Under PA law, the police may stop any person to ask questions without any cause of suspicion. This "mere encounter," according to our appellate courts, does not carry with it any particular obligation to stop. However, in the realistic day to day activities in which normal people are involved, most of us stop when asked by a person in authority.
If the person's movement is restricted in any way, on the other hand, a seizure of the person has occurred. Such a seizure must be supported by "reasonable suspicion" of criminal activity. Most of the time, people are stopped and asked for their identification. I always endorse having ID because the police many times detain a person until his or her ID is established, and most normal people have other things to do than argue with the police over this. If the police run the ID and return it to the person, having found nothing to justify further detention, they will then mostly likely announce that the person is "free to leave." This statement has become a judicially-approved method for the police to break off the initial encounter for which they now possess no reasonable suspicion for continued detention, and allows them to re-establish reasonable suspicion for detention on another ground. Thus, when they say you are "free to leave," that is the last thing they hope you do.
When you make a motion to leave, they may very well start asking you other questions to establish separate grounds. Many times this can be as bald as, "Are you carrying anything illegal?", or "Are you carrying anything that we should know about?". Your best answer is to leave while saying, "I am not saying anything without my attorney." Never consent to a search. The courts have held that consent to any police action means that the police no longer have to demonstrate cause. It also frees them to search for anything they want without specifying the items for which they are searching. In any court action afterward, consenting to a search will put your attorney at a decided disadvantage.
The important thing to remember about all of this is that you should keep the card of your attorney handy and call the attorney if there is an encounter with the police. If arrested, the you should say nothing until you speak to an attorney. Just like the old saw about "name, rank and serial number," every person should simply say that they wish to speak with their attorney before saying anything. On my cards, I have printed on the reverse a short version of the above to remind my clients of what to do, as well as my cell phone number in case you find yourself in trouble. Phone the office for one to carry with you!
Monday, June 21, 2010
Monday, December 28, 2009
DUI SENTENCING AFTER HAAG WITH SPECIAL APPLICATION TO BERKS COUNTY
John A. Fielding III, Esquire
A cause of conflicting interpretations after the 1994 amendments to the DUI statute has been the way in which multiple DUI offenses are sentenced under 75 Pa.C.S.A. sec. 3806. As Judge Gantman pointed out in Commonwealth v. Nieves (2007 Pa.Super 299, 935 A.2d 887 (2007)), the statute is “no model of clarity.” The controversy arises from the way in which subsection (a) is read in conjunction with subsection (b). The statute reads, in relevant part, as follows:
"(a) General rule.—Except as set forth in subsection (b), the term “prior offense” as used in this chapter shall mean a conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition within the ten years before the present violation for any of the following:
(1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substances);
….
(b) Repeat offenses within ten years.—The calculation of prior offenses for purposes of sections 1553(d.2) (relating to occupational limited license), 3803 (relating to grading) and 3804 (relating to penalties) shall include any conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition within the ten years before the present violation for any of the following:
(1) an offense under section 3802;"
….
In 2007, the Superior Court decided Commonwealth v. Nieves, supra., in which it held that subsections (a) and (b) were to be interpreted to mean that if a defendant committed any other DUI offenses in the ten year period, those offenses could be considered prior offenses for sentencing purposes. Thus, in Nieves, the defendant had been previously convicted of DUI on June 17, 1998. She was then arrested and charged with DUI (highest rate) on January 28, 2006 and on June 30, 2006. As a result, the defendant was sentenced to 30 to 180 days on the January case and 13 to 60 months concurrent on the June case, with the January case serving as one of the prior offenses. The Superior Court affirmed the sentence on appeal, citing to its then recent decision in Commonwealth v. Stafford, 932 A.2d 214 (2007) because while the defendant was sentenced for both at the same hearing, both offenses constituted “separate and distinct” offenses for sentencing purposes. In a separate concurring statement, Judge Gantman stated that she believed that the definition of the term “prior offense” in subsection (a) was modified by subsection (b), which calculated “repeat offenses” as those occurring within ten years before
Recently, the Supreme Court, in Commonwealth v. Haag, 981 A.2d 902 (Pa.2009), held as follows:
"Thus, for the purposes of applying the recidivist sentencing provisions of the DUI statute, when presented with two or more Section 3802 DUI violations, a sentencing court must first ascertain wither conviction on the first violation occurred before the offender committed the subsequent offense. If no conviction on that previous violation had occurred by the time the offender committed the subsequent violation, pursuant to Section 3806(b), the offender cannot be sentenced as a recidivist on the subsequent violation. To the extent that their holdings are to the contrary, we specifically disapprove of Misner [946 A.2d 119 [Pa.Super. 2008)], Nieves, and Stafford, supra. [Emphasis in the original]"
In Haag, the defendant was stopped at 11:40 p.m. on January 12, 2009 with a BAC of .16 (Highest rate) and released in the custody of his wife. At 1:00 a.m. on January 13, 2009, one and one-half hours after the first arrest, the defendant was stopped a second time with a BAC of .146 (high rate). Defendant filed a motion in limine before a bench trial that the two offenses be considered as two first offenses in accordance with 3806(b). The trial court denied the motion, convicted the defendant and sentenced him to 72 hours to 6 months on the first offense and 30 days to 6 months for the second offense. The sentence on the second offense was stayed pending appeal.
As a result, Haag indicates that for the purposes of sentencing, if a person commits a DUI offense and then commits a second before the disposition of the first (ARD, conviction, etc.), the offenses count as two first offenses for the purposes of sentencing.
Recently, the Berks County Bar sponsored a CLE that discussed the ramifications of the Haag decision for sentencing generally, and in Berks County specifically. In Berks County, all DUIs in the county are referred to the same courtroom for trial and disposition. Present at the CLE was an ADA from the DUI courtroom, the presiding judge (at present, Judge John Boccabella), a supervising adult probation officer, the District Attorney, and a leading criminal defense attorney.
At the present time, the district attorney’s office in Berks is committed to taking each case on a case-to-case basis. The District Attorney did mention that he encouraged attorneys to file applications for ARD even for clients with a prior arrest. On the other hand, Judge Boccabella felt that while Nieves went too far in one direction, Haag went too far in the other direction for a treatment-minded county such as Berks. He was not comfortable handing down a sentence of 48 hours or 72 hours to 6 months concurrent for multiple offenses since he did not believe 6 months afforded enough supervision and treatment time. Therefore, he told defense attorneys to not be surprised if he started handing down consecutive sentences for multiple offenses, even if they were all construed as first offenses.
A cause of conflicting interpretations after the 1994 amendments to the DUI statute has been the way in which multiple DUI offenses are sentenced under 75 Pa.C.S.A. sec. 3806. As Judge Gantman pointed out in Commonwealth v. Nieves (2007 Pa.Super 299, 935 A.2d 887 (2007)), the statute is “no model of clarity.” The controversy arises from the way in which subsection (a) is read in conjunction with subsection (b). The statute reads, in relevant part, as follows:
"(a) General rule.—Except as set forth in subsection (b), the term “prior offense” as used in this chapter shall mean a conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition within the ten years before the present violation for any of the following:
(1) an offense under section 3802 (relating to driving under influence of alcohol or controlled substances);
….
(b) Repeat offenses within ten years.—The calculation of prior offenses for purposes of sections 1553(d.2) (relating to occupational limited license), 3803 (relating to grading) and 3804 (relating to penalties) shall include any conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition within the ten years before the present violation for any of the following:
(1) an offense under section 3802;"
….
In 2007, the Superior Court decided Commonwealth v. Nieves, supra., in which it held that subsections (a) and (b) were to be interpreted to mean that if a defendant committed any other DUI offenses in the ten year period, those offenses could be considered prior offenses for sentencing purposes. Thus, in Nieves, the defendant had been previously convicted of DUI on June 17, 1998. She was then arrested and charged with DUI (highest rate) on January 28, 2006 and on June 30, 2006. As a result, the defendant was sentenced to 30 to 180 days on the January case and 13 to 60 months concurrent on the June case, with the January case serving as one of the prior offenses. The Superior Court affirmed the sentence on appeal, citing to its then recent decision in Commonwealth v. Stafford, 932 A.2d 214 (2007) because while the defendant was sentenced for both at the same hearing, both offenses constituted “separate and distinct” offenses for sentencing purposes. In a separate concurring statement, Judge Gantman stated that she believed that the definition of the term “prior offense” in subsection (a) was modified by subsection (b), which calculated “repeat offenses” as those occurring within ten years before
Recently, the Supreme Court, in Commonwealth v. Haag, 981 A.2d 902 (Pa.2009), held as follows:
"Thus, for the purposes of applying the recidivist sentencing provisions of the DUI statute, when presented with two or more Section 3802 DUI violations, a sentencing court must first ascertain wither conviction on the first violation occurred before the offender committed the subsequent offense. If no conviction on that previous violation had occurred by the time the offender committed the subsequent violation, pursuant to Section 3806(b), the offender cannot be sentenced as a recidivist on the subsequent violation. To the extent that their holdings are to the contrary, we specifically disapprove of Misner [946 A.2d 119 [Pa.Super. 2008)], Nieves, and Stafford, supra. [Emphasis in the original]"
In Haag, the defendant was stopped at 11:40 p.m. on January 12, 2009 with a BAC of .16 (Highest rate) and released in the custody of his wife. At 1:00 a.m. on January 13, 2009, one and one-half hours after the first arrest, the defendant was stopped a second time with a BAC of .146 (high rate). Defendant filed a motion in limine before a bench trial that the two offenses be considered as two first offenses in accordance with 3806(b). The trial court denied the motion, convicted the defendant and sentenced him to 72 hours to 6 months on the first offense and 30 days to 6 months for the second offense. The sentence on the second offense was stayed pending appeal.
As a result, Haag indicates that for the purposes of sentencing, if a person commits a DUI offense and then commits a second before the disposition of the first (ARD, conviction, etc.), the offenses count as two first offenses for the purposes of sentencing.
Recently, the Berks County Bar sponsored a CLE that discussed the ramifications of the Haag decision for sentencing generally, and in Berks County specifically. In Berks County, all DUIs in the county are referred to the same courtroom for trial and disposition. Present at the CLE was an ADA from the DUI courtroom, the presiding judge (at present, Judge John Boccabella), a supervising adult probation officer, the District Attorney, and a leading criminal defense attorney.
At the present time, the district attorney’s office in Berks is committed to taking each case on a case-to-case basis. The District Attorney did mention that he encouraged attorneys to file applications for ARD even for clients with a prior arrest. On the other hand, Judge Boccabella felt that while Nieves went too far in one direction, Haag went too far in the other direction for a treatment-minded county such as Berks. He was not comfortable handing down a sentence of 48 hours or 72 hours to 6 months concurrent for multiple offenses since he did not believe 6 months afforded enough supervision and treatment time. Therefore, he told defense attorneys to not be surprised if he started handing down consecutive sentences for multiple offenses, even if they were all construed as first offenses.
Thursday, December 24, 2009
Subscribe to:
Posts (Atom)