Archive for the ‘Uncategorized’ Category

Spotlight Issue: What does the legalization of medical marijuana mean for DUI law in Berks County?

Friday, July 27th, 2018

Pennsylvania legalized marijuana for limited medical purposes in August of 2016 and dispensaries are now operating. Although the law has been passed, there is still much work to be done in order to implement the program and to ensure that medical marijuana usage is legal and safe. One area in which there is a still a question about the legality of medical marijuana is Pennsylvania DUI law. Currently, marijuana is classified as a schedule I drug which means that it has been determined to have no legitimate medical usage. Obviously that is no longer an appropriate classification based on the current law. However, the outdated classification continues to leave Pennsylvania DUI law in limbo.

Section 3802(d) of the Pennsylvania DUI code criminalizes driving with any amount of a Schedule I drug or the metabolite of any Schedule I drug in the driver’s blood. There is no requirement that there be evidence of impairment for a conviction under this section – but evidence of impairment is required for other sections. Of course police cannot test a driver’s blood without a sufficient basis to believe that he or she is driving under the influence of drugs or alcohol, but as long as that standard is met, the mere presence of marijuana or its metabolite is sufficient for a DUI conviction (amount in the blood must exceed 1ng/ml for tests results to be admissible in court). Notably, there is no exception made for those drivers who are legally prescribed medical marijuana. Compare this to a legal prescription for a medicine such as Xanax. The mere presence of Xanax in a driver’s blood is not a crime. Instead, there must be evidence that the driver is impaired because of the medication. Arguably, that is how medical marijuana should be treated as well.

Pennsylvania State Police have publicly raised this discrepancy, but Pennsylvania lawmakers have yet to act. This area of the law will undoubtedly change at some point, but it may be too late for some drivers. Conviction for a first offense under 3802(d) – a controlled substance DUI – is a mandatory 72 hours of incarceration.

If you’ve been charged with a DUI in Berks County, especially if that DUI involves driving with THC in your blood while you had a valid prescription for medical marijuana, you need to consult with a knowledgeable DUI attorney to discuss your options. Contact our Reading, DUI lawyers at 610-372-5128 or email us at info@enmlaw.com.

Spotlight Issue: Loss of driver’s license for driving with suspended registration

Tuesday, July 3rd, 2018

In Pennsylvania, many motor vehicle offenses result in a driver’s license suspension that isn’t immediately apparent to the driver. One such offense is driving a vehicle with a suspended registration. Vehicle registration can be suspended for 3 reasons – lapse in insurance coverage, as the result of a citation or accident, or because of unpaid Turnpike tolls. Most suspensions are for 3 months. Appeals of a PennDot license suspension must be filed within 30 days of the date that the suspension notice is mailed. The appeal is heard by the Court of Common Pleas. Registration suspension can often be ended immediately by providing proof of insurance coverage and paying a large fine. Once a vehicle’s registration is suspended, if the car is driven by the owner, or with permission of the owner, the owner can be charged with violating 75 Pa. C.S. 1371. The criminal penalty for this offense is only a fine of $100 – $500 and it is handled in front of a Magisterial District Judge. But, a conviction will result in a separate and automatic 3-month driver’s license suspension by PennDot. This may be an unexpected consequence for many people who have pled guilty to the traffic ticket.

A client recently came to our office after pleading guilty to driving her vehicle when the registration was suspended. She was not represented by an attorney at that time. After her conviction, this client received a notice of a 3-month license suspension from PennDot. Aside from the difficulties associated with any license suspension, this client was in the process of obtaining a new job and needed a valid license to be hired. She came to our office for help. Attorney McAllister filed a timely Notice of Appeal. Any summary conviction in front of a Berks County Magisterial District Judge can be appealed to the Court of Common Pleas in Reading, PA. Attorney McAllister brought with him to that hearing evidence that the client was not aware that her registration was suspended and proof that she had restored her registration on the same day that she received the traffic citation. Attorney McAllister was able to negotiate with the Assistant District Attorney and his client was allowed to plead guilty to a different offense that did not result in a license suspension. This client’s job was no longer in jeopardy.

If you’ve been charged with driving a vehicle with a suspended registration, or any other traffic citation in Berks County, contact our experienced criminal law attorneys. Even though you think that the citation will only result in a fine, there could be more serious consequences that will surprise you. Call us at 610-372-5128 or email at info@enmlaw.com.

ENM Law News: Recent Berks County custody cases

Monday, June 25th, 2018

Berks County custody cases often all follow a similar path. But sometimes a client comes to our office with an unusual set a circumstances and we have to think outside the box and act quickly. Here are details of two such Berks County custody cases that Attorney McAllister handled recently.

A father came into our office with concerns that his child’s mother was going to move to a different part of the country with the child. There was not a custody order in place. Attorney McAllister acted fast to prepare the case and was able to serve the mother with paperwork within 2 days of meeting the client. This quick turnaround is important because at the point that she was served, the mother was put on notice that there was a pending custody action. At the emergency custody hearing, Attorney McAllister asked the judge to issue a Writ of Nea Exeat which would prevent the mother from leaving Berks County. The judge agreed with Attorney McAllister’s argument and ordered the mother to keep the child in Berks County pending the custody case. Attorney McAllister was also able to secure partial physical custody rights for his client while the case proceeds through the normal custody process.

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The story of the next client began years before she came into our office. When the client’s child was very young, she moved out of Pennsylvania. Prior to her move, the father of the child filed a custody action in Berks County and the judge ordered that our client not leave Pennsylvania with the child. BUT, our client was never served with any of the paperwork relating to the custody case or the judge’s order. Years later, criminal charges were filed against our client for removing the child from Pennsylvania in violation of the court order and she was extradited back. The child was given to the father. Our client went 1 ½ months without seeing her child. After that, she came to our office and Attorney McAllister took her case. He filed for an emergency hearing and asked the judge to return the child to the mother. Attorney McAllister argued that the client was never given notice of the court order entered years ago and that it was in the best interest of the child to go back to the mother because the child had not had a relationship with the father. The judge agreed and granted our client primary physical custody of the child pending an outcome in the custody case. The child was returned to our client immediately after court.

A skilled attorney is always helpful in a Berks County custody case, but that is especially true when there are unusual circumstances. If you are facing the possibility of custody litigation, contact our experienced Reading, PA family law attorneys at 610-372-5128 or info@enmlaw.com.

ENM Law News: Client found “not guilty” of ICC charge

Tuesday, May 29th, 2018

While a Protection from Abuse matter in Pennsylvania is a civil matter, a violation of the PFA becomes a criminal charge called Indirect Criminal Contempt (ICC). Defendants in Berks County are scheduled for ICC court and a hearing is held to determine whether the PFA was violated. An ICC charge carries a maximum permissible sentence of 6 months of incarceration and a $1,000 fine. A PFA doesn’t result in a criminal record but a conviction for ICC does and shouldn’t be taken lightly.

Attorney McAllister was recently hired to represent an ICC defendant who also had immigration concerns. The non-citizen client was detained by Immigration and was facing a conviction for a deportable offense. Immigration law states that a non-citizen is deportable when convicted of violating a domestic violence protective order. Because of these immigration consequences, the stakes were even higher for this client and he decided to proceed with an ICC hearing.

At the ICC hearing, the Commonwealth argued that the client violated the PFA by calling out to the Plaintiff by her name within minutes of being informed of the no-contact restrictions in the PFA. Attorney McAllister argued that the client did not have proper notice of the order (a requirement for conviction) because he did not have sufficient time to read and understand the PFA order he had just been served with. Attorney McAllister also argued that the contact was de minimus and was not sufficient to be the basis of a violation. The Berks County ICC judge agreed with these arguments and found the client “not guilty” of violating the PFA. Not only did the client avoid a jail sentence and fine, he also avoided being deported based on an ICC conviction.

If you’ve been charged with violating a PFA in Berks County, contact our knowledgeable criminal defense attorneys at 610-373-5128 or info@enmlaw.com.

Spotlight Issue: Kutztown University student found “not guilty” of underage drinking charge

Tuesday, May 22nd, 2018

While underage drinking may not seem like a decision that will have long term consequences, many Berks County college students find out the hard way that the penalties can be stiff. While it is most commonly referred to as the underage drinking law, the law in Pennsylvania penalizes more than just the consumption of alcohol by a person under the age of 21. In Pennsylvania it is illegal for a person under the age of 21 to attempt to purchase as well as to purchase, consume, possess or knowingly and intentionally transport liquor or malt or brewed beverages. The punishment for violating the underage drinking law is a fine and a driver’s license suspension. For a first offense underage drinking charge in Berks County, a fine of up to $500 is permitted and a 90 day license suspension is required. A second conviction for underage drinking involves a penalty of a fine not to exceed $1,000 and a 1 year license suspension. Third and subsequent offenses subject the defendant to a fine of up to $1,000 and a 2 year license suspension.

Attorney Dan Nevins recently represented a Kutztown University student charged with violating the underage drinking law. This client was charged for being the driver of a car which contained passengers over the age of 21 who were transporting a keg. There was also a bottle of liquor in the car that the client was accused of possessing. After consultation with Attorney Nevins, this client decided to proceed to a hearing in front of the Magisterial District Judge and Attorney Nevins convinced the Court that the client was not guilty of the charges. Because this Kutztown University client had previously been convicted of violating the underage drinking law, a finding of guilt would have resulted in a $1,000 fine and a 1 year driver’s license suspension. Thanks to the efforts of Attorney Nevins, our client walked away without any penalty.

If you’re a Kutztown University student who has been charged with violating the underage drinking law, contact our experienced Berks County criminal defense attorneys to discuss your options. Call us at 610-372-5128 or email at info@enmlaw.com.

Spotlight Issue: DUS Intermediate Punishment (DUS/IPP)

Friday, April 27th, 2018

Getting caught driving with a suspended license in Berks County usually results in a fine and additional license suspension (read more about 1543(a) violations here), but make the same mistake with a DUI suspended license and you’re looking at a mandatory jail sentence. If you’re facing the possibility of jail time for a 1543(b) charge (driving with a DUI suspended license), you need to consider the option of DUS/IPP (driving under suspension/intermediate punishment program). Here’s what you need to know.

First, when is a Pennsylvania driver’s license considered DUI suspended? Your license will of course fall into this category during the period of time it is suspended according to your criminal sentence or PennDot. BUT, even if your original period of suspension has passed, if you have not paid the $25 restoration fee and had your physical license returned to you, it is still considered suspended as the result of a DUI even after that initial court-ordered period has passed.

So, what’s the difference in penalties between driving with a regular suspended license (1543(a)) and a DUI suspended license (1543(b))? A 1543(a) violation generally carries a penalty of a $200 fine and an additional license suspension. A 1543(b) violation, on the other hand, carries a mandatory minimum jail sentence of 60-90 days and a $500 fine.

A jail sentence of even 60 days can be disastrous for many clients. Luckily, there is another option: DUS/IPP. Because a 1543(b) charge is a summary offense, the case will initially be handled by a magisterial district judge. In order to apply for the DUS/IPP program, a defendant is required to plead guilty in front of the MDJ and contact Berks County Adult Probation within 3 days of that plea to schedule an evaluation.

One of the first steps of Berks County DUS/IPP is the drug and alcohol evaluation. That will determine what type of treatment will be required for each individual participant. All participants are also required to complete community service and pay the $500 fine. Once a DUS/IPP sentence has been approved by the probation officer and the district attorney’s office, a defendant will be sentenced to 5 days of incarceration and 85 days of house arrest. House arrest requires electronic monitoring which must be paid for by the defendant at a cost of approximately $8/day. The money must be paid upfront. Credit towards the 85 days of house arrest can be given for inpatient drug and alcohol treatment or participation in a halfway house program.

While it may seem daunting to contemplate completing all of these steps, the significant reduction in a jail sentence as a result of completing DUS/IPP is worth it to many defendants. Not all DUS defendants are eligible for this program,so your attorney can review your criminal history with you to see whether you are able to apply. Because of the deadlines for applying for DUS/IPP, it is very important that you have a knowledgeable Reading, PA criminal defense attorney with you at your first appearance in front of the magisterial district judge to help you follow the applications steps correctly.

If you’ve been charged with driving with a DUI suspended license, call our Berks County DUI attorneys to see whether you may be eligible for a reduction in jail time. Call us at 610-372-5128 or email us at info@enmlaw.com.

Spotlight Issue: Negotiated dismissals – Rules 546 and 586

Tuesday, March 27th, 2018

If you’ve been charged with a crime in Berks County and part of the charge contains an allegation that you owe something to someone else (usually money), your attorney may be able to negotiate a dismissal upon satisfaction being made to the aggrieved party. This type of disposition is pursuant to Rule 586 (in front of the Court of Common Pleas), Rule 546 (in front of a magisterial district judge) or Rule 458 (dismissal of a summary offense).

This type of dismissal is not available in every case. Namely, Rule 586 only applies to charges that do not involve allegations of force or violence or threats thereof and Rule 546 only applies to misdemeanor and associated summary offenses. There are 4 additional requirements that must be met before a charge can be dismissed under these rules.

1 – the judge must find that the public interest will not be adversely affected
2 – the attorney for the Commonwealth (or the affiant if no attorney is present) must agree to the
dismissal
3 – satisfaction has been made to the aggrieved person or there is an agreement that
satisfaction will be made
4 – there is an agreement as to who will pay costs

Although these rules do not only apply to monetary crimes, that is often how they are applied. They are most commonly used in theft and fraud cases. A dismissal under these rules is very beneficial to defendants because no guilty plea is required and the dismissal happens much faster than in an Accelerated Rehabilitative Disposition (ARD) case.

Attorney McAllister recently represented a client in Reading Central Court who was charged with welfare fraud, a misdemeanor offense. This client was accused of receiving $1,800 in benefits that the client was not entitled to. A conviction for a fraud crime can have an extremely negative impact on a person’s ability to get a job, a loan or housing. Attorney McAllister was able to negotiate with the attorney for the Commonwealth and reach an agreement that the welfare fraud charge would be dismissed upon payment of the $1,800. The payment was made and the misdemeanor charge was dismissed pursuant to Rule 546 in front of a magisterial district judge.

If you’ve been charged with a theft or fraud crime and think that a Rule 586, Rule 546 or Rule 458 dismissal might be beneficial in your case, contact our knowledgeable Reading, PA criminal law attorneys at 610-372-5128 or email us at info@enmlaw.com.

Spotlight Issue: Unemployment compensation hearings

Friday, February 23rd, 2018

If you’ve been fired from your job in Berks County, PA, what should be your first step to secure a source of income? You must file for unemployment compensation. As long as you meet the eligibility requirements, you will receive payments.

There are two requirements to be eligible 1) you must have earned enough wages AND 2) the reason you aren’t working must not be the result of your own actions – generally this means that you were terminated for a reason OTHER THAN wilful misconduct – usually you are not eligible if you quit your job, but there are exceptions to this rule such as quitting as a result of harassment.

After you have filed for unemployment compensation, you will receive a notice from the Office of Employment Security notifying you whether or not you have met the eligibility requirements. If you are denied benefits, you can appeal the decision. Conversely, if you are granted benefits, your employer can appeal the decision. Under either circumstance, the appeal MUST be filed within 15 days of the mailing of the notice.

Appeal hearings are scheduled in front of a Referee. At that hearing, you will be expected to present evidence and cross-examine witnesses. If you were fired then your employer has the burden of proving that you were terminated because of your own wilful misconduct. If you quit then you have the burden of proving that you had a necessitous and compelling reason.

The good news is that you don’t have to handle this on your own. You should hire an experienced unemployment compensation attorney to guide you through the process and give you the best chance of success at your hearing. Contact our Reading, PA unemployment compensation appeal attorneys at 610-372-5128 or info@enmlaw.com.

ENM Law News: Unemployment compensation appeal win

Friday, February 23rd, 2018

After being terminated from a job and denied unemployment compensation, a recent client came to ENM Law for advice. The client’s former employer reported that the client didn’t follow proper procedures for calling off of work and eventually quit. Our client denied these claims of wilful misconduct. Attorney McAllister filed an appeal of the denial of compensation before the 15 day appeal period expired and the matter was scheduled for a hearing in front of an Unemployment Compensation Appeal Referee. This hearing was the client’s only chance to present evidence to the Referee to establish why the denial of compensation should be reversed. A hearing often includes presenting witnesses and documents to support the request for reversal. Here, Attorney McAllister helped his client testify about the relevant evidence and the Referee reversed the decision.

Thanks to the hard work of Attorney McAllister, our client walked away with full unemployment compensation benefits.

If you’ve been denied unemployment compensation in Berks County, contact our knowledgeable Reading, PA unemployment benefits attorneys before you run out of time to file an appeal. Call us at 610-372-5128 or email at info@enmlaw.com.

Spotlight Issue: Social media and family law

Tuesday, January 30th, 2018

You may not realize the significance of social media posts in your Berks County family law case until it is too late. For that reason, think before you post! Having a social media presence is expected and common these days, but when you’re embroiled in a contentious custody, divorce or support case, what you post on Facebook, Twitter or any of the other sites, could negatively impact your chances of success.

Let’s examine some possible scenarios.

You’ve made an argument in domestic relations that your support obligation should be reduced because your hours were cut at work. But, the week before your modification hearing, you post pictures on Facebook of the new vehicle that you just purchased. The attorney for your ex brings those pictures to the conference officer’s attention and argues at the conference that your support obligation shouldn’t be reduced because there obviously hasn’t been a significant change in your circumstances. The conference officer agrees and recommends to the judge that the support order not be amended.

You’ve filed a petition asking the court to grant you more custodial time with you children. However, the last 3 weekends that you’ve had your children, you hired a babysitter to stay with them and went out with your friends. You also posted pictures on Instagram while you were out. The attorney for your ex brings those pictures to court and argues that you aren’t taking advantage of the time that you currently have with your children and that modifying the custody schedule would not be in the best interest of your children. The judge denies your modification request.

You’re in the middle of a difficult divorce and negotiations have been ongoing. Your attorney tells you that you are finally getting close to a resolution and it looks like you’re going to end up keeping the marital residence, which is what you really want. Late at night you decide to write a tweet talking about karma which is obviously about your ex even though you don’t mention any names. You get a call from your attorney the next day that the deal is off.

How can you prevent the above situations from happening? Well, aside from the obvious answer of not making the posts in the first place, we have a couple of tips to keep in mind. Be sure that all of your social media accounts have high “privacy” settings so that strangers can’t access your pages. Remember that social media posts and text messages are very easily preserved and can be used against you in court. Be aware that social media posts can inflame emotions and make negotiations in Berks County family law cases more difficult. If you’re questioning whether it’s a good idea to post something, it probably isn’t.

The scenarios we’ve discussed may seem extreme and obvious, but similar situations are not uncommon and it’s important to think about how something you post on social media could affect your own case. If you’re already involved with divorce, support or custody case in Reading, PA or are about to be, it’s important for you to have a Berks County family law attorney who pays attention to the details of your case. Contact our knowledgeable attorneys at 610-372-5128 or email us at info@enmlaw.com.