Archive for the ‘Uncategorized’ Category

ENM Law News: Terorristic Threats charge dismissed at preliminary hearing

Thursday, October 19th, 2017

A client recently came to Attorney McAllister looking for help after a fight with a roommate. Our client had been charged with Terroristic Threats and his preliminary hearing was scheduled to be heard in Reading Central Court (read more about RCC here). The roommate testified that our client threatened to shoot him. The roommate admitted that he had never seen our client with a gun. While not denying the statement, Attorney McAllister argued to the magisterial district judge that it didn’t constitute a Terroristic Threat. Confused by how that can be true? Luckily, Attorney McAllister isn’t!

Pennsylvania law requires that in order for a threat to constitute a Terroristic Threat, it must be made with the intent to terrorize, or with reckless disregard that it will cause terror. Pennsylvania courts have decided that this definition does not include statements made with transitory anger (i.e., speaker didn’t intend to carry out the threat and didn’t have reason to believe that the statement would make you believe that he was going to).

In our case, Attorney McAllister argued that because our client didn’t have a gun and his roommate knew that he didn’t have a gun, there was never an intent to terrorize with the statement and no reason for the roommate to believe that he was going to follow through on the threat. The magisterial district judge dismissed the Terroristic Threats charge against our client and he was no longer facing 5 years incarceration and a $10,000 fine. If you’ve been charged with a Terroristic Threats case in Berks County, contact our knowledgeable criminal defense attorneys at 610-372-5128 or info@enmlaw.com.

ENM Law News: 2008 ICC charge dismissed for lack of service

Thursday, October 19th, 2017

What happens when there is an alleged violation of a civil Protection from Abuse order (PFA)? The alleged violation results in an Indirect Criminal Contempt charge (ICC). This is a criminal charge which can result in a jail sentence of up to 6 months and a $1,000 fine.

A client recently came to us because of a 2008 warrant for Simple Assault and ICC charges in Berks County. Back in 2008 this client was charged with Simple Assault and Terroristic Threats against his girlfriend and violating a PFA which was granted on the girlfriend’s behalf. The client left town without dealing with the charges and warrants were issued for his failure to appear. The client had no dealings with police or issues with the warrants until a couple of months ago when he attempted to update his immigration status and learned about the warrants. He was ineligible for a change in his immigration status while the criminal cases remained on his record so the client hired Berks County criminal law attorney Attorney Nevins to help him.

Attorney Nevins first brought the client into court to address the outstanding warrants. Once that was done, the preliminary hearing for the Simple Assault and Terroristic Threats charges was rescheduled. Attorney Nevins appeared on the client’s behalf and the charges were dismissed because the alleged victim from 2008 did not want to testify. Attorney Nevins then appeared in PFA court to represent the client for the ICC. Attorney Nevins was told that the alleged victim did want to testify for the ICC hearing. Upon reviewing the evidence against his client, Attorney Nevins noted that the client had not been properly served with the PFA back in 2008. Service of the PFA is a necessary element that the Commonwealth must prove before a defendant can be convicted of ICC. Attorney Nevins took this discovery to the Assistant District Attorney assigned to the case and convinced him to withdraw the charge.

Thanks to the hard work and attentiveness of Attorney Nevings, this client was able to leave Reading with no criminal convictions. Attorney Nevins has filed to expunge the criminal charges so that his client can move forward with his attempts to change his immigration status.

If you have a warrant for an old criminal case in Berks County or if you’ve been charged with an ICC charge for violating a PFA, contact our knowledgeable criminal law attorneys at 610-372-5128 or email us at info@enmlaw.com.

Spotlight Issue: DUI law update – ignition interlock limited license

Wednesday, September 27th, 2017

A law passed in 2016 changing the requirement for ignition interlock is now in effect as of August 25, 2017. What does Act 33 of 2016 mean for people convicted of DUI in Berks County? Let’s review what the law was prior to August 25th.

Under the old law, a person who was convicted of a first-offense DUI which carried a license suspension was usually eligible for an Occupational Limited License (OLL) after a certain period of the suspension had passed. This type of license (sometimes called a “bread and butter” license) allowed first-time DUI offenders to drive for limited purposes, including work and medical appointments. DUI ARD defendants were not (and still are not) eligible to receive OLL’s during their license suspension period. DUI offenders convicted of a second or subsequent DUI within 10 years were required to install the ignition interlock for a period of time after their driving privileges were restored. First time DUI offenders were never required to install ignition interlock.

So what has changed? First, DUI offenders are, for the most part, no longer eligible to receive OLL’s during their DUI suspension. This is also the case for DUI offenders with a separate suspension for refusing to submit to chemical testing under §1547. Second, all DUI offenders, except those in the ARD program and those charged with first offense general impairment (BAC below .08) are now required to have an ignition interlock installed in their vehicle for at least 1 year. During that time with the ignition interlock, the DUI offender is given an “ignition interlock limited license” which permits them to drive as long as the vehicle they are driving has been equipped with an approved ignition interlocks system.

The new law allows for exceptions to be made if the DUI offender does not own a vehicle or if installing an ignition interlock in all vehicles owned by the DUI offender would impose a financial hardship. Additionally, DUI offenders who drive a work vehicle can be exempt from the requirement to install the ignition interlock on the work vehicle, but only if is not driven for personal use.

This change is good news for a lot of Berks County DUI offenders. First-time DUI offenders are eligible to apply for the ignition interlock limited license as soon as their license suspension becomes effective. This means that there is little, if any, time when they are unable to drive. Repeat DUI offenders are allowed to apply for the ignition interlock limited license once they have completed half of their suspension. The new law makes it easier for DUI offenders to continue working and going to school while hopefully ensuring that they are doing so safely.

If you’ve been charged with a DUI in Reading, PA and have questions about when you are eligible to receive your ignition interlock limited license, contact our experienced Berks County DUI attorneys today at 610-372-5128 or info@enmlaw.com.

Spotlight Issue: Expunging PFA’s

Monday, August 28th, 2017

What can you do to remove a Protection from Abuse Order (PFA) from your record? Your ability to expunge the PFA depends on how far in the process your case proceeded. Our attorneys are very familiar with the steps necessary to successfully expunge Berks County PFA’s. First, here is a summary of the Berks County PFA process:

- a plaintiff files a petition requesting a PFA

- an ex parte (just plaintiff and judge) petition hearing is held at which time the plaintiff gives details about the alleged abuse that has occurred the judge decides if there is immediate danger and grants a Temporary PFA if he or she finds that there is

- a Final PFA hearing is scheduled within 10 days of the petition hearing – at the final hearing the Plaintiff has to prove by a preponderance of the evidence that abuse (as defined by statute) occurred

- if a judge finds that abuse did occur, he or she can enter a Final PFA for up to 3 years and can include relief such as eviction, prohibition of contact, temporary custody provisions and a prohibition on possessing firearms

So, can you remove a PFA from your record? Well, the answer is pretty straightforward if your case never got to the Final PFA hearing. If a Temporary PFA was not granted at the petition hearing, or if your Temporary PFA was dismissed before the Final PFA hearing then the law is pretty clear that any mention of the case can be removed from most databases. This is also true if your case proceeded to a Final PFA hearing and the judge found that no abuse occurred and dismissed the PFA. A Final PFA entered by agreement or after a hearing is much more difficult to expunge and the court must employ a balancing test to determine when expungement is appropriate.

Many people don’t take advantage of the expungement process for PFA’s, but the only way to ensure that a non-final PFA doesn’t have a negative impact in the future is to completely remove it from your record. If a PFA was filed against you in Berks County and later dismissed, make sure that it doesn’t come back to haunt you unexpectedly. Call our Reading, PA PFA expungement attorneys to start the expungement process today at 610-372-5128 or email us at info@enmlaw.com.

ENM Law News: Custody case dismissed in favor of ENM Law client

Monday, August 28th, 2017

A client came to see Attorney McAllister about a custody case filed by the father of her child in Berks County in December of 2016. Attorney McAllister quickly filed objections to the case on our client’s assertion that the child had been living with her in New Jersey for more than 6 months prior to the filing of the custody action.

Why does that timeframe matter? The Uniform Child Custody Jurisdiction and Enforcement Act, which governs child custody in almost all states is the U.S., determines where a custody action can be filed – this is called venue. A custody action can generally be filed in the child’s home county or the county where the child had previously been living if the child was still living there within 6 months of the commencement of proceedings and if a parent continues to live in that former county.

Once Attorney McAllister filed an objection to the custody case on the basis that the Berks County venue was not appropriate, the judge scheduled a hearing to take testimony from witnesses about when the child moved to New Jersey. After hearing the evidence, the judge determined that the child had in fact been living in New Jersey for more than 6 months prior to the commencement of the custody action and dismissed the case. Attorney McAllister’s experience and knowledge of custody law saved our client from having to travel to Berks County from New Jersey to defend against the custody case.

If a Berks County custody case has been filed against you, you need our knowledgeable Reading, PA custody attorneys to evaluate your case. Call us at 610-372-5128 or email at info@enmlaw.com.

ENM Law News: Dismissal of eviction case for commercial tenant

Friday, August 25th, 2017

Commercial tenants and landlords can have disagreements just like their residential counterparts. Disagreements can lead to eviction proceedings. Recently, a Berks County business owner came to Attorney McAllister because of a problem with a commercial lease. This client had signed a 2-year lease with the intention of running a hookah lounge in the building. After signing the lease, the client made many costly improvements to the property in an effort to upgrade the space and attract clientele. Only 3 months into the lease, the landlord tried to evict our client over complaints about loud music and too many people coming to the lounge. Our client stood to lose substantial amounts of money because of the improvements made to the property. The eviction case was scheduled for a hearing in front of a Berks County Magisterial District Judge. Attorney McAllister appeared on behalf of this client and argued that the lease had not been breached because the lease was silent on the complaints raised by the landlord. The MDJ agreed with Attorney McAllister and dismissed the eviction case which means that our client’s business can stay at its current location.

The eviction process for commercial leases is generally the same as those that most people are familiar with in residential leases. If a landlord for a commercial tenant believes that the lease has been breached either for failure to pay rent or failure to abide by the rules of the lease then he can take steps to evict the tenant. The eviction process begins with sending a Notice to Quit to the tenant which notifies the tenant of the alleged breach and sets a deadline for the tenant to vacate the premises. If the tenant does not fix the problem or leave the property then the landlord can file a complaint for eviction in magisterial district court.

If you’re a Berks County business owner having problems with your commercial lease, contact our knowledgeable real estate attorneys at 610-372-5128 or email us at info@enmlaw.com.

ENM Law News: RCC cases dismissed

Wednesday, July 26th, 2017

If you don’t know what RCC is, read our blog explaining it here.

As mentioned in the blog, if you’ve been charged with a crime within the City of Reading, your preliminary hearing will be held in Reading Central Court (RCC). RCC can be an overwhelming place and it is important to have an attorney who knows the ins and outs of the RCC system.

Our criminal law attorneys have spent many years representing clients in RCC. Here are some details about two recent cases handled by Attorney Nevins.

Attorney Nevins recently represented a client in RCC who was charged with discharge of a firearm into an occupied structure and simple assault. The client admitted that he was holding a gun that discharged, but said that it happened accidentally. The client said that he was surprised in the stairwell of his home by his estranged wife with whom he shared the house and inadvertently fired the gun. Attorney Nevins argued to the assigned Assistant District Attorney that the statute only criminalizes shots into a building from outside that building. The ADA agreed and withdrew the felony firearm charge. The client’s estranged wife who was listed as the victim in the simple assault charge indicated that she did not want to be involved with the case so Attorney Nevins asked for the assault charge to be withdrawn as well. At the end of the day, Attorney Nevins’ client walked away with no criminal charges after facing a felony of the third degree and a misdemeanor of the 2nd degree. Between the two charges he was looking at a possible 9 years of incarceration and a $20,000 fine.

Attorney Nevins also represented a client in RCC who was charged with resisting arrest. Resisting arrest is graded as a misdemeanor of the second degree and is punishable by a maximum sentence of 2 years of incarceration and a $5,000 fine. This client was sitting on the stairs next to a barbershop that had a “no trespassing” sign. A police officer approached the client and asked for his name. The client refused to give his name so the officer told him that he was being arrested. While the officer was trying to place him in handcuffs, the client stiffened his arms and the officer said that he was resisting the arrest. Unfortunately, the client was on probation at the time of his arrest so a detainer was lodged against him to keep him in jail. The client was in custody for 2 weeks waiting for his preliminary hearing in RCC. Attorney Nevins pointed out the problems in the Commonwealth’s resisting case and the Assistant District Attorney agreed to withdraw the resisting arrest charge in exchange for the client pleading guilty to a summary charge of trespass. The client agreed and was quickly released from jail.

Your preliminary hearing in RCC is your first chance to have the charges against you dismissed. You need an experienced criminal defense attorney on your side. If you’ve been charged with a crime in Reading, PA, contact our knowledgeable attorneys at 610-372-5128 or email us at info@enmlaw.com.

Spotlight Issue: What is Reading Central Court (RCC)?

Wednesday, July 26th, 2017

You’ve been charged with a crime and now you’re scheduled for something called Reading Central Court (more commonly referred to as “RCC”). Are you wondering what that means? We can help!

In Pennsylvania, the first stop for misdemeanor and felony cases is the preliminary hearing. This hearing is held in front of a magisterial district judge. At a preliminary hearing, the Commonwealth must establish a prima facie case that a crime was committed and that the defendant was the one who committed it. This hearing is the first chance for the defendant to test the evidence offered by the Commonwealth by cross-examining the witnesses put forward. It is important for you to have an attorney present to represent you at your preliminary hearing. It is in your best interest to have a knowledgeable criminal defense attorney on your side to evaluate the evidence and make the best arguments to the judge in support of your case.

After listening to the testimony and the arguments from the attorneys, the magisterial district judge will determine whether the Commonwealth has met their burden of proof for each charge. If the burden has not been met then the charge will be dismissed. If the burden has been met then the charges will be “bound over” to the Berks County Court of Common Pleas.

In Berks County, the location for your preliminary hearing is determined by where the alleged crime was committed. Each part of the County is divided into districts and a magisterial district judge is elected to hear cases in each area. However, all of the preliminary hearings for crimes allegedly committed within the City of Reading are held in RCC. These hearings are always held on Fridays at the Berks County Courthouse. RCC can be an overwhelming place and it is helpful to have an attorney who understands how the court operates.Our criminal law attorneys have many years of experience with navigating the RCC system and their experience can only benefit you.

If you’ve been charged with a crime in the City of Reading and have been scheduled for a preliminary hearing in RCC, contact our experienced criminal law attorneys today at 610-372-5128 or email us at info@enmlaw.com.

ENM Law News: Indecent Exposure charge dismissed following bench trial

Monday, July 10th, 2017

What do you do if you’ve been charged with a sex offense in Reading, PA that you didn’t commit? You need to hire an experienced criminal law attorney as quickly as possible. That’s exactly what a recent client did when he hired Attorney Nevins to represent him for an indecent exposure charge in Berks County.

This client was falsely accused of exposing himself to a 15-year-old girl when she was walking to school. The victim gave a physical description of the culprit which included that he had a beard. Cases like this result in great public outcry and the police are under pressure to arrest the culprit immediately even when there is questionable evidence. In this case, there was surveillance footage of the victim and the culprit prior to actual exposure, but the footage was not clear and made identification difficult. Police then looked at local Megan’s Law registrants (prior sex offenders) and found our client. No other suspects were considered. Police placed our client’s picture in a photo lineup and the victim identified him during her follow-up interview. Our client was arrested and was unable to pay bond to be released from custody because of a parole detainer lodged against him for a prior conviction.

Our client needed Attorney Nevins to quickly prove to the Court that he had been falsely accused. Attorney Nevins requested an expedited bench trial (trial heard by a judge rather than a jury) and the Court complied. Attorney Nevins presented an alibi defense which relied on the testimony of our client’s cousin. The cousin testified that she and our client were texting each other about transportation to work at the same time that the victim said the crime occurred. Further, the cousin testified about the clothes that our client was wearing when she picked him up that morning and testified that our client was clean-shaven. This physical description did not match the description given by the victim.

After hearing all of the evidence, the Judge found our client “not guilty.” This case shows the importance of investigations as well as the unreliability of eyewitness testimony. Thanks to the hard work of Attorney Nevins, a knowledgeable criminal defense attorney in Reading, PA, this client is no longer facing charges for a crime that he did not commit.

If you’ve been charged with a criminal offense in Berks County, contact our criminal defense attorneys today at 610-372-5128 or email us at info@enmlaw.com.

Read an article about this case in the Reading Eagle by clicking here.

Spotlight Issue: What is the difference between a 1543(a) and a 1543(b) violation?

Friday, June 30th, 2017

What is the difference between a 1543(a) and a 1543(b) violation? Both violations are traffic offenses, but the consequences for each are vastly different. We’ll point out some of the most important differences here.

1) Both 1543(a) and 1543(b) violations relate to driving with a suspended license, BUT the reason for the original license suspension determines which section applies.

- 1543(a): any type of license suspension not related to a DUI

- 1543(b): license suspension related to a DUI – ex. DUI conviction or ARD disposition or refusal to submit to chemical testing

2) Both 1543(a) and 1543(b) convictions result in fines and additional license suspensions, BUT there are drastic differences in the amount of jail time involved (if any)

- 1543(a): the beginning penalty is a $200 fine and an additional license suspension – repeat violations result in an increased penalty of up to $1,000 fine and a jail sentence of up to 6 months – a 6th or subsequent conviction results in a mandatory $1,000 fine and a mandatory jail sentence of 30 days – 6 months

- 1543(b): penalty of $500 fine and immediately includes a mandatory jail sentence of 60 to 90 days

3) 1543(b) has increased penalties if the driver has drugs or alcohol above .02% in his blood OR refuses to submit to chemical testing, 1543(a) does not
– 1st conviction with enhanced penalty – mandatory $1,000 fine and 90 day jail sentence
– 2nd conviction with enhanced penalty – mandatory $2,500 fine and a jail sentence not to exceed 6 months
– 3rd conviction with enhanced penalty – mandatory $5,000 fine and a jail sentence not to exceed 2 years

As you can tell from this summary, there are much stricter penalties for driving with a DUI-suspended license under 1543(b); however, a 1543(a) violation should not be taken lightly, either. If you’ve been charged with either of these traffic offenses in Berks County, the stakes are too high for you to try to handle your case on your own. Our attorneys will investigate your case to see whether you have been properly charged and discuss your options with you, including the possibility of negotiating a reduced sentence. Contact our knowledgeable criminal law attorneys today at 610-372-5128 or email us at info@ennlaw.com.