this scenario, he or she could be arrested.

Penalties for Cannabis-Based DUI in Chester County, PA

DUI offenses in Pennsylvania involving a controlled substance, such as marijuana, are subject to the highest penalties possible. The range of penalties that can be imposed on a defendant are contingent on the existence of prior DUI convictions, if any.

For a conviction, under 75 Pa.C.S. §3802(d), the following mandatory minimum penalties apply:

Mandatory
Incarceration

Minimum
Fine

License Suspension

Ignition Interlock

First Offense

72 hours

$1,000

12 months

No

Second Offense

90 days

$1,500

18 months

Yes

Third Offense

1 year

$2,500

18 months

Yes

Fourth + Offense

1 year

$2,500

18 months

Yes

Medicinal Marijuana Could Result in a DUI in Norristown, PA

Under 75 Pa.C.S. §3802(d)(1), it is illegal to drive with any amount of a Schedule I Controlled Substance in a driver’s blood system. Marijuana is a Schedule I drug under both Pennsylvania and Federal law; however, marijuana is unique in that it contains both active and inactive ingredients. Some drivers will show signs of recent marijuana use during a traffic stop. A majority of driver’s won’t show any signs of recent marijuana use, but will still have inactive metabolites in their system.

Prescription Marijuana Results in a DUI Arrest in Lancaster, PA

There are no current medical marijuana laws that protect drivers in Pennsylvania or elsewhere. It is irrelevant if a patient’s ID card is from a state that either allows medical marijuana patients to drive or otherwise legalizes marijuana.

This means, driving under the influence of marijuana, including medically prescribed marijuana, could potentially result in an individual being arrested for a DUI offense in Pennsylvania.

Effectively Dispute a Marijuana-based DUI in West Chester, PA

Most first time offenders will be eligible for Pennsylvania’s Accelerated Rehabilitative Disposition (ARD) program. Upon successful completion of this program, all DUI charges qualify for dismissal and expungement.

Similarly, some defendants find the benefit of being admitted to Drug Court for marijuana-related cases. Successful completion of Drug Court allows the same charges to be dismissed and expungeable.

For defendants who are ineligible for ARD or Drug Court, there are still options to fight a DUI based on marijuana, such as:

  • A member of law enforcement must be within his or her jurisdiction to approach, investigate and/or arrest an individual.
  • A member of law enforcement must have reasonable suspicion to stop a moving vehicle or detain a person in a non-moving vehicle.
  • Defendants have the right to cross-examine and discredit an officer’s testimony regarding impairment.
  • A member of law enforcement must have probable cause to arrest a person for marijuana-based DUI.
  • Blood tests must be obtained with a driver’s consent or valid warrant.
  • Blood tests must be administered pursuant to specific rules and regulations.
  • Even if a blood test shows the presence of marijuana, the test must still be admissible in a court of law.

Things To Remember If Arrested for a DUI in Pennsylvania

A few words of advice apply to all criminal defendants. If you have been arrested or accused of a marijuana-based DUI,

  • Do not speak to, text, write or otherwise communicate to anyone about your case, especially the officer.
  • Do not post anything to social media platforms about your case, including Facebook, Twitter, Snapchat, and Instagram.
  • Consult an attorney right away to preserve your options, including eligibility for ARD or Drug Court.
  • Write down everything you remember about the night of the arrest, from the pre-arrest period to being released from the police station.
  • If there are any witnesses, such as a passenger, have them do the same as above.

The trial-proven attorneys at the Skinner Law Firm handle all forms of DUI cases, including DUI by marijuana and DUI by any other controlled substance. It is imperative to speak with an attorney before your first hearing.

If you have been arrested for DUI and fear you may have had any marijuana in your system at the time of your arrest, call the Skinner Law Firm today to schedule a consultation at (610) 436-1410.

 

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How Alcohol and Drugs Can Affect Your Immigration Status

There are three major ways that alcohol and drugs can affect immigration status: substance abuse, criminal convictions, and criminal association. Not only can drugs and alcohol prevent you from getting a green card, but they can make you deportable. It is important to note that everyone’s case is different. In some cases, you do not need a conviction to be considered inadmissible or deportable. In other cases, a criminal defendant can plead guilty to a felony drug trafficking charge and preserve his or her immigration options. Below are a few common ways that drugs and alcohol can affect immigration status.

 

Drug Addict or Alcoholic

Under 8 U.S.C. 1182, any alien who is determined:

(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or

(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or

(iv) … to be a drug abuser or addict,

is inadmissible.

If an immigration applicant admits to doing drugs or drinking to a point of self-harm, he or she may not be able to obtain a green card or enter the United States. When a USCIS or consular officer suspects an applicant is a drug addict or harmful alcoholic, the officer will likely refer the applicant to a civil surgeon for a medical review. If the civil surgeon concludes the applicant is a drug addict or harmful alcoholic, any application for a green card or visa will be denied. In addition, even though alcoholism isn’t an explicit inadmissibility ground, alcoholism tends to lead to harmful behavior that is. It is important to never freely admit to or discuss any drug use or any problematic alcohol use with anyone.

Even if a person is already in the United States, he or she could be deported. Under 8 U.S.C. 1227(a)(2)(B)(ii), “any alien who is, or at any time after admission has been, a drug abuser or addict is deportable.” Although there are few ways that ICE agents can prove a person is a drug addict, people aren’t always the smartest when it comes to addiction. ICE agents can come across evidence of drug addiction through a person’s posting on social media or admission through Drug Court programs.

 

Criminal Convictions

Under 8 U.S.C. 1182, a person is inadmissible if he or she is convicted of, admits committing, or admits committing the essential elements of a violation of (or a conspiracy or attempt to violate) any law relating to a controlled substance. There is a time-consuming waiver available only for cases involving less than 30 grams of marijuana.

There are a few major concerns with this ground of inadmissibility. First, a person does not need a conviction to be found inadmissible! Simply “admitting” to possessing drugs is grounds for inadmissibility. Second, the term “controlled substances” relates to federal, not state, law. Even though marijuana is now legal in a few states and countries around the world, it is still a Schedule I Controlled Substance under federal law. Third, this ground of inadmissibility involves actions “relating” to controlled substances; anything from drug paraphernalia to trafficking to drug money laundering could have severe immigration consequences.

For deportations, the law is somewhat different. In order to be deported for a drug-related crime, a person must have a conviction for an offense relating to a controlled substance as defined under federal law. There is also an exception for a single conviction involving possessing for one’s own use of 30 grams or less of marijuana. Convictions “relating to” a controlled substance include possession, trafficking, misbranding, adultering or selling. In addition, different states have different types of diversionary programs that may actually qualify as “convictions” under immigration law. Never assume that a dismissed or expunged charge won’t have lasting immigration consequences.

 

Drug Association

In some cases, a person does not need to admit to a crime or have a conviction to be considered inadmissible. One of the harshest provisions under immigration law relates to noncitizens and drug trafficking. The law punishes anyone even associated with drug trafficking activity or financial gains from either obtaining a visa or green card, or entering the United States at all.

Under 8 U.S.C. 1182(a)(2)(C), Any alien who the consular officer or the Attorney General knows or has reason to believe

(i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or

(ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity,

is inadmissible.

Thus, consular officers only need a “reason to believe” an immigration applicant is associated with drug activity or profits. Under this provision, immigration officials can use all sorts of evidence, including evidence from a criminal case that was dismissed, withdrawn or from which a noncitizen was found not guilty. The type of evidence is endless: family members’ association with drug gangs, financial records, fancy and high priced purchases, etc. This provision of the law punishes family members who turn a blind eye to drug trafficking activity.

 

Because of this highly complex area of law, it is important to retain the expertise of an immigration attorney. The attorneys at Skinner Law Firm can assist you if you have be charged with, accused of, or refused a visa anything relating to a controlled substance. Even if you cannot avoid a conviction, a carefully crafted case can preserve your immigration benefits and your future. Contact us today for a consultation.

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Lesser Known Consequences of Drug Convictions

 

DSC_0144

 

It is common knowledge that a conviction for a drug offense – even simple possession of marijuana – carries some type of penalty that limits freedom, such as incarceration or probation. However, a conviction for a drug offense may carry other lesser known penalties, some of which carry lifetime bans. Consider the following limitations placed on defendants with drug convictions:

Travel:

Even a simple possession of marijuana charge from your youthful years could affect any future international travel plans. Certain countries – including many Asian counties and Canada – treat drug and DUI convictions very seriously. In some cases, you will not be allowed to obtain a visa to enter. Even if you can obtain a visa and you try to enter one of these countries, you may be detained and deported. In other cases, your travel insurance may not cover such interruption due to a prior drug conviction.

 

Hefty Fines:

Although unlikely, certain drug convictions can carry a civil penalty of up to $250,000! Some fines may be doubled depending on certain aggravating factors of your case. You will be on the hook to pay off all fines and costs associated with your case. Money made from the sale of drugs will be confiscated and forfeited, so you won’t be able to use those funds to pay. Failure to pay could mean violation of the terms of your probation or parole. If your probation or parole expires and there are still fines and costs associated with your case, the balance may go to collections, thereby affecting your credit score.

 

Employment:

Some of the biggest nuisance categories for employment opportunities are alcohol, drug and sex-offense convictions. Depending on the type of job or license you wish to seek, you may be barred from consideration for a period of three years, five years or even permanently. Certain industries, such as banking and transportation, which are regulated by federal law, may prevent employment opportunities for drug convicts. In rare but serious circumstances, a person already employed who pleads guilty to a drug offense must be let go. In other particular categories, such as law enforcement or teaching, even after a time-barred period expires you may still have to prove rehabilitation in order to qualify. In addition, each branch of the military carries its own code regarding drug convictions, and the odds are always against convicted drug offenders.

 

License Suspension:

Alcohol and traffic offenses are not the only category of crimes that may suspend your license for up to a year. Most drug-related convictions carry some sort of license suspension. If caught driving while suspended, you may face a violation of any probation or parole and be subject to another one year suspension. Multiple driving while suspended tickets can deem a defendant a “repeat offender” and result in imprisonment of up to thirty (30) days.

 

Public Civil Service and Rights:

In Pennsylvania, if you are convicted of a felony drug offense, you will lose the right to own a firearm. There are severe penalties for felons unlawfully possessing firearms. You will also lose the right to vote while incarcerated and permanently lose the right to sit on a jury or hold public office.  While many people would rather not sit on a jury or vote/run for office, it is still a constitutional right you will forfeit upon a felony drug conviction. The only remedy is through a pardon.

 

Federal Benefits and Programs:

A drug conviction also affects everyday eligibility for federal benefits.  Certain benefits, such as student loans, Temporary Assistant to Needy Families (TANF) and Supplemental Nutrition Assistance Program (SNAP) and public housing, carry mandatory rules where a person convicted of a drug offense is ineligible for a period of years, or until successful rehabilitation has been proven. In rare cases with repeat offenders, a person may be permanently banned.

 

As shown above, drug convictions are very serious, and can affect even minimal aspects of life. It is very important to speak to an attorney before pleading guilty to any offense.

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Philadelphia’s New Marijuana Law: What Suburbanite Pennsylvanians Should Know

With the enactment of City Bill 140377-A[1] which took effect on October 20, 2014, Philadelphia is now one of the largest metropolitan jurisdictions to formally decriminalize small amounts of marijuana possession. In taking this step towards reformation of marijuana penalties, Philadelphia City Council follows the likes of Washington D.C. and other major cities which have aimed to decriminalize small marijuana use.

Under the new law, police will no longer be required to go through the formal procedures of arresting, booking, processing and fingerprinting suspects. Neither will police be required to take time out of their day to attend or testify at criminal proceedings. Such requirements not only consume time, money and public resources for such menial infractions, but also infringe on police efforts to fight greater crimes. Rather, the law mandates that individuals found in possession of less than thirty (30) grams of marijuana will be subject to a fine and possible community service. Such an offense will be treated as a “summary offense” and will not result in a criminal record under the Pennsylvania State Repository.

Pennsylvanians should be aware of the narrow legal effects of this bill. First and foremost, the new law only applies to Philadelphia County. The crime of “Possession of a Small Amount of Marijuana” (35 Pa.C.S. 78-113(a)(31)(i)) is still an arrestable offense in other parts of Pennsylvania, including the surrounding counties of Bucks, Montgomery, Delaware and Chester.  Individuals convicted of possessing a small amount of marijuana outside of Philadelphia County will have a misdemeanor criminal record, not merely a summary offense, and may be subject to an excessive fine and possible jail time.

Second, any amount of marijuana possession is still illegal under federal law. Although extremely rare and unlikely, an individual may still be arrested, charged and convicted of marijuana possession and prosecuted within Philadelphia under federal law. This irony cannot be underestimated: although the federal court sits within the confines of Philadelphia County, a “decriminalized” marijuana city, an individual charged with marijuana possession under federal law faces up to one-year incarceration and double the fines than under state law.

Marijuana reform is a rapidly expanding area of criminal law in many states, not just Pennsylvania. However, one area of marijuana reform that is not expanding is immigration law. The collateral consequences of a conviction for marijuana possession for non-U.S. citizens can have very serious consequences. Most importantly, a Pennsylvania conviction for a drug listed under the Controlled Substance Act (21 U.S.C. 1308, et. seq.) may result in deportation and permanent ban from the United States. As of 2014, the federal government still considers marijuana a Schedule I drug, which is in the same category as peyote, heroin, ecstasy, and LSD.  Fortunately, there is an exception under immigration law: a single conviction involving 30 grams or less of marijuana possession for personal use, is not a removable offense.

Each year, the discussion on decriminalization of marijuana laws gains more momentum. Consequently, each year more state and local legislators have made it a goal to enact legislation supporting this ideology.  If you have been charged with possession of marijuana and are concerned with any type of consequence, call (267) 388-3476 to speak with a qualified attorney.



[1] Full text available here.

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Consequences of Drug Trafficking Offenses: Pennsylvania’s Controlled Substance Forfeiture Act

Recently, the Philadelphia Inquirer published an article regarding the draconian forfeiture policies of the Philadelphia District Attorney’s Office.[1] The Sourovelis’ told the story of their son, who was caught selling just $40 of drugs outside the home he shared with his parents. Even after the crime and punishment had concluded, and even after their son began rehabilitation towards a new start, the Sourovelis were in for another shocking surprise: their family home was subject to civil forfeiture. Despite no evidence to show the Sourovelis knew or suspected anything about their sons’ misdeeds, they may lose their homes over their son’s sale of drugs.

Anyone charged or convicted of a drug trafficking offense in Pennsylvania may be subject to forfeiture of a variety of property. An acquittal, dismissal or admission into diversionary programs does not necessarily preclude the District Attorney’s Office from commencing forfeiture proceedings. Additionally, those who have knowledge of drug trafficking within the confines of their homes or vehicles may have to forfeit this personal property. In a forfeiture proceeding, the District Attorney must prove a sufficient “nexus” exists between the property seized and the illegal drug trafficking offense. Mere circumstantial evidence can be sufficient to prove this nexus exists. The District Attorney also has the burden of proof to show that items seized and forfeited are “more likely than not” associated with drug trafficking. Not only is this burden less than that of a criminal trial’s “beyond a reasonable doubt” standard, it does not afford all the same rights and protections of the criminal trial itself.

Once drugs and contraband are seized as a result of a drug trafficking charge or conviction, these items are unquestionably non-returnable. This includes manufacturing equipment and paraphernalia. However, if the District Attorney believes other property is associated with the commission or facilitation of a drug trafficking offense, they may seek forfeiture of any and all legally owned firearms, money (loose or bundled), ledgers, books, motor vehicles, and even real estate.[2] This may include less-thought of items such as cellular phones, cameras, bank accounts and even children’s property. Just as in the Sourovelis’ case, anyone engaged in the commission or facilitation of drug trafficking may cause others to lose family homes, regardless of the quantity or type of drugs involved.

Originally intended to protect against violent drug traffickers, whose homes and vehicles were plagued with illegal drugs, guns and paraphernalia, the power and harshness of Pennsylvania’s Controlled Substance Forfeiture Act cannot be underestimated. If you have been charged with a drug trafficking offense and are concerned with forfeiture of property which may not be related to the crime at hand, be sure to consult with an attorney.

Legal Disclaimer: This post is not to be construed as giving legal advice by any member of Skinner Law Firm. LLC, nor it is intended to form an attorney-client relationship.  All information is solely informative.



[2] 42 Pa.C.S.A. § 6801, et seq.

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Chester County Defense Attorney Discusses State Taxpayer Money Spent on Keeping Non-Violent Inmates Incarcerated

 

New statistics regarding money spent on the Pennsylvania Corrections System were recently released, and unsurprisingly, they highlight some major issues with how the system operates. The most worrisome number mentioned by The Council of State Governments Justice Center, is the $49 million in taxpayer money used in 2010 to house non-violent offenders beyond the minimum release dates for misdemeanors and minor felonies.

Seeing a huge number like this goes a long way in showing that Pennsylvania’s corrections system is flawed. It shows that mandatory minimum sentencing and the punitive nature of Pennsylvania non-violent convictions must be revised. It is counterproductive for the state to continue unnecessarily spending millions of public dollars imprisoning individuals who would be much better served by reducing their sentences through the use of rehabilitative programs, drug diversion or probation. In these cases, the offender can learn from the situation and grow, as opposed to rotting in a cell,  likely lowering the cost and overpopulation burden the state carries.

As for the corrections system currently in place, consultants from the Justice Center have found that individuals convicted of non-violent crimes requiring minimum sentences are not even given the opportunity to meet conditions for early release. In fact, the most common reason for denying inmates’ parole during the past two years was failure to participate in or complete institutional programming such as education programs and drug treatment. The problem with this is that three-quarters of inmates with a minimum sentence of a year or less cannot complete the programs to get out by then due to how Pennsylvania prisons operate.

Law enforcement, prison officials and prisoners alike would benefit if non-violent criminals had the opportunity to satisfy their requirements by getting into programs quickly so they can rehabilitate while in jail, as opposed to simply waiting out the sentence and using up valuable resources. The Justice Center also found that the state’s programs designed to reward inmates for good behavior have been backlogged.

Fortunately, after the release of these numbers, some Pennsylvania policymakers are taking notice and considering a bill that would keep nonviolent offenders from going to state prison. Considering the state’s prison population has increased from 7,000 in 1980 to 51,645 today, this is a massive problem that has strained state resources by leaving a large proportion of low risk inmates without any options to remedy the situation because of their mandatory minimum sentences.

The majority of the blame for the large rise in prison population is not more violence or crime; it is simply due to the mandatory minimum sentencing laws enacted in the 70’s and 80’s. Requiring an individual to serve a minimum sentence lumps many offenders into broad categories, as opposed to judging their crimes individually, as should be the case.

Arising from good intentions, with a goal of searching for a more efficient way to tackle the criminal process, mandatory minimums have only helped to exacerbate the problems of unfair judgments and prison overpopulation. Judicial discretion that would have normally allowed for leniency or different punishments is thrown out the window when it comes to minimum sentencing, which has an adverse effect on the ability for a Pennsylvania criminal defense attorney to defend an individual for the crimes they committed. Personal situations are also not taken into account as these stringent guidelines are followed. This gives many otherwise productive members of society who have committed minor offenses a disproportionately harsh sentence.

With the problems we are having with regard to funding our federal and state governments, we should be taking a pragmatic and rational approach to analyzing the state of affairs in the Pennsylvania legal system, while also focusing on problems that are solvable, like changing mandatory sentencing laws and introducing diversionary programs for non-violent offenders. This will free up public funds and lower prison populations, while allowing low risk offenders to rehabilitate and become productive members of society.

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Marijuana Usage among High School Seniors Reaches 30 Year Record “High;” West Chester Marijuana Crimes Attorney Michael Skinner Discusses Trend and Pennsylvania Marijuana Laws

According to the 2011 Monitoring the Future Survey (MTF) released last week by the National Institute on Drug Abuse, marijuana usage among the nation’s high school teens has steadily increased over the past four years, with high school seniors hitting a 30 year record peak in 2011.  The findings come as a result after surveying 46,733 students at 400 public and private schools in the 8th, 10th, and 12th grades.  The study reported 50 percent of high school seniors having tried an illicit drug at some time, with this number being heavily influenced by the high amount of reported marijuana use.

More information specific for juvenile Pennsylvania marijuana crimes will be released later this spring when the Pennsylvania Youth Survey statistics are released.  Possession of marijuana in Pennsylvania is the most common marijuana related crime in the state, accounting for 79% of all marijuana related arrests in Pennsylvania during 2007.  Penalties associated with illegal possession of marijuana in Pennsylvania depend on several factors including the amount of marijuana found in possession, criminal history of the arrested person and whether that person had a “conscious dominion over the contraband.”

Commonwealth v. Davis, 444 Pa. 11 (1971) established that just simply being present at the scene of a crime involving a person or group of people in possession of marijuana does not provide sufficient evidence of proof that one has committed that crime; and therefore, a person cannot be held accountable for possession if that person does not have “conscious dominion over the contraband.”  Many states have similar “I didn’t know” laws but there are also limits to these such laws.  For instance, the fact of possession loses all persuasiveness if persons other than the accused had equal access to the drug.

Common punishments for Pennsylvania possession of marijuana charges heavily depend on the amount of drugs found.  The least serious being possession of 30 grams of Marijuana or less which Pennsylvania considers a misdemeanor crime punishable by up to 30 days in jail and a fine of up to $500.  A person accused of possession of Marijuana with more than 30 grams is also still a misdemeanor but punishable by one year in jail and a fine of up to $5,000.  The more marijuana a person has in their possession and that is ultimately seized by authorities, the more susceptible a person also becomes to other charges such as intent to distribution or sale marijuana, which can have even greater penalties with more serious lasting effects.

Discrepancies and complexities associated with Georgia’s marijuana laws including possession of marijuana in Lancaster or Cultivation of Marijuana in West Chester can work for or against an individual arrested in Pennsylvania for a marijuana related crime.  It’s important to speak with a lawyer in your area about the specific details of your case if you have been arrested for a marijuana crime.  Hiring an attorney to create a defense for your case might ultimately help you avoid harsh repercussions such as a criminal record, large fines, difficulties getting the job you want due to commonly used background checks and youths accused of marijuana crimes may avoid problems gaining school loans and/or scholarships as well as other tuition assistance for higher education.

Chester County marijuana lawyer Michael Skinner represents men, women and minors accused of all types of Pennsylvania marijuana related crimes including possession of marijuana, marijuana trafficking in Pennsylvania and cultivation/grow house crimes throughout West Chester and surrounding areas within Chester County, Delaware County, Lancaster County and Montgomery County.  Call (267) 388-3476 to schedule a free consultation with West Chester criminal defense attorney Michael skinner.  The sooner you react to the charges against you, the better your chances become at fighting and having a strong enough defense to challenge the prosecutions efforts to penalize you with the harshest punishments.  Call Michael Skinner at Skinner Law Firm today.

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