The attorneys at Montoya Shaffer have prepared a list of frequently asked questions. Please contact us or call (215) 849-2173 for further assistance.
Being arrested for driving under the influence in Pennsylvania is a charge that the Commonwealth takes very seriously. Pennsylvania has new mandatory minimum sentencing laws for DUIs in Pennsylvania that often include jail time for a first time offender with no criminal record. If you have been convicted of a prior DUI, the sentencing laws become even harsher, with a minimum mandatory jail sentence of one to five years for some third time offenders. In addition to concerns about incarceration, additional penalties such as loss of driving privileges, high court costs and fines, safety classes and potentially an ignition interlock device in your vehicle.
DUI arrests are defensible through different approaches. Sometimes there is a breathalyzer device which hasn’t properly been calibrated that can be suppressed from the evidence. The entire stop can also be thrown out if there was no valid reason to have your vehicle pulled over. Lastly, if your case does not have a good angle for defense, our lawyers can try to get you ARD where the case will be expunged from your record or treatment court if it is a second or third offense. If you or a loved one has recently been arrested for DUI, contact Montoya Shaffer, L.L.C. for a free consultation about your case.
Motions To Suppress
The 4th amendment of the United States Constitution provides protection to everyone giving you the right to be free from illegal searches and seizure from the government and its agents. Furthermore, Pennsylvania’s article 1 § 8 of the state’s constitution provides further protections to individuals in the commonwealth than the federal constitution. To be eligible for a motion to suppress in your case, you must show an expectation of privacy. For example, a state trooper cannot walk up to you on the streets and search your pockets for no reason. As long as you have an expectation of privacy, the government may not search or take any items received from the search unless the government agent has either probable cause to believe that criminal activity is happening or reasonable suspicion that a crime may be going on.
If we can show that the government agent did not have reasonable suspicion or probable cause the judge will suppress the evidence which essentially means that the prosecution cannot use it against you in your case in chief. From illegal firearms, drugs, money or even murder weapons, the attorneys at Montoya Shaffer, L.L.C. are experienced litigators that have successfully argued many motions to suppress. If you have questions about your case, feel free to contact us now to speak with an attorney.
Government Seizure and Forfeiture
After property or a car is searched for narcotics or for other illegal activity, the government often attempts to seize the property where the alleged criminal activity occurred by stating that the property or vehicle was used for the criminal activity. The lawyers at Montoya Shaffer, L.L.C. fight for your property rights to ensure that the government does not illegally take and sell your property at a sheriff’s auction for their own profit. We fight for our clients and force the government to show the owner of the property had actual knowledge that the property was being used illicitly or should have known.
Contact the lawyers are Montoya Shaffer, L.L.C. for a free consultation to help have your property returned to the rightful owner, you!
Bail and Nebbia
After an individual is arrested, they have a preliminary arraignment in front of a bail commissioner. The commissioner sets the bail amount after hearing from a representative from the District Attorney’s office. Because of this, bail is often larger than what is reasonable given the context of a defendant’s prior criminal contacts, if any, facts of the arrest and the history of failures to appear in court. We are able to ask for bail reductions at preliminary hearings or file motions for a reduction in the Court of Common Pleas.
Nebbia orders are frequently put on a defendant’s bail at the preliminary arraignment in drug cases by the District Attorney’s office. While the nebbia order is in place bail cannot be posted. This order can be lifted by having the individual or individuals who plan on posting bail show proof of the source of bail money. A motion then needs to be filed with the Court of Common pleas. At the hearing the individual or individuals posting bail have to appear in court and testify that the money they are using to post bail comes from a legitimate source of income such as a 401(k), savings account with accompanying W-2 forms or other sources.
If you have additional questions, please call the firm to speak with one of our attorneys immediately.
Police often make mistakes and arrest the wrong person or do not have enough evidence to pursue a conviction. In addition, individuals who complete the accelerated rehabilitative disposition program or have successfully fought their charges in trial are all eligible for expungements. Lastly, summary cases are eligible for expungements after five years.
Having a criminal record can hurt you in various ways. From job applications, gun permits and the ability to be bonded, a criminal record can have lasting implications.
If you are serious about having your criminal record eradicated, contact our office now to speak with an attorney free of charge about your options.
In Philadelphia you can file an appeal to the Court of Common Pleas to have a trial de novo. A trial de novo is a brand new trial by either judge or jury. If you wish to have your case appealed you must do it within thirty days of sentencing.
After filing all post-trial motions before the trial judge you can file a notice of appeal to the Superior Court of Pennsylvania. After you file a notice of appeal you must file a 1925(b) statement which in essence states what you are appealing. After the trial judge responds by writing an opinion the Superior Court will ask for briefs which we file.
Withdrawing a plea before you are sentenced is fairly straightforward. We file a motion in front of the judge to have you guilty plea withdrawn. If you want to file post sentencing it is very challenging because the grounds are limited, though this is still possible.
Pennsylvania has the Post-Conviction Relief Act which allows you to file an appeal stating that your lawyer did an inefficient job at trial. The filing of these can be tricky because you need to have exhausted your direct appeal rights and file within a year.
The Supreme Court of Pennsylvania decides which cases it hears. Before an appeal can be filed, you must file a petition for allowance of appeal to allow the appeal. If the Superior Court did not follow the Supreme Court in their decision making then you have a good chance for the appeal. In addition, issues that are new to the court may also increase the likelihood of the Supreme Court granting the allowance of appeal.
You can pursue an appeal to the Supreme Court of the United States. This is very challenging and rarely granted. You may still have viable issues under the Post-Conviction Relief Act which was mentioned above. There are the two most viable options. At Montoya Shaffer our motto is “Refuse to Lose” and we eagerly take appeals until relief is granted to our clients.