Archive for the ‘Uncategorized’ Category

ENM Law News: Indirect Criminal Contempt win

Tuesday, June 13th, 2017

A client came to our office looking for assistance with an Indirect Criminal Contempt (ICC) charge for violating a Protection from Abuse order (PFA). Attorney McAllister found out that the offer from the District Attorney’s office was for a jail sentence of 3-6 months. Attorney McAllister and the client decided to proceed with a hearing. An ICC hearing is essentially a small trial in front of a judge. The District Attorney has to prove beyond a reasonable doubt that the defendant violated the PFA by proving 4 elements:

- that the PFA was sufficiently definite, clear and specific to properly notify the defendant about what conduct was prohibited
- that the defendant knew about the PFA
- that the alleged act was volitional
- that the defendant acted with wrongful intent

The PFA plaintiff and our client both testified at the hearing and Attorney McAllister argued that the District Attorney did not prove the case beyond a reasonable doubt. He specifically argued that his client did not act with wrongful intent. The judge agreed with Attorney McAllister’s argument and dismissed the charge against our client.

If you’ve been charged with violating a PFA in Berks County, do not attend the hearing on your own. Contact our experienced criminal law attorneys in Reading, PA at 610-372-5128 or info@enmlaw.com.

ENM Law News: Armed robbery charge dismissed at preliminary hearing

Wednesday, May 31st, 2017

Attorney Nevins recently represented a client who was incarcerated for an armed robbery charge. Armed robbery is a felony of the first degree and is punishable by a maximum of 20 years of incarceration and a $25,000 fine. Our client denied the allegations and said that he was trying to help the alleged victim, not rob him. Attorney Nevins made plans to fight the charges at the preliminary hearing. Disinterested witnesses were found who supported our client’s version of events and Attorney Nevins made sure that they were in court for the hearing. He presented the witnesses to the police officer and Assistant District Attorney who agreed to withdraw the charges after hearing the witnesses’ credible stories. It turns out the the alleged victim had overdosed on heroin and concocted this story blaming our client in order to avoid getting in trouble with his probation officer. Our client was released from custody the same day as the hearing and faces no criminal charges as a result of this incident.

If you’ve been falsely accused of criminal charges in Reading, PA, contact our experienced and knowledgeable Berks County criminal attorneys to see what can be done to help you. Call us at 610-372-5128 or email at info@enmlaw.com.

Spotlight Issue: Update on DUI license suspensions in Pennsylvania

Wednesday, May 31st, 2017

In 2016, the US Supreme Court issued a decision in Birchfield v. North Dakota which changed the way that DUI cases are handled in Pennsylvania. Read more about that decision here. One issue that the Birchfield Court seemed to leave alone was civil penalties for a driver refusing to submit to chemical testing (blood or breath test). But, the Pennsylvania Commonwealth Court has now addressed the issue directly following the Birchfield decision.

In Boseman v. Department of Transportation, Bureau of Driver Licensing, the defendant was arrested for suspicion of DUI and was asked to submit to a blood test. The police said that she refused to submit to the test and her driver’s license was suspended for 1 year as a result of that refusal. In her appeal, the defendant argued two issues. First, that she should have been given a second chance to submit to the blood test before the police decided that she had refused. Second, because of the new requirements under Birchfield, the defendant argued that the police should have obtained a search warrant before requesting that she submit to the blood test.

In its decision, the Commonwealth Court said that the police were not required to give the defendant a second chance to take the blood test. The Court said that the police are not required to try to convince drivers to try to take the test or wait for them to make a decision. Further, once a driver has refused, he cannot later change his mind and agree to take the test.

The Commonwealth Court in Boseman also declined to overturn the defendant’s license suspension in light of the Birchfield decision. The Commonwealth Court essentially said that the Birchfield decision did not apply to the defendant’s case because her license was suspended in an administrative proceeding under the civil Implied Consent statute rather than as a result of a criminal penalty in a criminal statute. The Commonwealth Court further said that the Implied Consent warnings that were read to the defendant made it clear that it was not a crime to refuse to submit to the blood test, but that there would be a license suspension as a result of the refusal. Therefore, the Commonwealth Court said that the license suspension was appropriate.

What does this mean for Berks County drivers? At this time, the new DUI requirements under Birchfield do not apply to license suspensions for refusal to submit to chemical testing. The license suspension process will continue to be handled by PennDot as it was prior to the Birchfield decision. But, there is a lot of change on the criminal side of things and we’ll give you some updates on that soon.

If you’ve been charged with a DUI in Reading, PA and your license has been suspended because the police said you refused to submit to chemical testing, you may be able to fight your license suspension with PennDot. Contact our experienced Berks County DUI lawyers before you miss any deadlines. Call us at 610-372-5128 or email at info@enmlaw.com.

Alibi Defense In PFA: Case Dismissed

Sunday, May 28th, 2017

Attorney Dan Nevins secured a dismissal of a PFA (Protection From Abuse) for a client last week in the Berks County Court of Common Pleas. The client’s daughter brought allegations of abuse that she said occurred on a certain date and time earlier this month. Attorney Nevins worked with the client to interview several witnesses who were with the client at the time of the alleged abuse. Two of the witnesses testified at the time of the hearing that they were present at client’s home helping his perform repairs to a water line. The young lady making the allegations was not even present when she said the abuse occurred, the witnesses said. The Judge immediately dismissed the PFA.

Spotlight Issue: Landlord / Tenant disputes

Saturday, April 29th, 2017

What are you rights as a tenant in Pennsylvania? Most of us have been tenants at one point in our lives and disputes with your landlord can be confusing. You may not have understood your lease when you signed it and now that a problem has come up, you’re wondering what you can do about it. Consulting an attorney who is experienced in dealing with these matters can be helpful and can ultimately save you money. In this blog we’ll discuss some of the common issues that arise between landlords and tenants in Berks County. Remember, you should always insist in a written lease.

Security Deposit

A landlord can ask for a security deposit equal to up to 2 months’ rent. The landlord must keep your security deposit in a separate account (escrow account). Disagreements often arise when a landlord wants to keep all or part of a security deposit. The terms of your security deposit return should be discussed in your lease. Once you have moved out and given your forwarding address to your landlord, he has 30 days to return your deposit. If he does not intend to return your entire deposit, then he has 30 days to send you an itemized list of damages with costs of repair. As a tenant, you can sue your landlord if he improperly refuses to return your security deposit. You can ask for double the amount of your deposit if the landlord does not send the itemized list or return your full deposit within 30 days. If you have questions about the return of your security deposit, contact our experienced Reading, PA landlord/tenant attorneys today.

Eviction

Eviction is the only way that a landlord can make you vacate a rented property. Landlords cannot simply lock you out of the property or turn off utilities. The eviction process starts with a written eviction notice called a “Notice to Quit.” This gives the tenant a set amount of time to leave the property. The landlord must give the tenant 10 days to leave (or pay) for nonpayment of rent and 15 days to leave for any other type of breach of lease. If the tenant refuses to leave then the landlord will file an eviction case in front of a Magisterial District Judge. The MDJ will schedule the case for an eviction hearing to determine who should have possession of the property – the tenant or the landlord. This decision is called a Notice of Judgment. The MDJ’s decision can be appealed to the Court of Common Pleas. If the MDJ grants a Notice of Judgment in favor of the landlord then once the appeal period has passed, the landlord will file for an Order of Possession. This orders the tenant to vacate the property within 10 days. If the tenant does not vacate in the appropriate time then a constable can forcibly remove the tenant. While you don’t have to have an attorney for the eviction hearing, your landlord may have an attorney and you will need to present your case to the MDJ. It is in your best interest to consult with an experienced landlord/tenant attorney prior to the eviction hearing.

Implied Covenant of Quiet Enjoyment

This is a tenant right that is not usually written in any lease, but rather is implied or understood to be a part of every lease in Pennsylvania and protects your ability to use the rental property as intended. This issue could come up if a landlord is entering your rental property frequently and without sufficient notice because such action would impact your right to privacy in your home. You should notify your landlord in writing of the problem. If your landlord fails to fix the problem, and you move out, then the covenant of quiet enjoyment will be your defense to your landlord’s lawsuit for your breach of the lease. If this is a situation that you are currently encountering in Reading, PA or Berks County, you should consult with our experienced landlord/tenant attorneys to ensure that you have protected yourself against a breach of lease lawsuit or judgment.

Implied Warranty of Habitability

Again, this is probably not a right that is contained in your lease, but your landlord must still abide by it. It means that you have the right to live in a property that is free from serious defects. Serious defects may include faulty wiring or a leaky roof. This does not cover cosmetic defects. If your rental property has a defect that makes it uninhabitable, you should notify your landlord in writing. If, after a reasonable time has passed, the problem has not been fixed, you can repair it yourself and deduct the repair costs from your rent. The repair costs must also be reasonable. You may also be able to withhold rent until the repairs are made. If you withhold rent, you need to place the unpaid rent in an escrow account and inform the landlord that you are doing so. Make sure you keep copies of all documentation so you can show your landlord or present it to the judge if your landlord sues you for failure to pay rent. If the defect is too costly for you to repair, you may be able to move out of the property and use the implied warranty of habitability as a defense to your landlord’s claim for breach of the lease. If this is a situation that you are currently encountering in Reading, PA or Berks County, you should consult with our experienced landlord/tenant attorneys to ensure that you have protected yourself against a breach of lease lawsuit or judgment.

Our experienced Berks County landlord/tenant attorneys are here to answer your questions. Contact us at 610-372-5128 or info@enmlaw.com.

ENM Law News: Judge orders return of security deposit for client

Saturday, April 29th, 2017

A recent client came to us because of a problem with a landlord. Our client signed a lease and gave the landlord a security deposit, but a disagreement then arose with the landlord over repairs that were supposed to be made prior to move-in. Our client decided not to move into the property and the landlord refused to return the security deposit because the lease terms allowed him to keep it. This client came to our Berks County landlord/tenant lawyers for help getting the money refunded. Attorney McAllister filed a case in front of a Magisterial District Judge asking for a return of the money. The MDJ granted a judgment in our client’s favor following a hearing at which Attorney McAllister argued that the security deposit should be returned based on the unfair terms of the lease. Our client was awarded $1,400 plus the costs of filing the the lawsuit.

If you’re involved in a landlord/tenant dispute, call our experienced Reading, PA landlord/tenant attorneys for a consultation at 610-372-5128 or email us at info@enmlaw.com.

Spotlight Issue: Custody rights of grandparents in Pennsylvania

Friday, March 31st, 2017

What custody rights do grandparents have in Pennsylvania? PA law sets forth the criteria to determine whether a grandparent can petition the court for any type of physical custody of a child (including full custody):

- The grandparent’s relationship with the child must have started with the consent of a parent of the child or under a court order;
- The grandparent must be willing to assume responsibility for the child; and
- One of the following conditions must be met:

1- the child is declared dependent by the courts
2- the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity; or
3- the child has lived with the grandparent for a period of at least 12 consecutive months and is then removed from the home by the parents – the action must be filed within six months of the child’s removal

If a grandparent in Pennsylvania is requesting only partial physical custody or supervised physical custody then the grandparent must show one of the following situations exists:

- If a parent of the child is deceased then a parent or grandparent of the deceased parent may file for custody
- The parents have commenced and continued divorce proceedings
- The child has lived with the grandparent for a period of at least 12 consecutive months and is then removed from the home by the parents – the action must be filed within six months of the child’s removal

**Note – Pennsylvania previously allowed grandparents to seek partial physical custody or supervised physical custody where the parents of the child were separated for 6 months, but the Pennsylvania Superior Court recently ruled in D.P. v. G.J.P. that this portion of the statute to be unconstitutional.

As in all custody cases, the courts use a “best interest of the child” standard to determine whether or not a grandparent should be granted custody rights of a child.

If you are a grandparent seeking custody or your child’s grandparent has filed a custody action against you, you should consult with an experienced family law attorney on this lesser-known area of law. Contact our Berks County custody attorneys today at 610-372-5128 or email us at info@enmlaw.com.

Spotlight Issue: Expungement of criminal offenses

Thursday, March 2nd, 2017

A criminal charge, even without a conviction, can have a very negative impact on a person’s ability to obtain employment, get a loan or find housing. Is there anything that can be done to erase your criminal record? In some cases, yes: you may be eligible to have your record expunged or declared “limited access.”

What is expungement? In Pennsylvania expunging a criminal record is defined as the following:

1- removing information so that there is no trace or indication that such information existed
2- eliminating all identifiers which may be used to trace the identity of an individual
3- maintaining certain information when an individual has successfully completed the conditions of any pretrial or post trial diversion or probation program (ex. ARD)

Even if you’ve been convicted of a crime, you can still have your record expunged under the following circumstances:

- the defendant has reached 70 years of age and has remained arrest free for 10 years since the date of release from confinement or supervision
- the defendant has been dead for 3 years
- the defendant was convicted of a summary offense and has remained arrest free for five years following that conviction
- the defendant, who is 21 or older, was convicted of underage drinking after turning 18 and has satisfied all terms and conditions of the sentence imposed

**A judge has the discretion to grant expungement in situations 1-3, above, but MUST grant an expungement in situation 4 if a petition for expungement is filed.

If a criminal case was filed against you, but the charges were dismissed or you were found “not guilty” following a trial then the court can order that the charge be removed from your record.

However, except in the case of ARD, expungement is not done by the court automatically. This means that if you fall under any of the criteria for expungement other than completing your ARD case, you must file the proper paperwork to have the court consider your request for expungement.

As of November 2016, there is a new way to prevent a criminal record from ruining your future. Pennsylvania law now allows for a judge to enter an order for “limited access.” This law applies to those defendants

- who have remained free of arrest or prosecution for 10 years from the date of conviction or final release from confinement or supervision, whichever is
later and
- were convicted of a misdemeanor of the second degree, a misdemeanor of the third degree or an ungraded offense who carries a maximum penalty of no
more than 2 years
- none of the exceptions apply

Under limited access, the criminal record is not erased, but the court orders that any criminal justice agency maintaining these records may not release any information about the case except to other criminal justice agencies, professional licensing agencies or some specific government agencies.

A defendant who is otherwise eligible cannot obtain a limited access order if he has ever had a conviction for any of the following

- an offense punishable by more than 2 years or more of imprisonment
- four or more offenses punishable by 1 or more years of imprisonment
- a simple assault conviction except when the offense is graded as a misdemeanor of the third degree
- a violation for sexual intercourse with animals, impersonating a public servant, intimidation of witnesses or victims, retaliation against witness, victim or
party, intimidation, retaliation or obstruction in child abuse cases, any offense which requires registration as a sex offender

Just as with expungements, a petition must be filed to ask the court to issue a limited access order.

Under both the limited access and expungement provisions, the district attorney’s office has a right to object to the expungement. If there is an objection then a hearing will be held at which time the judge will weigh the defendant’s interest in having the record expunged or declared “limited access” versus the state’s interest in keeping the record public.

If you have a Berks County criminal record that is holding you back and you think you might be eligible for either of the above options, contact our experienced Reading, PA criminal law attorneys at 610-372-5128 or info@enmlaw.com.

ENM Law News: “Not guilty” verdict in drug possession case

Thursday, February 23rd, 2017

A recent client came to ENM Law when he was facing the possibility of a lengthy prison sentence. This client was on parole for murder when he was charged with simple drug possession. While a possession charge usually only carries a probationary sentence, this client was looking at a state sentence for the new charge as well as a state sentence for violating his parole with a new conviction. In consultation with Attorney Nevins, this client decided to take his case to trial and elected to have the case heard by a judge in a bench trial, rather than by a jury.

The client was a passenger in a vehicle operated by a woman whom he had paid to give him a ride to a friend’s house. The vehicle was pulled over for suspected DUI. The officer who made the stop eventually searched the vehicle and found PCP, cocaine and marijuana in the passenger door compartment and underneath the passenger seat. The driver of the vehicle said that the drugs weren’t hers and that they must belong to our client because she saw him smoking what she believed to be PCP-laced cigarettes. Based on the statements from the driver, our client was charged with possessing those drugs.

Because the drugs were not found in our client’s actual possession, the prosecution had to proceed under a theory called construction possession. Put simply, a person can be charged with constructive possession of a drug if they have the ability and intent to control it, even if there is not any actual/physical possession.

Attorney Nevins was able to attack the credibility of the driver by showing that she was charged with driving under the influence of PCP and marijuana on that specific occasion, had been charged with driving under the influence on two prior occasions, and was currently on probation for committing a theft crime. Attorney Nevins was further able to show that our client did not show any signs of being under the influence of drugs and that the officer did not see any movements by our client which would leave the officer to believe that the client was hiding drugs after the vehicle was stopped.

The judge found our client “not guilty” and stated that she could not find the driver of the vehicle credible and there was not sufficient evidence to convict our client without the driver’s statements.

Through his hard work and diligent representation, Attorney Nevins was able to save this client from serving a significant jail sentence.

If you’ve been charged with a drug offense in Reading, PA, contact our experienced criminal law attorneys at 610-372-5128 or info@enmlaw.com.

ENM Law News: Summary Retail Theft charge dismissed

Wednesday, February 8th, 2017

A client recently came to ENM Law looking for assistance with a summary Retail Theft charge that had been filed against her. The circumstances surrounding the charge were a little bit unusual: she had been charged by private criminal complaint approximately 7 months after the offense was allegedly committed and the client had already paid restitution to the store as a result of a demand letter from the store threatening to sue her civilly for damages.

Most people are probably unaware that criminal charges can be filed by private complaint without the involvement of police. In the case of a summary offense, a private citizen may file a complaint in front of a magisterial district judge and a hearing will be scheduled. The police and District Attorney’s office are not involved in the prosecution of summary offenses filed by private complaint.

You may also be unaware that stores are able to utilize a provision which allows them to bring a civil suit for restitution in the case of retail theft. While restitution can be ordered through a criminal case, in a civil action, the store can also be paid a civil penalty in the amount of $150 in addition to the value of the items taken.

Our client was very concerned about the possibility of a conviction for Retail Theft because it can be so detrimental during an employment search. Attorney McAllister successfully argued to the Berks County Magisterial District Judge that the private complaint should be dismissed because of its untimely filing and because the client had already paid $200 to the store as requested in the demand letter. As a result of Attorney McAllister’s representation, the summary Retail Theft charge was dismissed.

ENM Law is able to assist this client further by filing to expunge the summary Retail Theft charge from her record. This means that no potential employer will be able to see that the charge was ever filed. That will be a significant benefit to this client in the future.

If you’ve been charged with summary Retail Theft in Reading, PA or want to discuss the possibility of expunging a charge that did not result in a conviction, contact our experienced criminal law attorneys today at 610-372-5128 or info@enmlaw.com.