Time Limit for Blood Preservation in DUI Cases

Must the District Attorney preserve blood drawn in a DUI case?

The District Attorney must put the defendant's lawyer on notice for the amount of time that the District Attorney's Office intends to preserve the blood in a DUI case, then the defense attorney must notify the DA's office if the defense attorney may wish to re-test the blood by their own independent lab.

What is the remedy--is the case tossed? No. The remedy is that the DA must proceed under section a1 general impairment without the blood. The benefit of this type of prosecution is that the penalty is FAR less under general impairment then all of the other types of DUIs.

This is a great way to fight a blood case if your lawyer has a lab to which to send the blood. Best question of month.

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Is a Polygraph Admissible?

Is a polygraph admissible in a criminal case?

Polygraphs can be used in court for certain proceedings but not for trial and not for the ultimate issue in a case. I have seen the polygraph used for violation of probation hears for sex offenders that refuse to admit they sexually assaulted the initial victim in the case. Often, we see people plea no contest in a sex case because the stakes are too high to fight the case. They are then ordered to go to sex offender counseling yet they refuse to admit guilt. They fail the class. The probation officer violates them. They go before the judge to get punished for the violation. The judge can consider the result of a polygraph in this instance, but it is not per se dispositive of the violation.

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Gun and Drug Trial

My wife got arrested after they executed a warrant at my house. She was arrested for guns (VUFA) and drugs (PWID). She went to trial and was found guilty of the PWID. The District Attorney told her that if she doesn't plea guilty to the gun (VUFA), they will seek double the sentence. Why didn't they try her together on the gun (VUFA) and the drugs (PWID) so she wasn't facing crazy double time?

This is a very tough question. In the past we have written about Campana, where you cannot be charged and tried twice for the same occurence because the prosecution is barred due to double jeopardy. Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), aff'd, 455 Pa. 622, 314 A.2d 854 (1974).

However, I have had cases where I have filed a motin to preclude one or the other from case so that the jury wouldn't hear it, thereby negating my own Campana arguement from above. For example, I want to try it as a gun case and I am worried that if they jury hears about all of the cocaine found at the house, they will assume my client is guilty of the gun. It does work, but it is hard to understand unless you see it.

Tough question.

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Concurrency on Mandatory Sentences

"If I have two open cases and both are mandatory minimum cases, can I be sentenced to concurrent time?" -Huntley H.

The short answer is yes, Huntley. Imagine you have two open driving under the influence offenses, both of which count as third offenses, and both of which are one year mandatory minimum cases. This means that if you are convicted on either case, the Judge has no choice but to sentence you to at least one to two years jail.

If you lost both cases, then you would have a mandatory minimum sentence of one to two years on each of them.

It is absolutely possible to get the benefit of a concurrent sentence. The way that this would work in practice is one of the following three ways: First, you could consolidate both cases for guilty pleas before the same judge. Second, you could try one case first. If you lost, you could consolidate the other case for a plea before the same judge. Third, you could try both cases before different judges and ask to hold sentencing hearings on both cases on the same day. The second judge would then get to make the decision whether the time is served concurrently (all at once, together) or consecutively (serve time on one case and start time on the second case after being paroled on the first).

Generally speaking, you maximize the chances for concurrency if you don't bring both cases to trial, but, rather, plead guilty on at least one of them. Then again, you can't beat your case if you plead guilty. The choice in plea should be made only after consultation with an experienced criminal defense attorney, a careful consideration of the risks and benefits for each strategy, and a full exploration of all possible defenses to each case.

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Can the Commonwealth Demand a Jury?

I was arrested for Possession with the Intent to Deliver in Philadelphia. I had a preliminary hearing. I went to arraignment. My case was sent to the felony waiver program. My lawyer told me that we had a good judge and that we should fight the case as a bench trial. When we got to court and we called the case ready, the District Attorney stood up and said that they wanted to do it as a jury trial. The case got sent to another room, then the case got "spun-out" to another room to a different judge and we got a a date for a jury trial 9 months from now. My lawyer now suggested that we make a deal. I thought that defendants and prosecutors are not allowed to judge shop and that sure seems like what is happening to me. Can the Commonwealth demand a jury?

Under Pa. Const. Art. 1, § 6 (2008):

§ 6. Trial by jury


Trial by jury shall be as heretofore, and the right thereof remain inviolate. The General Assembly may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jury in any civil case. Furthermore, in criminal cases the Commonwealth shall have the same right to trial by jury as does the accused.

Therefore, the District Attorney can demand a jury just the same as the Defendant. Note that this may not be the law in every state, but in Pennsylvania the government amended the constitution, so there is no fighting the governments right. Obviously, if you lose, at sentencing the judge will take into account the idea that the District Attorney's office demanded on you and usually lowers your sentence as a result.

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Copyrighting Unlawful Activities?

"Can you copyright something that is illegal? For example, creating a video that explains how to hack a computer?" -Matt B.

Generally speaking, copyright protects artistic and literary creations or expressions. An idea or method of doing something, whether it be unlawfully hacking a website or a recipe for chocolate cookies, is not eligible for copyright. However, the expression of an idea and how that idea is written down in a literary sense could potentially gain copyright protection. My opinion, and please note that I handle criminal cases but am certainly no expert on copyright, is that one cannot obtain a copyright on the literary expression of how to commit an unlawful act.

When I first got this question, I immediately thought of Robert Mapplethorpe's rather risque photographs of nude children. Almost everyone considers those photos as art, and I'm certain they have copyright protection. But let's take it a step further and image that the photographs showed sexually explicit conduct involving children. Well, that's clearly unlawful child pornography. Because it is unlawful even to possess child porn, one clearly could not get copyright protection on such pictures.

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When Will I Get Paroled?

I have 2 years in and I plead to a 2-4 year sentence today. When will I get paroled? Today, tomorrow, next week, when?

Once you are sentenced in the county, you are transported upstate to the custody of the Pennsylvania Department of Corrections. Once in state custody, you must get classified before the sate parole board will review your case for parole. The time line for classification and getting in front of the parole board is about 6 months. If you had no write-ups or violations during your two years in custody, you should be paroled in about 6 months.

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Jury Service...Again

Why did I get called for jury service twice in the last two years and most of my friends have never been summoned?

Jury selection is completely random. Jurors names are pulled both from voter registration and from motor vehicle (PennDOT) records. So, some people are called frequently and some are never called in their lives.

I can tell you this. If you serve on a jury that is at least three days long, your name is taken out of rotation for a period of three years. If you are not put on a jury or you serve on a one or two day jury, your name is taken out of rotation for one year.

One other thought on your friend. If he or she is not a citizen or has ever been convicted of a crime punishable by more than one year, he or she is not eligible for jury service. That's potentially a reason he or she is not called.

My final thought is this: Jury service is one of the most important duties a citizen has. The criminal and civil justice systems cannot function without juries. Most people find that, once they serve on a jury, the experience is extremely rewarding.

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