Frequently Asked Questions
Can I appeal a denial of ARD?
In Pennsylvania, the prosecutor, normally the district attorney or an assistant district attorney, determines whether or not a person is approved to participate in ARD. The person seeking admission into ARD must normally submit an application or some request to the prosecutor for consideration. If the prosecutor approves ARD, then everyone is happy. But what happens if the prosecutor says no. No Appeal of ARD Denial When people think of the court system, they believe that the judge always has the ultimate decision making authority. In the context of an ARD denial, people expect that a judge should be able... Learn More
Must I report a criminal charge to the Pennsylvania licensing board if I received ARD?
As of April 15, 2018, the answer is most likely yes. On April 15th of 2018, Pennsylvania legislature law, P.L. 14, No. 6 became effective and requires a “licensee,” meaning a person issued a professional license from the Pennsylvania Bureau of Professional and Occupational Affairs, to report an Accelerated Rehabilitative Disposition (ARD), verdict of guilt, admission of guilt, plea of nolo contendre, or acceptance of Probation Without Verdict (PWOV) of any felony or misdemeanor offense to the appropriate licensing board within 30 days of that resolution being accepted by the court. To be clear, the triggering factor for reporting to the... Learn More
Do I Need to Report Expunged Charges on an ARD Application
Many Pennsylvania ARD applications contain a question that requires applicants to report prior charges even if those charges have been expunged or sealed. Obviously, if an applicant reports prior offenses or prior charges, such information will be considered by the district attorney when reviewing the ARD Application and are likely to reduce the probability of being approve for ARD. An ARD applicant clearly does not want to over report priors. However, if an applicant fails to report information, the omission is likely to result in denial of ARD and may even result in additional criminal charges. Many ARD Applications require... Learn More
What happens if I violate ARD conditions or fail to complete requirements?
Failure to Complete Requirements Successful completion of ARD allows a person to have charges dismissed and then go through the expungement process to have the case removed from the government records, but the person must comply with ARD rules and complete requirements in order to successfully complete the ARD program. People often violate ARD by getting into trouble again and having new criminal charges. Other people fail to complete ARD requirements by the deadlines. In either situation, a violation of ARD rules or a failure to complete requirements can cause the district attorney to file ARD revocation paperwork with the... Learn More
What are the conditions and requirements of ARD?
The "punishment" or conditions and requirements of ARD are often relatively severe and onerous. The requirements will vary from county to county and will vary depending upon the precise criminal charges and the factual basis for the charges. Almost all ARD programs impose a period of supervision by the probation department, payment of ARD costs and fees, and completion of community service. As may be expected, drug and alcohol-related cases often require completion of drug and alcohol counseling, and assault cases often require completion of anger management programs. While many counties have similar ARD conditions and requirements, differences often arise... Learn More
What is ARD?
ARD is the acronym for the Accelerated Rehabilitative Disposition program and is the generic phrase used for first-time offender programs in counties across Pennsylvania. ARD can be explained as a "probation without verdict" type of program, meaning a program that imposes a punishment ordered by the court but does not result in a conviction of the offense. Normally, a person only receives a sentence or punishment from the court if the person pleads guilty to or is convicted of a criminal charge. By being convicted or pleading guilty to the criminal charge, a person has a criminal record that will... Learn More
Can I get ARD for my DUI charge?
Eligibility for ARD Program for DUI Charges The ARD consideration process takes two steps - legal eligibility and then case suitability. The first step is that a person must be eligible under the law. In DUI cases, the law prohibits some people from being considered for the ARD program. More specifically, 75 Pa.C.S. 3807 prohibits ARD consideration if: the person has a prior conviction or ARD disposition for a DUI offenses within 10 years of the current DUI incident the person had a passenger in the car that was under the age of 14 that was an accident and someone... Learn More
Why do charges appear on a background search after I completed ARD?
Expungement Is NOT Automatic Successful completion of ARD gives a person the ABILITY to have charges dismissed and expunged. While some county court systems do dismiss and expunge a person's record upon completion of ARD, MOST do not. If the court court does not take care of the expungement automatically, then the person must file the appropriate dismissal and expungement paperwork with the Clerk of Courts. If the person does not file the required paperwork, the charges remain pending and can appear on criminal background searches. It is only through the expungement process that the charge or case information is... Learn More
My criminal charges were expunged, why did they appear on a background search?
Expungement Limited to Government Records A person that successfully completes ARD is normally given the ability to seek the dismissal and then expungement of the charges. The expungement does not generally occur automatically but instead requires the person to go through the expungement process. The expungement process will remove most information about the case from the government's systems. The government is permitted to retain some records, primarily for future ARD consideration purposes, meaning the government is permitted to retain some records so that a person does not repeatedly receive an ARD resolution. While the government records are destroyed through the... Learn More
Do I need a lawyer to get ARD?
“He who represents himself has a fool for a client” Many people believe that Abraham Lincoln is one of the greatest presidents in American history, and he is credited with the phrase above. When considering whether or not a person "needs" a lawyer, you must realize that the lawyer a service, just like an electrician or a mechanic. In some situations, a little Do-It-Yourself or DIY is okay. In your home, you don't need an electrician to change a light bulb, and you don't need a mechanic to put air in your tires. Simple DIY tasks can be done safely... Learn More
Why I am being charged with Aggravated Assault or Simple Assault when I was simply defending myself?
Aggravated Assault or Simple AssaultThe decision on whether to file charges or not is often left to the discretion of the police officers investigating the assaultive conduct. There are times that police officers will seek guidance from the district attorney's office and file assault charges based upon the recommendations of the district attorney. In many instances, unless a case is clearly self-defense, the police often file Simple Assault or Aggravated Assault charges against some or all of the participants in the fight. At the scene, officers make initial credibility determinations as to which people or witnesses that the officers believe... Learn More
Why was I charged with Aggravated Assault and not just Simple Assault?
In the Commonwealth of Pennsylvania a charge of Aggravated Assault is graded as a felony, whereas Simple Assault is graded as a misdemeanor. Generally, the distinction between the charges is based upon the severity of the injury inflicted or the severity of the injury that was intended to be inflicted upon the victim.Serious Bodily InjuryMore specifically, a charge of Aggravated Assault generally requires that the assault suspect either caused or intended to cause a "serious bodily injury," and a charge of Simple Assault only requires evidence that the assault suspect either caused or intended to cause a "bodily injury." Pennsylvania... Learn More
Why didn’t the police talk to me to get my side of the story in the assault investigation?
This question is routinely asked by people charged with Simple Assault or Aggravated Assault in Centre County and other counties in Pennsylvania. Many assault cases, both Simple Assault and Aggravated Assault, are often "he-said-she-said" type of cases, meaning that many assault cases are not recorded on video or were not entirely viewed by an uninvolved party. Most of the witnesses to a fight are often friends of one side or the other and thereby not neutral. While people expect that the police would speak with both sides and thereby conduct a very thorough investigation, it appears that many times the... Learn More
Do I have to prove self-defense at trial, or does the district attorney have to prove that I didn’t act in self-defense?
Centre County Criminal Trial Attorney Self-defense, also called "justification" in Pennsylvania, is an affirmative defense, meaning that the person charged with Simple Assault or Aggravated Assault must present some evidence, from whatever source, to justify consideration of the self-defense issue at trial. Technically, the person charged with assault does not need to actually prove that he acted in self-defense, but the person must present some evidence that supports the defense in order to allow a judge or jury to consider the defense at trial. This means that the criminal defense attorney may present evidence, such as testimony from either the... Learn More
How can I be charged with assault if the victim did not suffer a bodily injury?
Many people mistakenly believe that grading and severity of assault charges are dependent upon whether or not the victim was hurt. A person can be charged with assault based upon the person's intent to cause either a "bodily injury" or "serious bodily injury." In some cases, a person charged with assault threatens the victim and thereby verbally provides direct evidence of intent. If the threat to harm another is not followed by any action to actually inflict the harm, then the person may not be charged with an assault but would instead by charged with terroristic threats.In most assault cases,... Learn More
I have never been in trouble before, am I eligible to participate in a first-time offender program like ARD for my assault charges?
State College First Time Offender Programs and Assault Charges It depends. While some Pennsylvania laws or rules do exclude some people from being eligible for ARD consideration, the majority of eligibility decisions regarding ARD are made by the district attorney for the county in which the charges are filed. As a general rule, relatively minor misdemeanor offenses such as Possession of a Small Amount of Marijuana, Possession of Paraphernalia, Furnishing Alcohol to Minors, DUI, and some Theft cases are often eligible and approved for ARD if the ARD applicant is a first-time offender. In some situations and in some counties,... Learn More
Marijuana is legal in the state in which I reside and I have a permit to possess it, so I how can I be charged with illegal possession of marijuana in Pennsylvania?
Possession of Marijuana Attorney State College By Jason Dunkle on G+ Every state has criminal laws that control what can and cannot be done within that state's boundaries. While marijuana possession and use is legal in some states, possession is not permitted in the state of Pennsylvania. Even if a person has a valid prescription for marijuana in California, said prescription does not permit a person to possess marijuana in the state of Pennsylvania. Under Pennsylvania law, it is a misdemeanor offense to possess marijuana, and whether or not a person is prosecuted is at the discretion of the prosecution... Learn More
Can I get ARD for a felony drug charge?
ARD for a felony drug case? Accelerated Rehabilitative Disposition (ARD) is a pretrial diversionary programs in Pennsylvania that allows a person to obtain a dismissal and an expungement of all charges in a criminal case. The program basically requires a person to accept a punishment from the court, and upon completion of the punishment, the charges can be dismissed and then expunged. Most county courts do NOT expunge a record for the person. Instead, the person must go through the expungement process. People facing a felony drug charge would often love to be admitted into ARD or PWOV, but that... Learn More
How can I be charged with possession with intent to deliver when the police only found a small amount of drugs?
Felony Intent to Deliver versus Misdemeanor Personal Use The key distinction between a misdemeanor and felony drug possession charge is the person's intent, meaning did the person possess the drug with the intent to ingest or use it OR did the person possess the drug with the intent to deliver it to someone else. The former is a misdemeanor offense, whereas the latter is a felony charge. The quantity of the drug is a huge factor that is considered in determining whether or not a person possessed for personal use or for distribution, but quantity is only one factor. Other... Learn More
Is an officer’s belief or suspicion that an odor of marijuana was coming from a Penn State dorm room or State College apartment sufficient “probable cause” to justify issuance of a search warrant?
Possession of Marijuana Criminal Defense AttorneyBoth the Pennsylvania and United States Supreme Courts have held that the odor of marijuana is sufficient to allow the police to request and receive a search warrant. More specifically, in 1948, the United States Supreme Court stated in the case of Johnson v.United States that "if the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant." Penn... Learn More
How can the district attorney attempt forfeit money that they cannot prove was the proceeds of illegal activity?
Attempt Forfeit MoneyIn some drug delivery cases, the district attorney or Attorney General seeks to forfeit property that is believed to have been used in relation to drug activity. Forfeiture is a civil proceeding in which the state attempts to take title or ownership of property based upon the property's relation to criminal activity. For example, if a car were used to transport drugs from one location to another, or if marijuana was grown in a house, the district attorney may seek to forfeit the car and the house as those items were used to facilitate a crime.Another example of... Learn More
How can the police obtain a search warrant to search an entire house, apartment, or Penn State dorm room when drugs or drug paraphernalia were only observed in one room?
Penn State Criminal Defense Lawyer By Jason Dunkle on G+ Generally, the police are permitted to seek and obtain a search warrant that allows them to search an entire single unit dwelling. For example, if the police smell the odor of marijuana coming from a Penn State dorm room, they can obtain a warrant to search the entire dorm room. If the police arrive at an apartment party and see a marijuana pipe on the kitchen counter, they can obtain a warrant to search the entire apartment. While such searches are generally permitted, issues can arise if the apartment or... Learn More
How can I be charged with possession of alcohol by a minor when the officer did not test the liquid?
Pennsylvania law prohibits a minor, meaning someone under the age of 21, from possessing "any liquor or malt or brewed beverages." Section 6310.6 of the Crimes Code defines both "liquor" and "malt or brewed beverages," and both definitions require that the liquids "contain more than 0.50% of alcohol by volume." This means that in order to be convicted of underage possession of alcohol, the prosecution must prove beyond a reasonable doubt that the minor possessed alcohol that was .50% of alcohol. Many people, including some attorneys, believe that the police must send a liquid to a forensic lab for testing... Learn More
How can I be charged with possession of drugs or paraphernalia when I was not present at my apartment when the search warrant was executed and the items were discovered?
Centre County Possession of Drugs LawyerPolice officers routinely search residences and apartments for drugs and paraphernalia when few or any residents are present after securing search warrants. If drugs, paraphernalia, or other contraband is found, the police often charge some or all of the residents with possession. A common situation occurs when State College or Penn State police search a dorm room or apartment and find drugs or paraphernalia. If the contraband is found in a bedroom or on one roommate's side of the room, then the police look for evidence as to identity of the occupant of the room... Learn More
How can I be charged with possession of drugs or paraphernalia when nothing was found on me and there is no proof that it belongs to me?
Pennsylvania Misdemeanor Drug Possession LawyerUnder Pennsylvania law, there are two types of possession, actual and constructive. Actual possession is when something is found on a person, such as a wallet being found in a person's pocket. Constructive possession means that a person was aware of the existence of an item and had the ability to exercise dominion or control over that item. As an example of constructive possession that routinely happens in a State College apartment or in a Penn State University dorm room, assume law enforcement obtain lawful entry into the apartment or dorm room and find numerous individuals... Learn More
How can I be charged with a felony when I was only growing marijuana plants for personal use?
With a general charge of possession of a drug, if the drug is possessed for personal use, then it is graded as a misdemeanor offense. If the district attorney believes that the possession was with the intent to deliver the drug, then the offense is graded as a felony charge. While the "personal use" or "intent to deliver" issue is very important in a felony case of Possession With Intent to Deliver, such a distinction does not matter with a charge of manufacturing. Growing marijuana is considered to be "manufacturing" and is automatically a felony offense. It does not matter... Learn More
How can I be charged with delivery of drugs when the only witness was a confidential informant?
Being Charged with Delivery of Drugs While it may not seem fair or appropriate, criminal charges can be based upon the testimony of another person. Many cases are "he said, she said" or "he said, he said" types of cases. Also, most drug delivery cases are not based solely upon the testimony of confidential informants. Many drug delivery cases in Centre County are the products of "controlled buys" of drugs from drug delivery targets. A controlled buy of drugs is a purchase of drugs by an undercover police officer or confidential informant at the direction and supervision of the police.... Learn More
How can I be charged with selling drugs when I did not receive any money?
Drug Delivery and NOT Sale Everyone knows that it is illegal to sell drugs, but some people mistakenly believe that it is the sale and not just the delivery or giving of drugs to another person that is the criminal act. This leads people to believe that the police must have evidence that money was exchanged during a drug delivery. That is simply not the law. The law punishes the delivery or distribution of drugs and does not focus on whether or not the drugs were sold or given in exchange for money or property. The criminal charge in Pennsylvania... Learn More
How can I be charged with drug delivery if the police did not test the drugs?
What if the Police do not have the drugs? Most drug delivery charges are based upon "controlled buys," which are purchases of drugs by a Confidential Informant (CI) from a target that are done under the supervision or control of the police. The police give the CI buy money, the CI gives the buy money to the target in exchange for drugs, the drugs are then given to the police, the police send the drugs to a lab for forensic testing, and the lab then issues a report advising whether or not the substance was in a fact a drug. ... Learn More
Can I have a felony drug conviction expunged?
For practical purposes, the answer is no. The exungement process in Pennsylvania is NOT based upon need or want. A felony conviction may prevent a person from getting a job, but that does not mean that the person can obtain an expungement. In order to seek an expungement, the law must expressly allow it. The expungement law in Pennsylvania allows a felony to be expunged ONLY if: 1) person has been dead for 3 years; OR 2) if the person is 70 years old and has not been convicted of a new offense within 10 years of completion of the... Learn More
Does a conviction of delivery or possession with intent prohibit gun possession or purchases?
Pennsylvania Drug Delivery Defense Lawyer No, you are not allowed to have a firearm if you have been convicted of delivery or possession with intent to deliver in Pennsylvania. Both Federal and Pennsylvania laws prohibit a person with a felony drug conviction from possessing or attempting to purchase a firearm. Section 6105 of the Pennsylvania Crimes Code expressly prohibits a person convicted of a charge under the Controlled Substance, Drug, Device and Cosmetic Act that have a maximum sentence exceeding two years from possessing, using, manufacturing, controlling, selling, or transferring firearms. Federal law under 18 U.S.C. 922(g) only prohibits a... Learn More
What sentence am I facing for a Pennsylvania DUI?
Mandatory Minimum Sentences for Pennsylvania DUI Convictions A person convicted of Driving Under the Influence in Pennsylvania faces relatively severe mandatory minimum penalties that often include fines, jail time, license suspension, treatment programs, and installation of the ignition interlock systems. People mistakenly believe that a judge has the power to ignore mandatory sentences. They expect that they can appear before the judge, plead for leniency, explain that a lengthy license suspension or jail time will result in a loss of a job and an inability to pay bills and support a family. Regrettably, while those things are true and can... Learn More
Can I get a limited license for my Pennsylvania DUI suspension?
Ignition Interlock Limited License (IILL) Eligibility Most people that accept ARD or are convicted of a Pennsylvania DUI face a mandatory license suspension. People often need to be able to drive in order to work, take care of children, and attend the counseling or DUI classes that are required. The Ignition Interlock Limited License (ILL) may be available to allow a person to drive anywhere and at any time. In the past, "limited" licenses often limited when and where a person could drive, meaning a person could normally only drive to and from work, medical appointments, or religious activities. Now,... Learn More
How long will my license be suspended for my Pennsylvania DUI?
In Pennsylvania, the penalties for a DUI are primarily based upon the tier level of the offense, the number of prior offenses, and whether the person is convicted or accepts ARD. There are three levels or tiers of penalties. For alcohol DUIs, the higher the blood alcohol level, the more severe the punishment. With a blood alcohol level of less than .10%, the charge is under the first tier and falls under 3802(a). With a blood alcohol level of more than .10% but less than .16%, the charge is under the 2nd tier and falls under 3802(b). With a blood... Learn More
What is a “prior offense” of DUI in Pennsylvania?
Determining whether or not a person has a “prior offense” is extremely important in Pennsylvania DUI cases because prior offenses substantially increase the severity of the DUI charge and thereby directly impact the range of sentences, including jail time, fines, and license suspensions, that a person will face. What is considered a “prior offense” for DUI charges in Pennsylvania has changed over the years. What may have been the law a few years ago may not be the law of Pennsylvania now. Interpreting 10-Year Look Back Window It must be emphasized that there is a difference between prior offenses for... Learn More
Chemical Test Refusal Q+A
An "implied consent law" basically states that any person who drives, operates, or is in actual physical control of the movement of a vehicle in Pennsylvania "consents" or agrees to submit to a chemical test to determine if the person has drugs or alcohol in their body. Pennsylvania's Implied Consent law is found at 75 Pa.C.S. 1547 and allows a police officer to require that the driver submit to a blood or breath test if the officer has "reasonable grounds" to suspect that the driver is: violating the DUI law under 75 Pa.C.S. 3802 driving on a DUI-suspended license and... Learn More
What are the ARD requirements for a DUI offense?
The basic idea behind the Accelerated Rehabilitative Disposition (ARD) program is that person pleads "not guilty" to the DUI charges, but the person agrees to comply with certain rules and complete requirements in order to complete the ARD program. Upon completion, the person can go through the expungement process to have the DUI charges removed from the criminal record, but a notation WILL remain on the person's driving record to track the ARD resolution as being a "prior offense" of DUI in Pennsylvania. In order to get the charges the dismissed, the person must successfully complete ARD. ARD Requirements for... Learn More
Why should I consult or hire a lawyer when my blood alcohol level was above the legal limit, so I am clearly guilty of the DUI offense?
Guilty of a DUI Another commonly held misconception is that a person charged with DUI cannot challenge a case if he or she submitted to a blood test. Admittedly, cases in which the DUI suspect submitted to a blood test and the test evidences a blood alcohol or controlled substance concentration above legal limits are difficult to defend. Generally, in order to win these cases, the defense lawyer must keep the test results from being admitted into evidence at trial. In some cases, the defense attorney may file a pre-trial motion and seek suppression of evidence by arguing that the... Learn More
The officer told me that I would get ARD for my DUI charges, so why should I talk to or hire a DUI defense lawyer?
DUI Defense Attorney The better question is why would you not talk to a lawyer when you are charged with a criminal offense. First, most Pennsylvania criminal defense lawyers offer free consultations, so it will not cost you anything to have an experienced Centre County DUI attorney review your case. Second, while the officer may have been nice, the officer's primary role in the criminal process is to assist the district attorney with the prosecution of the charges against you. If the officer was really that "nice," then why were you charged with DUI as opposed to being driven home... Learn More
I was arrested last night for a suspected DUI, submitted to a blood test after being taken to the hospital, but the officer released me without filing any charges or giving me any paperwork. Am I going to be charged with DUI?
Being Released with No Charges Most Centre County DUI cases and DUI cases across Pennsylvania occur in the above referenced manner. Whether or not the DUI suspect will be charged with DUI charges is often dependent upon the results of the blood alcohol test. If the DUI suspect's blood alcohol concentration is above the legal limit, then it is highly likely that DUI charges will be filed. Generally, since DUI charges in Pennsylvania are misdemeanor offenses, the charges are filed with a Magisterial District Judge and then issued by a Writ of Summons. This simply means that the charges and... Learn More
How can the police officer charge me with DUI when they did not see me driving?
While we generally refer to the offense of DUI as Driving Under the Influence, Pennsylvania law actually prohibits a person from driving, operating, or being in actual physical control of the movement of a vehicle after consuming a sufficient amount of drugs or alcohol. The phrase "actual physical control" is not defined in the DUI law but has been explained in many Pennsylvania cases. For example, a person was found to be in actual physical control of a vehicle to justify a DUI charge when the car was parked on the berm of a road approximately fifty yards from the... Learn More
Can I have the charges dismissed because the officer did not tell me why I was being arrested and did not Mirandize me?
Officer Failed to Mirandize You In a typical Centre County DUI case, the police stop a vehicle, order the person to exit the vehicle, administer field sobriety tests, possibly issue a breath test at the scene, arrest the person, take them to the hospital to submit to a blood test, transport them to the processing center for fingerprints and mugshots, and then released the person. and then make the decision to arrest the DUI suspect and transport them for either a blood or breath test to determine blood alcohol concentration. It is very rare that the officer will issue Miranda... Learn More
Does completion of ARD for my DUI offense automatically result in the expungement of the charges from my record?
Expungement of Charges for Completion Successful completion of ARD gives a person charged with DUI the ability to have charges dismissed and expunged. Many people make the mistake of believing that the court or probation department will complete the dismissal and expungement process for them. Centre County, like most counties in Pennsylvania, do not complete the expungement process for a DUI defendant. Instead, the person must file a Motion to Dismiss, and, upon having the charges dismissed, a Petition to Expunge must be filed to have the dismissed DUI charges expunged. If the appropriate paperwork is not filed, then, not... Learn More
Can I avoid the license suspension by participating in ARD?
DUI License Suspension By pleading guilty or being convicted of a Driving Under the Influence charge in Pennsylvania, even a first time offender, most people face a 12 month license suspension. Many first time offenders are eligible to participate in the Accelerated Rehabilitative Disposition (ARD) Program. Participation in ARD avoids a conviction and thereby many of the mandatory minimum penalties associated with a conviction, like the mandatory jail time and mandatory fines. However, with the license suspension, it is not avoided but is instead substantially shortened. Instead of being a 12 month suspension, most people that accept ARD face a... Learn More
What Are Field Sobriety Tests?
According to the National Highway Traffic Safety Administration (NHTSA) website, NHTSA sponsored research that led to the development of field sobriety tests in 1975 and those tests have been used in driving under the influence investigations since 1981. In a DUI investigation, the police often administer Standardized Field Sobriety Tests (SFSTs) to develop probable cause and basically determine whether or not the driver is going to be arrested and required to submit to blood alcohol testing. The tests consist of the Walk-and-Turn, the One Legged Stand, and the Horizontal Gaze Nystagmus (HGN). The HGN or eye test is an involuntary... Learn More
I have a prior DUI, but the officer only charged me with a first offense DUI. Did the officer make a mistake and can the charge be changed in the future?
First Offense DUIIn Centre County, most, if not all, DUI charges are filed as first offenses on the Police Criminal Complaint that is filed by the officer with the district court. For people that have prior offenses of DUI within the last ten years, they are happy to see that the charge is a "first offense" and hope that neither the police nor the district attorney discovers the error. The first and most important issue to address is that a person charged with DUI should NOT tell the police officer about prior offenses. In the criminal system, a person is... Learn More
I was told that my DUI charges were expunged after I completed ARD, but the DUI charges appeared on a criminal background search. How could this happen and what can be done?
Charges on a Criminal Background SearchThe prosecuting attorney, the Pennsylvania State Police central repository, and the court are permitted to retain the names and criminal history record information of people charged with DUI and other criminal offenses that completed a pretrial or post-trial diversion or probation program and the court has ordered expungement of the records. The information is only to be used for purposes of determining eligibility for programs such as ARD in the future, identifying persons in criminal investigations, or for determining the grading of subsequent offenses. The information is available to any court or law enforcement agency... Learn More
How can the police charge me with a DUI when I refused the blood test or when my blood alcohol concentration was below the legal limit?
Being Charged with a DUIWhile DUI charges in Centre County are often based upon the amount of alcohol or controlled substances in a person's blood, Pennsylvania law allows an officer to file a charge that alleges that the DUI suspect had consumed or ingested a sufficient amount of alcohol or controlled substance so that the suspect was rendered incapable of driving safely. In a case in which the DUI suspect refused to submit to a blood test, the officer would not have direct evidence of the amount of alcohol or controlled substance in the DUI suspect's blood, but the officer... Learn More
How can I be charged with DUI when I was riding a bike and not driving a vehicle?
Some Penn State students and State College residents believe that they are doing the right thing by riding their bike home instead of getting behind the wheel of a vehicle after a night of drinking alcohol. The Pennsylvania Vehicle Code, which includes the DUI law, prohibits a person from violating the traffic laws while driving or operating a "vehicle." The term "vehicle" is defined in the Vehicle Code as a device upon which any person may be transported, which would include a bike. Penn State students often use bikes, skateboards and other alternative transportation methods to travel to and from... Learn More
How can I be charged with a DUI if I was driving on private property and not on a highway?
The majority of Pennsylvania traffic laws, like stopping at stop signs and using turn signals when turning, only apply when a person is driving on a "highway." The technical definition of "highway" is the "entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel" and includes "a roadway open to the use of the public for vehicular travel on grounds of a college or university or public or private school or public or historical park." (See 75 Pa.C.S.A. 102). What does this... Learn More
How can I be charged with DUI when I only took prescription medications or took lawful over-the-counter medications?
Getting Charged While Taking Legal MedicationsThe DUI law in Pennsylvania prohibits an individual from being under the influence of a drug or combination of drugs to a degree which impairs the individual's ability to safely drive or operate a vehicle. Many common prescription and over-the-counter drugs can cause impairment and affect a person's ability to drive. If an officer believes that driver impairment is caused by drug use, the officer will often question the person about the types and amounts of medications and may thereafter request that the person submits to a blood test. If the officer believes that the... Learn More
Do the Police Need Probable Cause to Conduct a Traffic Stop?
On behalf of Jason Dunkle at JD Law PC The answer is that it depends upon the violation for which the police are conducting a traffic stop. Pennsylvania law actually states that a police officer can conduct a traffic stop if the officer has reasonable suspicion to believe that a violation of the Vehicle Code has occurred (See 75 Pa.C.S. § 6308(b)). Reasonable suspicion is a slightly lower standard when compared to probable cause, which means that a lower burden of cause is required to conduct a traffic stop under reasonable suspicion when compared to probable cause. While the law says... Learn More
How can I be charged with a DUI when I was not high while driving?
Per Se DUI Laws Pennsylvania's DUI law prohibits a person from driving, operating, or being in actual physical control of a motor vehicle with any amount of a Schedule I, II, or III controlled substance or a metabolite of such substance in his or her blood. While the DUI law prohibits a person from having "any amount" of a controlled substance in the blood, the Department of Health is actually required to prescribe minimum levels of controlled substances that must be found in the blood for the test results to be admissible in a DUI prosecution. The minimum levels of... Learn More
Can I have the DUI charge expunged from my Pennsylvania driving record?
Successful completion of ARD generally allows a person to have the charges dismissed and expunged if the appropriate paperwork is filed with the court. In DUI cases, the criminal record can be expunged but a notation of participation in the ARD program does remain on a person's Pennsylvania driving record for at least the next 10 years. ARD Counts as Prior Offense of DUI Participation in the ARD program counts as a "prior offense" of DUI in Pennsylvania. Therefore, if a person violates the Pennsylvania DUI law within 10 years of the date of ARD acceptance for a prior DUI,... Learn More
Is it legal to turn away from a Pennsylvania DUI checkpoint
Yes. A driver is permitted to turn away from or avoid driving through a DUI checkpoint as long as he or she does so in a lawful manner and before actually entering the checkpoint. In the case of Commonwealth v. Scavello, 734 A.2d 386 (Pa. 1999), the Pennsylvania Supreme Court discussed this very issue in a case in which a driver made a lawful U-turn to avoid entering a checkpoint. An officer stopped the driver solely because the driver had turned away from the checkpoint, and the officer discovered that the driver was underage and had been drinking. The driver... Learn More
Do I have to do field sobriety tests for a DUI stop in Pennsylvania?
Police officers routinely request that suspected drunk drivers complete Standardized Field Sobriety Tests (SFSTs), which include the One-Legged Stand, Walk-and-Turn, and Horizontal Gaze Nystagmus (eye test). A Pennsylvania driver is NOT required to complete those field sobriety tests, and there is NO punishment for refusing testing. The police are permitted to try and convince drivers to take the tests, including telling a driver that "if you pass, I will let you go," or "if you are not drunk, prove it by taking the tests." In order to arrest a suspected drunk driver and require the driver to submit to a... Learn More
What is an Order for Limited Access?
Sealing a Criminal Record - Order for Limited Access In Pennsylvania, an Order for Limited Access is basically what other states call the "sealing" of a record, meaning a record of the convictions still exist, but the records are not publicly accessible. Therefore, if a person obtains an Order for Limited Access, then the prior convictions should be sealed and thereby should not appear on criminal background searches. Section 9121(b)(3) of the Crimes Code expressly states that a “court or the Administrative Office of Pennsylvania Courts may not disseminate to an individual, a noncriminal justice agency or an Internet website... Learn More
Can I seal my record in Pennsylvania?
Seal a Pennsylvania Record - Order for Limited Access Eligibility A criminal record can prevent a person from getting a job, so many people want to know if they can get rid of a record through an expungement or sealing of the record. In Pennsylvania, a person convicted of a misdemeanor offense normally cannot obtain an expungement of the records. The next best thing to an expungement is to have the record sealed from public view, which requires a person to obtain an Order for Limited Access. Orders for Limited Access are not granted upon the need of a person, meaning a... Learn More
How do I seal a criminal record in Pennsylvania?
Sealing a Pennsylvania Criminal Record In order to seal a criminal record from public view in Pennsylvania, a person would need to obtain an Order for Limited Access. If a record is sealed, it means that the record is not publicly accessible and should not appear on future criminal background searches conducted by employers or landlords. While everybody wants to seal a criminal record, not every person with a conviction is eligible to obtain an Order for Limited Access. For example, in Pennsylvania, a person with a felony conviction can NOT obtain an Order for Limited Access, and the only... Learn More
What is the difference between an expungement and the sealing a record?
Expungement or Sealing a Record in Pennsylvania In Pennsylvania, the expungement of a record means that the record is destroyed and removed from government databases. With sealing, technically called an Order for Limited Access in Pennsylvania, the record still exists but it is not publicly accessible. If a record is expunged, then no record should exist, and people cannot see or find a record that does not exist. With a sealed record, the public cannot see the record, meaning such records should not appear on criminal background searches. However, the police, prosecutors, and judge can generally see and consider such... Learn More
How does the expungement process work in Pennsylvania?
Not everyone is able to obtain an expungement. The granting of an expungement is based upon legal eligibility and NOT need based, meaning the fact that you cannot obtain a job, cannot obtain an apartment, or the record is somehow holding you back does not matter. While a judge may feel bad that a prior record is preventing a person from getting a job and supporting a family, the judge is not permitted by law to grant an expungement unless the person is legally eligible. Am I Eligible to Seek Expungement? Step one in the expungement process is to determine... Learn More
Can I expunge my driving record in Pennsylvania?
In most situations, the answer is no. In order to be eligible to expunge a record, the law must expressly permit it, meaning a person cannot simply file an expungement petition, appear before a judge, and explain to the judge why the person needs to have a record expunged. Many people believe that a judge has the ability to order an expungement whenever the judge deems that it is appropriate. Regrettably, a judge's power is limited by Pennsylvania law, and the law only allows a judge to expunge records in certain circumstances. Judges are not permitted to consider a person's... Learn More
If I am required to report that I was charged with a criminal offense even if the charge was later expunged, then why should I bother having the matter expunged?
Pennsylvania Criminal Charge Expungement Lawyer A person should seek expungement of dismissed charges as soon as such a person is eligible to have them expunged. The sooner that the charges are expunged, the less likely it is that the government records will be obtained by private background search companies, so the less likely it is that the charges will appear on criminal background searches. If a person charged with a criminal offense was able to avoid a conviction and have the charges dismissed, the person would often not need to self-report on an employment application as such applications generally only... Learn More
If the charge is expunged, do I need to report that I was charged or convicted of the offense?
Pennsylvania Expungement Lawyer Pennsylvania criminal defense attorneys disagree on this issue. Some defense attorneys believe that an expungement and the destruction of the government records allow a person to treat the offense as if it never happened. State College criminal defense attorney Jason S. Dunkle believes that an expungement may result in the destruction of government records, but it does not change history, meaning it does not change what happened with the case. Expungements of criminal charges are generally permitted under section 9122 of the Crimes Code. Section 9102 defines the term "expunge" as "to remove information so that there... Learn More
Why did my expunged charge still appear on a background check?
Centre County Expungement Lawyer In the past, background search information was not obtained until a prospective employer requested information on a particular person, and the request triggered a search of government records. Now, many Internet background search companies upload the entire database of criminal cases such as misdemeanor Possession of Drugs, Furnishing Alcohol to Minors, Simple Assault, and even summary offenses like Underage Drinking from the Administrative Office of Pennsylvania Courts (AOPC). The company then has the records of all persons charged in Pennsylvania before a specific request for information about a particular person is made. When a request for... Learn More
Can I have a conviction or guilty plea to a summary offense expunged?
State College Summary Offense Expungement Lawyer Pennsylvania law allows for the expungement of summary offenses IF the person "has been free of arrest or prosecution for five years following the conviction for that offense." Basically, if a person has stayed out of trouble for five years, he or she is eligible to have a summary conviction expunged. The person must go through the expungement process. Again, eligibility simply allows a person to file an expungement petition, and to have a judge consider the request and render a decision. The expungement law expressly provides that such criminal history "may" be expunged,... Learn More
Can I expunge a felony or misdemeanor conviction from my record?
Criminal records can often prohibit a person from obtaining a good job and thereby supporting a family. Criminal records can also place limitations on a person's constitutional rights, such as prohibiting a person from possessing a firearm. Regrettably, under current Pennsylvania law, a person with a felon conviction cannot expunge or even seal the record. Expungements of misdemeanor convictions are only permitted in very limited circumstances. The Pennsylvania expungement law only allows for a misdemeanor conviction to be expunged if the person is over 70 and has been arrest free for 10 years or if the person has been dead for... Learn More
How can a judge deny my expungement request when the law says that I am eligible for expungement?
Centre County Expungement Law Firm Expungement eligibility does not mean that an expungement is mandatory. If a person is eligible to have a charge expunged, the person must file an expungement petition with the Clerk of Courts or Prothonotary in the county in which the case was filed. Eligibility is needed to be able to file an expungement petition and thereby have a judge consider the request. Most expungements are discretionary, meaning a judge has to consider various factors and determine whether or not to grant the expungement request. Most expungements are not mandatory, meaning a person is generally not... Learn More
Can a charge of Underage Drinking be expunged from the records?
State College Underage Drinking Charge Expungement Attorney Generally, a charge of Underage Drinking can be expunged under two subsections of section 9122 of the Crimes Code. One subsection allows for the expungement of "non-conviction" data, meaning charges that have been dismissed, withdrawn, or the person was found not guilty. The other subsection allows the expungement of convictions and guilty pleas of Underage Drinking after the person has turned 21-years-old and successfully completed the sentence. Expungement of Dismissed Charges As an attorney near Penn State University, I see many cases in which students and parents mistakenly think that a charge that... Learn More
If the underage person lied to me, told me he over 21, and provided me with a false identification card, how can I be charged with Furnishing Alcohol to Minors?
Lying About AgeIn Centre County, when the police decide to file charges in a furnishing alcohol to minors incident, they generally file two charges, one under the Crimes Code and one under the Liquor Code. While the Crimes Code Furnishing Alcohol to Minors charge requires proof that the furnisher knew that the recipient was underage, the Liquor Code does not require such proof. If the suspected furnisher was provided with a false identification card by the underage person, then the furnisher may have a defense against the Furnishing Alcohol to a Minor under the Crimes Code as the furnisher can... Learn More
Was I entrapped for furnishing alcohol when the police sat outside a liquor store?
Cops Outside of Shops In the past, police would often conduct furnishing alcohol to minor investigations by having an undercover police officer pose as an employee inside a six-pack shop or liquor store. The police realized that the actual handoff of the alcohol occurred off premises, so they changed their investigations from Cops-In-Shops to Cops-Outside-Of-Shops. In Centre County, many Furnishing Alcohol to Minors cases are based upon investigations conducted by the State College Police Department or Liquor Control Enforcement officers outside of establishments that sell alcohol. In State College, the two prime locations are the Hamilton Street Square, which is... Learn More
While I hosted a party, the party was BYOB, so all of my underage friends brought their own alcohol. How can I be charged with Furnishing Alcohol to Minors?
The Party was BYOBSome people assume that they can host an underage drinking party and avoid being charged with Furnishing Alcohol to Minors by having all the underage people bring their own alcohol to the party. While the term "furnish" makes ones think that a person must supply or give alcohol to an underage person, Pennsylvania law actually defines "furnishing" much more broadly. Section 6310.6 of the Crimes Code defines "furnishing" as "to supply, give or provide to, or allow a minor to possess on premises or property owned or controlled by the person charged." Since "furnishing" includes simply allowing... Learn More
How can I be charged with Furnishing Alcohol to Minors if the only witnesses were underage people that were drunk at the party?
Underage WitnessesMany people question how a person can be charged with Furnishing Alcohol to Minors when the only witnesses for the prosecution are underage drinkers from the party that had obviously been intoxicated when they were interviewed by the police. In this scenario, the underage drinkers are often given a "cooperation" discount and may not even be charged with Underage Drinking as long as they are willing to testify against the alleged furnisher. While this scenario may not be fair, it is fairly common. The fact that the underage people were intoxicated and were also breaking the law does not... Learn More
How can I be charged with Furnishing when I was just present at the party that was hosted by my roommates?
The Party was Hosted by RoommatesThe Superior Court considered and rejected this exact argument in an appeal of a Centre County Furnishing Alcohol to Minors case involving a Penn State student. The charge of Furnishing Alcohol to Minors prohibits a person from "furnishing" alcohol to an underage person, and "furnishing" is defined in section 6310.6 of the Crimes Code as "supply, give or provide to, or allow a minor to possess on premises or property owned or controlled by the person charged." In Commonwealth v. Lawson, the Centre County criminal defense lawyer argued that the Penn State student charged with... Learn More
How can the police prove that I knew that the underage person was not 21 years old and thereby prove me guilty of Furnishing Alcohol to a Minor?
Sufficiency of Evidence - Knowledge of AgeThe Pennsylvania Supreme Court expressly held in Commonwealth v. Scolieri that the prosecution attorney must prove that the person charged with Furnishing Alcohol to a Minor knew that the person furnished was underage. There are two issues that arise: 1) knowledge can be proven through circumstantial evidence; and 2) the police often file both the Furnishing Alcohol to a Minor charge under the Crimes Code and the Furnishing Alcohol to a Minor charge under the Liquor Code.The district attorney can generally only prove that a person knew that the person furnished was underage with... Learn More
How can I be charged with Furnishing Alcohol to a Minor when none of the underage people were charged?
No One Else ChargedMany furnishing suspects erroneously believe that the police must charge someone with underage drinking in order to have sufficient evidence to file charges related to furnishing alcohol to a minor. The police do need to have evidence that an underage person was furnished with alcohol by the suspected furnisher, but the police do not have to file charges against the underage person. To the contrary, in many cases, the police intentionally do not file charges against the underage person to give the underage person the incentive to testify against the furnisher. Basically, the underage person often receives... Learn More
How can I be charged with Furnishing Alcohol to a Minor when the police did not seize the “alcohol” and have it tested?
Testing the AlcoholThe Furnishing Alcohol to Minors charge prohibits a person from furnishing "any liquor or malt or brewed beverage." "Liquor" and "malt or brewed beverage" are both defined in section 6310.6 of the Crimes Code and both basically are beverages that contain 0.50% or more of alcohol by volume. In the past, in a Furnishing Alcohol to Minors case, the court generally did require that the beverage was tested so that the prosecution attorney had direct evidence that the beverage was 0.50% or more of alcohol by volume. The Pennsylvania Legislature then passed section 6312 of the Vehicle Code... Learn More
What are the penalties for Furnishing Alcohol to a Minor?
Charges of Underage Drinking and Furnishing Alcohol to a Minor go hand-in-hand, like peanut butter and jelly. Many people assume that because the charges are so closely associated with one another that the charges would be treated the same in the criminal justice system. People also assume that because almost everyone drinks underage at college, that a charge of Furnishing Alcohol to Minors is not a big deal. Regrettably, the person that provides alcohol to a minor is in much more trouble than the person drinking that alcohol. Underage Drinking is a summary offense, but Furnishing Alcohol to a Minor... Learn More
How can I be charged with Furnishing Alcohol to Minors when I am underage myself?
Some people believe that an underage person cannot be charged with furnishing alcohol to a minor because the underage person is not lawfully permitted to possess the alcohol. Years ago, this precise argument was made by a Centre County defense attorney, and this arguments was rejected by the Superior Court of Pennsylvania in the case of Commonwealth v. Lawson. The charge of Furnishing Alcohol to a Minor, found in Pennsylvania law at 18 Pa.C.S. 6310.1, states that a "person commits a misdemeanor of the third degree if he intentionally and knowingly sells or intentionally and knowingly furnishes, or purchases with... Learn More
Do the penalties for misdemeanor possession vary based on the drug?
Centre County Drug Possession Attorney In Pennsylvania, the normal charge for possession of a drug for personal use is ungraded misdemeanor under 35 P.S. 780-113(a)(16). The law covers possession of any drug except for small amounts of marijuana. If a person possesses less than 30 grams of marijuana for personal use, there is a special charge under 35 P.S. 780-113(a)(31) that is slightly less severe. Under subsection (a)(16), the ungraded misdemeanor offense carries a maximum sentence of one year in jail and a $5,000.00 fine. If the person has prior drug-related conviction, the maximum sentence increases to three years in... Learn More
Will an Underage Drinking conviction appear on a background search?
Different Government Databases Contain Different Information While Underage Drinking in Pennsylvania is only a summary offense, meaning NOT a misdemeanor or felony, it may appear on a background search report that is provided to employers. Many people believe that there is one criminal record history or one background search report that includes information about a person's entire criminal history. That is not how government records and databases often work. Instead, there are various government databases that contain different information. For example, in Pennsylvania there are two primary government databases that are searched for record purposes, the Pennsylvania State Police (PSP)... Learn More
Should I expunge an Underage Drinking conviction?
Why Bother Having an Underage Drinking Conviction Expunged In Pennsylvania, Underage Drinking is only a summary offense, so NOT a misdemeanor or felony, which means that the conviction often is not viewed in a very negative light by most employers. While the Underage Drinking charge is only a summary offense, it is included in the Pennsylvania Crimes Code, and therefore many employers would consider the charge to be a "criminal offense." Therefore, if an employment application required a person to report all prior convictions for "any criminal offense," the applicant should report a conviction of Underage Drinking. Many employment applications... Learn More
How can I be charged with Underage Drinking when I was not given a breath or blood test?
Many people assume that the police must have direct evidence of alcohol consumption, such as a blood or breath test, in order to file an Underage Drinking citation. While direct evidence of guilt is preferred by the police, a judge can find a person guilty of an offense based solely upon circumstantial evidence. The vast majority of Centre County Underage Drinking cases are based upon circumstantial evidence of intoxication, such as the odor of alcohol on a person's breath or body, bloodshot or glassy eyes, slurred speech, difficulty standing, swaying, and torn clothing. The basic premise is that if the... Learn More
How can I be charged with Underage Drinking when I was only holding a beer for someone else and no one saw me drinking?
This question routinely arises in two situations in State College: 1) after a Penn State student is observed by an officer outside a Penn State football game holding a can of beer, and the person is charged with Underage Drinking; and 2) when the State College Police respond to a noise violation at a State College apartment, stumble upon an underage drinking party, and issue citations to people sitting around a coffee table covered in beer cans. People wonder how an underage person can be charged with Underage Drinking in either scenario. While we generally refer to the charge as... Learn More
What are the penalties for Underage Drinking in Pennsylvania?
In Pennsylvania, Possession of Consumption of Alcohol by a Minor, commonly referred to as Underage Drinking under 18 Pa.C.S.A 6308, is classified as a non-traffic summary offense. The charge is NOT a misdemeanor or felony. A first offense of Underage Drinking is punishable by a maximum sentence of 90 days in jail and a $500.00 fine. While jail time is possible in an Underage Drinking case, judges rarely impose such a sentence. For second and subsequent offenses, the maximum sentence increases to a $1,000.00 fine. Pennsylvania no longer suspends driving privileges for Underage Drinking, Possession of Fake ID, or drug... Learn More
Good Samaritan Law and Pennsylvania Underage Drinking Charges
Pennsylvania's Good Samaritan or immunity from prosecution in Underage Drinking cases is called "Safe Harbor" and is found at 18 Pa.C.S.A. 6308.1. In the past, the person that called for medical assistance was often protected from prosecution, but the person that needed the medical assistance was not. Now, the caller AND the person needing medical assistance are immune from prosecution IF certain conditions are met. In order to fall under the protection of the Safe Harbor or Good Samaritan law, the caller for medical assistance must follow certain rules. If the caller does not follow the immunity law requirements, then... Learn More
Can I participate in a first-time offender for Underage Drinking?
Centre County Diversionary Programs for Summary Offenses Many first-time offenders of summary, non-traffic offenses like Underage Drinking, Public Drunkenness, Possession of a Fake ID, Retail Theft, and Disorderly Conduct are permitted by State College judges to participate in a first-time offender or pre-adjudicative disposition programs that allow for the dismissal of the charge. A dismissed charge remains on the government records, but a dismissed charge is immediately eligible to be expunged. In order to expunge, the person must file the appropriate petition with the Clerk of Courts to start the expungement process. State College diversionary programs often require a person... Learn More