11/29/2022 | Criminal Defense, DUI, Pennsylvania Laws, Your Rights and the Law

Can You Be Charged with DUI Without Driving?

Pennsylvania Court Further Defines ‘Operation’ of Vehicle in DUI Cases

In Bold vs. Department of Transportation (PennDOT), the Commonwealth Court clarified the precedent for the term ‘operates’, which is used in the Implied Consent Law under Section 1547(b)(1)(ii) of the Pennsylvania Vehicle Code, 75 for license suspension cases.

This definition expands the meaning to include that being in the driver’s seat of a running vehicle while intoxicated is reasonable cause for police to request chemical testing.

All judges of the appellate court heard the case and the Pennsylvania Commonwealth Court panel ruled against Thomas Bold, despite his vehicle being stationary at the time of the arrest and with no indication Bold had been driving the vehicle.

A dissenting opinion was filed by Judge Leavitt.

PennDOT suspended Bold’s license for 18 months following his arrest when he failed to submit to a chemical test. He had previously been convicted of DUI in 2007.

According to the case filed on November 21, 2022:

Officer Gelnett testified that he was on patrol at the Capital City Mall on January 25, 2020, at 6:14 p.m., when he was dispatched to check on “a vehicle in the parking lot that was running with a gentleman passed out behind the wheel.”

He located the vehicle, which was unlocked and running, with the headlights on. He opened the driver’s side door and shut off the engine. Officer Gelnett then woke Licensee, who was in the driver’s seat, smelled of alcohol, and appeared “obviously intoxicated.”

Officer Gelnett stated that the vehicle “was legally parked in a parking space” near the mall’s liquor store and a Primanti Brothers bar and restaurant. Licensee told Officer Gelnett that he had been in Primanti Brothers watching a game, “and [that] he just [went] out to his truck and was sleeping in his truck [until] he thought he was able to drive home.”

Licensee refused to submit to a preliminary breath test and insisted that he was not driving. Officer Gelnett responded that Licensee was sitting behind the wheel of a running vehicle and, thus, was in actual physical control of the vehicle.

Do you have a question concerning a DUI case? Call our team of Pittsburgh DUI lawyers for a free consultation.

Call Ketchel Law at 412-456-1221. We take your case seriously and are committed to providing quality legal advice.

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03/16/2022 | Drugs, Marijuana, Pennsylvania Laws

Pennsylvania Court Rules Smell of Marijuana Alone Does Not Justify a Warrantless Search

Pennsylvania’s Supreme Court has ruled against making a warrantless search based solely on the smell of cannabis.

The Supreme Court of Pennsylvania ruled that a state police search of a vehicle in 2018 occurred only due to the smell of marijuana. In Commonwealth v. Barr II, the defendant was charged with illegally owning a firearm after police searched his vehicle because they initially smelled marijuana coming from the vehicle.

Medical marijuana is legal in Pennsylvania and many people are authorized to use cannabis. With this ruling, people using cannabis legally can no longer be subject to a search from the smell of weed alone. However, if other suspected behavior is evident to police officers, they may still legally conduct a search when they also smell marijuana.

As the court says, ” “We hold that the odor of marijuana alone does not amount to probable cause to conduct a warrantless search of a vehicle but, rather, may be considered as a factor in examining the totality of the circumstances.”

The ruling also clarifies the ruling further:

“We conclude that the MMA [Medical Marijuana Act] makes abundantly clear that marijuana no longer is per se illegal in this Commonwealth,” the majority opined. “Accordingly, the enactment of the MMA eliminated this main pillar supporting the ‘plain smell’ doctrine as applied to the possession or use of marijuana. Indeed, so long as a patient complies with the dictates of the MMA, that person can legally possess and consume various forms of medical marijuana, including the plant itself. Accordingly, the smell of marijuana alone cannot create probable cause to justify a search under the state and federal constitutions.”

Recently cities in Pennsylvania have begun decriminalizing marijuana, issuing only small fines and seizing the drugs for illegally smoking marijuana. However, in most parts of Pennsylvania, you could still receive a $500 fine and 30 days in jail for even a small amount of illegal marijuana use.

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If you have a pending marijuana case or were recently charged with marijuana possession or marijuana PWID, contact the Pittsburgh Marijuana Attorneys at Ketchel Law to get more information on your rights and Pennsylvania’s marijuana laws.

Attorney Ketchel can provide a free phone consultation.

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04/07/2021 | Federal Laws, Pennsylvania Laws, Your Rights and the Law

Location Tracking, Cell Phone Data, and Your Rights

Can the Police Access Your Cell Phone Data?

What are your privacy rights when it comes to mobile data and cell phone tracking information?

Now that everyone owns a mobile device, it is very easy to for cell phone companies to track real time location, even if calls were not being made. They can also easily determine where and when calls and texts were made and the length of each call or text.

The question is, are they obligated to turn over this information to the police? And the answer is … it depends.

Generally, the police need a search warrant and probable cause in order to obtain tracking information from cell phone companies, like Verizon and ATT. They also need a search warrant to access data on your cell phone.

In the Commonwealth vs. Fulton, the Pennsylvania Supreme Court ruled “that accessing any information from a cell phone without a warrant” violates the Fourth Amendment to the United States Constitution.

Federal law has dictated the same. In 2018, Carpenter vs. The United States, the U.S. Supreme Court issued a landmark ruling that the government violates the Fourth Amendment by obtaining Cell Site Location Information (CSLI) records containing physical locations of cell phones without a search warrant.

Your Right to Privacy and Cell Phone Tracking Data

Even though the police cannot access information on your cell phone without a search warrant, they still may be able to seize your mobile phone during an arrest.

If you are asked by a law enforcement official to be given access to your phone, ask if they have a warrant. If they say they have a warrant, ask to see it, as you have a right to see the warrant before granting access.

If you voluntarily grant access to your cell phone data, this data could be admissible in court.

While you do have to grant access to your mobile data if there is a search warrant, and the police can use facial recognition or fingerprint to unlock your phone, you do not have to unlock it via a passcode or pattern lock. This is in violation of the 5th amendment rights to not incriminate yourself.

In order to protect your privacy rights, always keep a passcode lock on your phone. However, the only way to avoid your mobile data tracking from being turned over to the police is to turn off your cell phone completely and remove the battery, if possible.

If you have been charged with a crime and are worried about police gaining access to your mobile data, you should ask to speak with a criminal lawyer.

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Our number one goal is to have your charges dismissed and your record clean.

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01/06/2021 | Drugs, Federal Laws, Marijuana, Pennsylvania Laws

Marijuana Reform—Federal and PA Changes Could Happen Soon

Federal Marijuana Reform: How it Could Impact Pennsylvania Marijuana Laws

The MORE Act and Pennsylvania Cannabis Laws

Federal Marijuana Reform

Nearing the end of its session in late 2020, the U.S. House of Representatives passed a bill that would decriminalize marijuana on a federal level, as well as provide a pathway to erase nonviolent federal marijuana convictions.

The Marijuana Opportunity Reinvestment and Expungement Act, or MORE Act, would remove marijuana from the federal classification of a Schedule 1 drug, like heroin and cocaine.

The passing of the MORE Act is mostly symbolic, as it wasn’t considered by the Senate before the end of its session. This means it will need to be reintroduced and pass both the House (again) and the Senate in the next session of Congress. [Further, the MORE Act is unlikely to make it through a Republican-controlled U.S. Senate.]

However, if the MORE Act becomes law and marijuana is removed from Schedule I of the Controlled Substances Act, it is up to the states to enact statutes and regulations to govern the industry.

Some states have started to move towards decriminalization, and certain cities, like Pittsburgh, Harrisburg, Erie and State College, have already begun decriminalizing marijuana in Pennsylvania.

Learn more about penalties for different schedules of drugs in Pennsylvania.

Pennsylvania Marijuana Law Trends

Medical Marijuana Regulation

Pennsylvania currently allows marijuana to be used for medical purposes only.

In October 2020, the Pennsylvania House passed a bill to amend the commonwealth’s DUI law to decriminalize driving while traces of marijuana are still in the system of legal medical-marijuana users. The amended bill states that an individual may not drive under a controlled substance, with the exception of “marijuana used lawfully in accordance with the act of April 17, 2016, known as the Medical Marijuana Act.”

In Pennsylvania, the current laws and provisions related to driving while under the influence of alcohol or substances, aka DUI, criminalize driving while tetrahydrocannabinol (THC), a component of marijuana, is still in a driver’s system, even if it has been weeks after ingestion. This also applies if a driver is a legal medical cannabis user. The legislation passed the House in a 109-93 vote, and now heads to the Senate for consideration.

Read the Pennsylvania Medical Marijuana Act.

Recreational Marijuana Regulation

The use of marijuana for recreational purposes is illegal in Pennsylvania. While marijuana possession is a crime under Pennsylvania law, various local jurisdictions throughout the state have passed ordinances that “decriminalize” the possession of small amounts of marijuana.

This includes Pittsburgh, where possessing 30 grams or less is treated as a civil violation (as opposed to a criminal offense) that carries a $25 fine.

In addition, in late 2020, New Jersey lawmakers passed a bill legalizing recreational marijuana, launching a legal marijuana industry in the Garden State. As a result, neighboring states like New York and Pennsylvania are under growing pressure to follow suit to avoid losing out on millions in revenue from marijuana sales.

Know Your Rights: Marijuana Possession Charges

Although attitudes about marijuana are changing rapidly, the use of marijuana without a medical purpose is still illegal in Pennsylvania.

Know your rights by reading our article on Marijuana / Cannabis Possession Charges in Pennsylvania.

Learn more about pardons / expungement for non-violent marijuana convictions in PA.

If you are in need of an experienced Pittsburgh Marijuana Lawyer Contact Attorney Ketchel for a free consultation.

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If you have been charged with a drug crime or marijuana possession in Pennsylvania, contact Ketchel Law today. Our number one goal is to have your charges dismissed and your record clean.

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10/26/2020 | DUI, Pennsylvania Laws

Reduced Sentencing for 2nd DUI Offense in Pennsylvania

Second-Time DUI Offenders May be Eligible for Reduced Sentence

Will the New Pennsylvania Ruling Reduce Your DUI Penalties?

If you were recently charged with a DUI offense in Pennsylvania and considered a “second-time offender” because you already completed the ARD program for a previous offense, you may be eligible to have your current sentence/punishment reduced.

You may be eligible for lower penalties under the Pennsylvania Post-Conviction Relief Act (PCRA) if:

You are currently serving your sentence as a second-time DUI offender;
You have not previously litigated or waived the issue of whether you committed the first-time offense; and
You file for relief within one year from the date of the judgment.

Defendant’s Acceptance of ARD Program Alone Cannot Heighten Defendant’s Sentencing

Recently, the Superior Court of Pennsylvania determined in Commonwealth v. Chichkin and Commonwealth v. Roche that the sole fact that a defendant completed an Accelerated Rehabilitative Disposition (ARD) program in the past, cannot be used as a “prior offense” for sentencing purposes because doing so violates constitutional due process.

In other words—your second DUI offense could be treated like a first DUI offense.

As you may know, a first DUI conviction has drastically different penalties than a second DUI conviction in Pennsylvania.

Read more about this new DUI ruling in Pennsylvania.

By being admitted to the ARD program, a defendant avoids trial and is not required to admit guilt. Therefore, it cannot be considered as a “prior offense” for DUI sentencing unless the Commonwealth proves to a jury beyond a reasonable doubt the fact that the defendant has committed a prior DUI offense or the defendant admits to having committed the prior DUI offense.

The difference between a first-time and a second-time DUI offense is significant because the law imposes mandatory minimums for repeat offenders. In addition, a third-time DUI conviction may result in felony charges.

Ketchel Law Successfully Reduced Sentence for DUI Offender who Previously Completed ARD Program

The PCRA allows individuals who are serving a sentence to challenge their conviction on the grounds that their conviction is unconstitutional.

Because the ruling in Chichkin held that it was unconstitutional to use an ARD as a “prior offense” to sentence a person as a second-time offender, Ketchel Law recently used this ruling to successfully argue a PCRA petition that resulted in the resentencing of a second-time DUI offense as a first-time offense for the client.

The client was eligible for relief because he was still serving his sentence, had not previously litigated or waived the issue, and timely filed the PCRA petition (within one year of the date of judgment).

Ketchel Law argued that because the court treated the fact that the client had previously completed an ARD program as a “prior” DUI offense, his sentence on the new DUI case as a second-time offense was illegal. The court agreed and re-sentenced the client as a first-time DUI offender.

This changed the defendant’s sentence from a misdemeanor of the first degree (M1) to an ungraded misdemeanor and reduced the amount of allowable supervision from 5 years to 6 months.

If you have recently been sentenced on a second DUI offense and your first DUI was an ARD program, call Ketchel Law right away to inquire if you are eligible to file a PCRA petition and possibly have your sentence changed.

If you were charged with DUI in Pennsylvania, Justin Ketchel can help build a strong defense for your case and keep fines and sentencing to a minimum.

The first step is to get a free legal consultation from an experienced and successful DUI Lawyer in Pennsylvania.

OUR NUMBER ONE GOAL: HAVING YOUR DUI CHARGES DISMISSED.

CALL KETCHEL LAW TODAY: 412-456-1221 FOR A FREE CONSULTATION

For more information and to better understand Pennsylvania DUI Laws, visit the following pages: