Posts Tagged ‘reading pa dui attorney’

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 However, the outdated classification continues to leave Pennsylvania DUI law in limbo.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: What is the status of DUI’s in Berks County following the Birchfield decision?

Friday, September 30th, 2016

DUI law in Berks County is currently in question following the US Supreme Court’s decision in a case called Birchfield v. North Dakota. The Birchfield case addressed a number of issues including warrantless requests for chemical testing, the implied consent warnings that are read when chemical testing is requested by the police and enhanced penalties for refusal to submit to the testing.

In Pennsylvania prior to the Birchfield decision, if a police officer had probable cause to believe that a driver was DUI (from either alcohol or drugs) then he could request that the driver submit to a breath or blood test without having to obtain a warrant for that search. At the time that the request for breath or blood was made, the officer had to read implied consent warnings to the driver which put the driver on notice that consent to the testing was implied under PA law and any refusal to submit to the testing would result in enhanced criminal and civil penalties. A subsequent refusal to submit to the testing would lead to increased jail time and fines as well as an automatic license suspension.

So what has changed about DUI since the Birchfield decision? Well, there are a lot of questions about what the case means and how chemical testing and refusals should be handled. Here’s what we know so far.

The Birchfield Court held that a warrant is required for police to request a test of a driver’s blood alcohol content (BAC) by blood test. There is no longer a “search incident to arrest” exception to the general rule that a warrant is required before a search is conducted. However, that is only true for BLOOD tests; a breath test can still be requested without a warrant if it is done incident to a DUI arrest. Does this matter in Berks County? Yes, because the majority of police departments in Berks County relied on blood tests instead of breath tests. What does that mean for you if you were arrested for a DUI and a blood test was requested without a warrant? It means that you need one of our experienced Reading, PA DUI lawyers to evaluate your case and possibly file a pretrial motion on your behalf. This will bring your case in front of a judge to decide whether the request for a warrantless blood draw was lawful.
The PA implied consent warnings that were read when blood testing was requested following a DUI arrest may have been coercive according to the Birchfield Court’s ruling. The forms included the statement that refusal to submit to the testing and a subsequent DUI conviction would result in “more severe penalties …, the same as if you would be convicted of driving with the highest rate of alcohol.” (as stated in the PA DL-26 form). The question for the PA courts is whether or not this threat of enhanced penalties which have been found to be unlawful by the Birchfield Court negate any consent given by the driver to submit to chemical testing. What does that mean for you if you were arrested for a DUI and consented to a blood test after being read the implied consent warning? It means that you need one of our experienced Reading, PA DUI lawyers to evaluate your case and possibly file a pretrial motion on your behalf. This will bring your case in front of a judge to decide whether your consent to the blood test was freely given.
Perhaps the biggest change from the Birchfield case will come as a result of the Court’s ruling that drivers may not be punished criminally for refusing to submit to blood testing. Please note that this does not apply to breath tests. This could mean that the enhanced criminal penalties for refusing to submit to a blood test in PA’s vehicle code section 3804(c) are unlawful. 3804(c) says that a driver who refuses to submit to chemical testing and is later convicted of a DUI will be sentenced as if he had the highest rate of alcohol. The Birchfield Court did say that enhanced civil penalties are permissible so the automatic license suspension for a refusal will most likely remain in place. What does that mean for you if you were arrested for a DUI and refused to submit to a blood test? It means that you need one of our experienced Berks County DUI lawyers to evaluate your case and possibly file a pretrial motion on your behalf. This will bring your case in front of a judge to decide whether you were properly charged with enhanced penalties for refusing to submit to a blood test.

What should you conclude from all of this information? If you have a pending DUI charge then you may be able to receive a reduced sentence as a result of the current confusion. However, that won’t happen automatically. You need to contact one of our experienced Berks County DUI attorneys so that we can start working on your case as soon as possible. Call us today at 610-372-5128 or email us at info@enmlaw.com.

ENM Law News: Positive outcomes in Berks County DUI-related cases

Friday, September 30th, 2016

What should you do about your Berks County DUI charge? You should have your case evaluated by one of our experienced DUI attorneys. Read about some of our recent cases.

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A client was charged in Berks County for driving with a DUI suspended license otherwise known as a 1543(b) violation. Read more about the charge here. The client was facing a mandatory 60 day jail sentence and $500 fine. This client came to Attorney Ebner hoping to avoid these penalties. Attorney Ebner attended the hearing and reached an agreement with the police wherein the charge was significantly reduced and the client received a $25 fine plus court costs with no further license suspension.

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A Berks County 1st-time DUI offender was facing a mandatory 72 hours of incarceration, a 1 year license suspension and fines and costs for a highest-rate of alcohol DUI. Read more about first-offense DUI’s here. Attorney Ebner stepped in to represent this client to try to reduce the sentence. Attorney Ebner submitted multiple character letters on this client’s behalf and was able to negotiate a sentence wherein the client was placed into the DUI ARD program and received no jail time or license suspension. Read more about the Berks County DUI ARD program here.

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One of our Berks County clients was charged with a first-offense DUI and additionally with refusing to submit to chemical testing. This client had applied for the DUI ARD program and was facing the usual ARD sentence for a DUI with a refusal which included a 60-day license suspension. The client was charged prior to the US Supreme Court’s recent decision in Birchfield (read more about this important DUI case here** add link). Knowing that the Court’s decision was coming soon and that it could have a huge impact on her client’s case, Attorney Ebner delayed the disposition of this client’s case to wait for a ruling in Birchfield. Because of the new issues that have been raised by the Supreme Court’s Birchfield decision, this Berks County DUI client was given a reduced ARD sentence for general impairment (the lowest level DUI sentence) and NO license suspension.

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If you’ve been charged with a DUI or 1543(b) violation in Berks County, whether it’s your first criminal charge or you have been convicted of crimes in the past, you need an experienced DUI attorney to review your case. Our Reading, PA DUI attorneys have all of the necessary experience to get you the shortest DUI sentence possible. Contact us today at 610-372-5128 or info@enmlaw.com.


Spotlight Issue: What happens after I’ve been arrested for a DUI in Berks County?

Wednesday, August 24th, 2016

Your first court appearance in Berks County after your arrest will be your Preliminary Arraignment. This is a time when you go in front of a Berks County Magisterial District Judge, are informed of the charges against you and your bail is set. If you’ve never been charged with a crime before then your bail will probably be set at ROR (released on your own recognizance) or an unsecured amount (no money needs to be paid to remain out of jail). You will also be given a date for your Preliminary Hearing. It is very important that you have an attorney with you for your Preliminary Hearing so it is in your best interest to contact our experienced DUI attorneys as soon as you are informed of your Preliminary Hearing date.

Your Preliminary Hearing will also be held in front of a Magisterial District Judge, but there will be more parties present for this appearance. Your attorney will be present along with a Berks County Assistant District Attorney and the police officer who filed the DUI charge against you. Any additional witnesses should also be present at that time. This is the time that the Commonwealth needs to establish that you committed the crime of DUI by a preponderance of the evidence. In other words, it is 51% likely that you committed the crime. After consultation with your attorney you will decide whether to have your Preliminary Hearing or waive your right to a hearing. If you waive your right to a hearing or the charges are “bound over” following a hearing, your case will move to the Berks County Court of Common Pleas. Your Preliminary Hearing is also the time that you can apply for the DUI ARD program. For more details on what happens after you apply for the Berks County DUI ARD program, click here.

If you have applied for the ARD program then you will be given a court date in front of the DUI judge. If you have not applied for the ARD program then your next court date will be your Formal Arraignment in the Berks County Court of Common Pleas. Your attorney can help you waive your appearance at the Formal Arraignment which will save you a trip to court. After your Formal Arraignment, you will be scheduled for a status date in front of the Berks County DUI judge. All DUI’s in Berks County are handled in front of the same Court of Common Pleas judge.

Once your case is in the Court of Common Pleas, your attorney can request discovery. Discovery consists of the evidence that the police have compiled against you. This will include police reports, witness statements and lab reports. Our Reading, PA DUI attorneys will carefully examine the evidence against you to determine whether a pretrial motion should be filed in your case. Most often a pretrial motion would be filed in there was something wrong with the way that the police officer stopped your car, but there can be other reasons for a motion to be filed. It is best to consult with one of our experienced DUI attorneys to determine if the police handled your case correctly. It is possible for a DUI charge to be dismissed completely following a Pretrial Hearing, but if that doesn’t happen then you will need to decide whether you want to proceed with trial.

If you are charged with a first-offense DUI and you decide to proceed with a trial then it will be held in front of a judge instead of a jury. This is called a Bench Trial. In Pennsylvania there is no right to a jury trial for a first-offense DUI. If you are charged with a second or subsequent DUI then you will need to decide whether to have a bench trial or Jury Trial. You should only make this decision after discussions with your attorney. The decision to proceed with trial is one that should be taken very seriously and made only after consultation with an experienced DUI trial attorney. Because you will generally be facing a more severe DUI sentence if you are convicted following a trial.

If you’ve been charged with a DUI in Berks County then you should contact our knowledgeable DUI attorneys today at 610-372-5128 or email us at info@enmlaw.com.

ENM Law News: DUI ARD Reconsideration

Friday, June 24th, 2016

A recent Berks County DUI client was placed in the ARD program thanks to the hard work of Attorney Ebner. This client had been denied entry into the Berks County DUI ARD program on two previous occasions when represented by other attorneys. This client was a single mother with 2 children and desperately needed her driver’s license. The DUI ARD program has a mandatory license suspension for certain BAC’s, but the suspension is much shorter than with a DUI conviction. Attorney Ebner instructed her client to pay off all outstanding fines and then asked for her ARD application to be reconsidered again. This time the request was granted and the DUI client was placed in the ARD program.

If you’ve been charged with a DUI in Reading, PA and want to know if you’re eligible for the Berks County DUI ARD program, contact our knowledge DUI attorneys at 610-372-5128 or email us at info@enmlaw.com.

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

Tuesday, May 31st, 2016

Attorney Nevins recently obtained an “not guilty” verdict for a client charged with a 2nd offense DUI in Berks County. This client was involved in a single-vehicle accident and later refused to submit to chemical testing. Based on the accident and refusal, he was facing a mandatory minimum sentence of 90 days of incarceration. After consultation with Attorney Nevins, this client decided to proceed with a bench trial which meant that a judge, rather than a jury, would decide the verdict.

At trial, Attorney Nevins convincingly attacked the police officer’s determination that the client had failed the field sobriety tests. Under cross examination, the officer had a difficult time describing the training that he had received in administering field sobriety tests and was forced to admit that he had left out key details in his field notes. Further, Attorney Nevins was able to establish that the officer had failed to take into account the client’s documented head injuries when scoring his performance on the field sobriety tests. This client then testified that he had consumed only two beers several hours before driving and a credible witness testified that he had seen the client drinking only water for an hour before leaving the bar. Thanks to the hard work of Attorney Nevins, the judge determined that the Commonwealth had not proven their case and ruled that the client was “not guilty.”

Although it can often seem pointless to fight a DUI charge, this case shows that having an experienced Berks County DUI attorney can make a huge difference in the outcome of your DUI case. If you’ve been charged with driving under the influence, call our DUI attorneys today at 610-372-5128 or email us at info@enmlaw.com.

ENM Law News: ARD for DUI and Simple Assault Charges

Wednesday, March 23rd, 2016

A recent client came to ENM Law for help with DUI and Simple Assault charges. It is alleged that this client was found asleep at the wheel of his car in the middle of the street and scuffled with police officers when arrested. One of the officers was injured as was the client. This client’s original ARD application was denied because of his alleged conduct with police and later with doctors at the hospital and because of his alleged extreme level of intoxication. This client was facing a mandatory 72 hour jail sentence for the DUI and a maximum permissible sentence of two years of incarceration for each of the two Simple Assault charges. On behalf of her client, Attorney Ebner wrote to the District Attorney and asked him to reconsider for a variety of reasons. Ultimately, because of Attorney Ebner’s representation, this client was approved for the ARD program and has the opportunity to avoid a jail sentence and conviction.

If you’ve been charged with DUI or assault in Reading, PA, you need an experienced criminal attorney on your side. Call our DUI and criminal attorneys at 610-372-5128 or email us at info@enmlaw.com.

Berks County DUI Diversionary Programs

Sunday, November 1st, 2015

Berks County DUI Diversionary Programs

If you’ve been charged with a first-offense DUI, then you may be eligible for the ARD program which you can read more about here. But what happens if you’ve been charged with a second-offense DUI or even a third or subsequent offense? Are there programs available in Berks County? Yes. There are two programs that are available in Berks County. Both are established by statute meaning that they are statewide programs. The first is the Second Time Offender Program (STOP) and the other is DUI Treatment Court. Both programs are run by the Berks County Adult Probation Office.

The STOP program is for those who have been charged which a second-offense DUI within 10 years. Admission into the program is not guaranteed and all applicants are screened and approved or denied. Most participants have been charged with a highest rate DUI which carries a mandatory minimum sentence of 90 days of incarceration, but is also available for those who have been charged with a high rate DUI and are facing a 30 days mandatory minimum sentence. The STOP program allows participants to complete 85 days of an inpatient treatment program or house arrest in lieu of jail time. Participants will still serve some amount of jail time, but it will be significantly less than the mandatory minimum sentence. Prior to sentencing, program participants must complete treatment requirements and maintain contact with the probation office. Applications for this program MUST be made within 3 days of your preliminary hearing.

Berks County DUI Treatment Court is generally for those who have been charged with a third or subsequent DUI within 10 years. Program participants have usually been charged with a highest rate DUI and are facing a mandatory minimum sentence of 1 year of incarceration. The purpose of DUI Treatment court is to allow an offender to participate in court-supervised treatment rather than incarceration. DUI Treatment Court participants are evaluated and a treatment plan is determined. DUI Treatment Court is a multi-phase program and participants graduate to each new level as they complete their requirements. The program takes at least 18 months to complete. All participants are required to attend DUI Treatment Court meetings. Berks County DUI Treatment Court participants will still do some amount of incarceration and will need to complete a period of electronic monitoring (house arrest).
Requirements for applying and completing the Berks County STOP program and DUI Treatment Court are very strict so it is in your best interest to consult with a knowledgeable Berks County DUI attorney as soon as possible. If you think that you may be eligible for a DUI diversionary program, call our office at 610-372-5128 or email us at info@enmlaw.com

Spotlight Issue: First Offense DUI in Berks County

Sunday, May 10th, 2015

Being arrested for a first-offense DUI can be frightening and embarrassing, especially if you haven’t had any involvement with the legal system before. You probably have a lot of questions about what will happen next and our Berks County DUI attorneys are here to answer those questions. Our DUI attorneys will start by representing you at your preliminary hearing in front of a Magisterial District Justice. We will discuss your options with you at that court date and you will decide whether to have a hearing that day or to waive your right to a hearing. You might also apply for the Accelerated Rehabilitative Disposition (ARD) program on that date. Read more about the DUI ARD program here. If your case goes past the preliminary hearing stage, then our DUI attorneys will obtain the evidence that the District Attorney intends to use against you at trial (this is called discovery). Discovery for a DUI can include officer’s reports, results from blood tests and, when available, police dashboard video. We will review the evidence to determine whether the police acted appropriately in your case. For example

-did the police have reasonable suspicion to pull you over
-if you weren’t driving, were you in actual physical control of the vehicle
-were the field sobriety tests administered correctly
-were the blood results obtained correctly

Even though you may not have any prior criminal record, you still might be facing a mandatory 72-hour prison sentence. Our DUI attorneys will evaluate the evidence against you and advise you as to your best option. Whether you decide to enter the ARD program, accept a plea offer or take your case to trial, you need an experienced attorney on your side because the consequences of a DUI conviction can be serious. Contact our Berks County DUI lawyers at 610-372-5128 or email us at info@enmlaw.com.

DUI Law Update

Wednesday, March 11th, 2015

The Pennsylvania Legislature recently closed a loophole in the DUI statute which will result in harsher sentences for repeat DUI offenders. The loophole was created by the Pennsylvania Supreme Court’s decision in Commonwealth v. Haag in 2009. The Court in Haag said that a defendant could not be sentenced as a repeat DUI offender unless he had been sentenced on his prior DUI offense before the subsequent DUI offense occurred. The Haag ruling resulted in defendants receiving significantly reduced sentences for multiple DUI’s because they could be sentenced on multiple DUI’s without facing the recidivist penalties. In other words, a person could hypothetically have two pending DUI cases (technically a first and second DUI) and only be sentenced as having two first DUIs. Therefore, a person would not be penalized for having more than one pending DUI.

In October of 2014, Section 3806 of the Pennsylvania Vehicle Code was amended to state that the look back period for prior convictions is from the time of sentencing on the present DUI. Therefore, if a person has more than one pending DUI, each DUI will count as a subsequent offense. A defendant can no longer be sentenced for multiple first, second or third offenses during the same period of time. Thus, the same person who before had two pending DUIs and was sentenced to two first DUIs, will now be sentenced to a first and second DUI.

These increased penalties mean that it is even more important that you are represented by a competent attorney if you have multiple pending DUI’s. We want to help you. Contact our Berks County DUI lawyers at 610-372-5128 or submit your case using the “Ask an attorney” link.