Archive for the ‘Uncategorized’ Category

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.

Spotlight Issue: New tax law will affect alimony deduction

Saturday, January 6th, 2018

The new tax law makes many changes to the existing tax structure, but for our purposes we will only discuss the one which clearly impacts Berks County family law clients: the removal of the alimony deduction.

Alimony is a regular payment made to a spouse during the pendency of a divorce (alimony pendente lite) or a payment scheduled put in place after a divorce is finalized. Alimony can be part of a prenuptial agreement or a marriage settlement agreement or it can be ordered by a judge following a hearing. The purpose of both types of alimony is to place spouses on equal financial footing for some period of time. The amount of alimony pendente lite is generally determined by statutory guidelines, just as with child support. Alimony, on the other hand, is a discretionary award and the court uses statutory factors to determine the amount. The amount of time that alimony will be paid is also determined by the court. Some relevant factors considered by the court in determining amount and length of time for payments are length of marriage, earning capacity of each party, assets of each party and the degree to which one spouse has contributed to the education and career of the other spouse.

So, while there are a variety of factors that determine amount of alimony and alimony pendente lite awards, all payors and payees followed the same tax rules regarding these payments: recipients included the payments as income and payers could claim the money as a deduction. However, for all divorces commenced after December 31, 2018, these tax rules will cease to exist. The person paying alimony can no longer claim it as a deduction and the person receiving alimony will no longer need to include it as income. This change will not affect anyone with a current alimony award. This will bring the the tax rules for alimony in line with the rules for child support although the discretionary aspect of alimony prevents the two forms of support from being equal.

Some experts fear that the loss of a deduction for the person paying the alimony will lead to a reduction in agreed upon alimony awards. Only time will tell whether or not that is the case. However, this is certainly something that should be discussed with your divorce attorney and it will undoubtedly become a more pressing issue as the December 31, 2018, deadline gets closer.

If you have questions about how the new tax law could affect your Berks County divorce case, contact our knowledgeable Reading, PA divorce attorneys at 610-372-5128 or info@enmlaw.com.

ENM Law News: “Not guilty” verdict in Homicide trial

Wednesday, December 27th, 2017

A criminal case can’t get much more serious than a murder charge and not all attorneys are capable of handling this type of case. However, when Attorney Nevins was given the responsibility of representing a client accused of criminal homicide in Reading, PA, he knew that he was up to the challenge.

Our client was charged with fatally shooting a man during the early morning hours of June 4, 2016. Video from the incident showed that the decedent was the initial aggressor and that our client backed away. The decedent went for his waistband, but came away with nothing. At the same time, our client drew his legally possessed weapon and pointed it as the decedent advanced seven steps towards our client. Our client fired one shot. After interviewing our client, the police reviewed surveillance footage and because there was a discrepancy between our client’s report and the video, the police filed a homicide charge. Because of the nature of the charge, our client was denied bail pending trial.

After consultation with his client, Attorney Nevins decided that the argument at trial would be one of justification: that our client was justified in using deadly force in defense of himself. In preparation for trial, Attorney Nevins filed a motion in front of the judge asking that he be allowed to present evidence of the decedent’s gang affiliation as well as history as a domestic abuser. This type of evidence is permitted at trial only under narrow circumstances. In a major win for the defense, the judge granted Attorney Nevins’ motion and this important evidence was heard by the jury. In addition, Attorney Nevins was permitted to present testimony of our client’s former service in the Marines. Ultimately, Attorney Nevins was able to convince the jury that our client acted reasonably in defending himself with deadly force. The jury found our client “not guilty” and he was released after spending almost a 1 ½ years in Berks County Prison while awaiting his day in court.

While you may not need help with a homicide charge, you want to be represented by a Reading, PA criminal law attorney who knows how to represent a client against the most serious of charges. If you’ve been charged with a crime in Berks County, contact our knowledgeable criminal attorneys at 610-372-5128 or info@enmlaw.com.

ENM Law News: Felony Burglary charge dismissed at preliminary hearing

Sunday, December 17th, 2017

Usually, a Reading, PA attorney’s first chance to make a difference in your criminal case is at the preliminary hearing. The Commonwealth has to present evidence of a prima facie case in order for the charges to be bound over to the Berks County Court of Common Pleas. All preliminary hearings for cases within the City of Reading are held on Fridays in Reading Central Court (read more about preliminary hearings and RCC here). A preliminary hearing is the first time that your attorney can hear the evidence against you and test the Commonwealth’s witnesses. The best case scenario is that the case is dismissed at the preliminary hearing.

Attorney McAllister recently had one of those “best case scenarios.” Attorney McAllister’s client was charged with Burglary of an Unoccupied Structure, a felony of the second degree, along with associated theft charges. The Burglary charge carried a maximum permissible sentence of 10 years of incarceration and a $25,000 fine. Further, this client was committed to Berks County Prison and remained incarcerated pending his preliminary hearing. Obviously, this client was facing a very difficult situation.

The Commonwealth’s case was based on the statement of a witness who told police that our client admitted to burglarizing a storage unit. Attorney McAllister saw an opportunity to attack the witness’s credibility and version of events and insisted on a hearing in Reading Central Court. As Attorney McAllister expected, the Commonwealth’s witness fell apart on the stand and was unable to implicate our client in the crime. His story crumbled further under cross-examination by Attorney McAllister. The Magisterial District Judge could only rely on the witness’s statement in court and granted Attorney McAllister’s request to dismiss all of the charges.

If you’ve been charged with a crime in Reading, PA, call our experienced preliminary hearing attorneys to discuss the best way to handle your case. Contact us at 610-372-5128 or info@enmlaw.com.