Is Strangulation A Felony in PA?

Pennsylvania passed a new law in 2016 that created a separate crime of strangulation. Previously, when someone was accused of choking or strangling someone while inflicting minimal or no injuries, the defendant would have been charged with simple assault or harassment. However, the new law makes strangulation an offense in its own right, and it can be charged as a misdemeanor or felony, depending on your relationship to the victim and a couple of other factors. If you have been charged with strangulation, call DiCindio Law to schedule a consultation with an experienced criminal defense lawyer.

What is the crime of strangulation in Pennsylvania?

Strangulation is defined in 18 Pa. C.S. § 2718. Under this law, you can be charged with strangulation if you intentionally or knowingly impair someone else’s blood circulation or breathing ability by applying pressure to his or her neck or throat. You can also be charged with strangulation if you impair the person’s blood circulation or breathing by covering his or her mouth and nose.

What are the penalties for strangulation?

Strangulation can be charged as a misdemeanor or felony, depending on your relationship with the victim and the circumstances under which the act occurred. Since most cases involving strangulation accusations involve domestic partners, this means that most cases will be charged as felony offenses.

Second-Degree Felony Strangulation

Strangulation is a second-degree felony when it is committed against a member of your household or family with one of the following relationships to you:

  • Spouse/former spouse
  • Person you live with even if you are unmarried
  • Current/former intimate partner
  • Child or parent
  • Person related to you by blood or through adoption
  • Sibling

The penalties you might face for a conviction of strangling a domestic partner or family member include the following:

  • Felony on your record
  • Up to 10 years in prison
  • Up to a $25,000 fine

You might also face a long probationary sentence or serve a longer period of parole after you are released from prison. A felony strangulation conviction might also result in a loss of your civil rights, a loss of your right to carry or own a firearm, and cause other consequences in your life for employment, housing, relationships, and credit.

You can also be charged with a second-degree felony strangulation offense if you strangled a person who is dependent on your care while you were acting as his or her caretaker. For example, if you strangled an adult with a developmental or physical disability who requires your help for shelter, food, health care, personal care, or clothing, you could face up to 10 years in prison and the other penalties listed above.

Three other situations that can enhance strangulation to a second-degree felony include strangling someone while also committing a crime of sexual violence, strangling someone whom you have been stalking, or strangling someone while you were engaging in human trafficking.

First-Degree Felony Strangulation

Strangulation can be charged as a first-degree felony if you strangled someone who had an active protection from abuse order against you with which you had been served. You can also be charged with first-degree felony strangulation if you used a prohibited offensive weapon during the act of strangling someone or have a previous conviction for strangulation.

If you are convicted of first-degree felony strangulation, you will face the following potential penalties:

  • Up to 20 years in prison
  • Up to a $25,000 fine
  • Felony on your permanent record

Misdemeanor strangulation

Strangulation is a second-degree misdemeanor when it is committed under any other circumstance than those listed above. For example, you could face second-degree misdemeanor strangulation charges if you strangle someone with who you are not related and do not live together without a weapon or under any of the other circumstances that could result in the felony enhancement. If you are convicted of second-degree misdemeanor strangulation, you will face up to two years in prison and a fine of up to $5,000.

What if the alleged victim was not injured?

The statute explicitly states that it is no defense to a strangulation charge that the alleged victim was not physically injured. Even if the alleged victim was uninjured, this means that you could still be convicted. However, if the alleged victim consented to your request to choke him or her, you can raise that as an affirmative defense.

Defenses to strangulation charges

Many strangulation cases without physical injuries will be based on the testimony of the alleged victim that he or she suffered impaired breathing after the defendant choked him or her. Other cases might include additional evidence, including markings or injuries to the person’s neck, eyewitness testimony, or surveillance video.

Your attorney will carefully review the evidence the prosecution has against you to identify potential defenses. Some of the possible defenses that might be available include the following:

  • The alleged victim consented to being choked.
  • The alleged victim falsely accused you.
  • You were misidentified in a case involving strangers.
  • You were defending yourself against the alleged victim’s aggression.

Get help from an experienced defense lawyer

Strangulation charges are serious. Even if the alleged victim did not have any visible injuries, you could still face felony charges under certain circumstances. If you are convicted of a felony, you could face years in prison and ongoing consequences that could impact you for the rest of your life. Even a misdemeanor strangulation conviction can cause problems for you at your job and in your personal relationships. To learn more about your rights and the defenses you might be able to raise, call DiCindio Law today at (610) 430-3535.

What Happens When You Get A Second DUI In PA

The penalties for a second DUI conviction in Pennsylvania within 10 years are more severe than for a first DUI offense. Being a repeat DUI offender exposes you to harsh criminal penalties and other collateral consequences. At a minimum, you will face mandatory jail time, a suspension of your license, stiff fines, and a permanent criminal record if you are convicted. While the penalties for a first DUI are tough, they are much worse for a second conviction. In addition, being convicted of a DUI for the second time can impact other areas of your life, including your career, credit, housing, and education. You could also face other problems with your auto insurance, including trouble getting it or experiencing drastic increases in your rates. Chester County DUI lawyer Michael DiCindio at DiCindio Law can help to defend you against your charges for a second-offense DUI. Here is some information you should know about this type of offense and what you might expect.

How Are Prior Convictions Counted?

Pennsylvania looks back 10 years for prior DUI offenses. This means that if you receive a second DUI within 10 years of a previous one, you will face the penalties for a second DUI. A prior DUI offense for which you participated in and successfully completed the ARD program will also count as a prior DUI conviction.

A second DUI charge might also violate the terms of your first offense. For example, if you accepted a plea agreement for the first DUI conviction for a lesser sentence, but you violated the terms of your probation by getting a second DUI, you could also face additional penalties for your first DUI. If you had some of the jail time for your first DUI suspended and are still on probation when you get your second DUI, the court could order you to serve the suspended time for your first conviction in addition to the penalties you might face for your second offense.

What Are the Penalties for a Second DUI in Pennsylvania?

Pennsylvania has a three-tier system of penalties for DUIs. Each tier carries different penalties that depend on your blood alcohol content (BAC) within two hours of your arrest. If you are charged with a DUI based on controlled substances in your system or refused a chemical test, you will automatically face the penalties for the highest impairment DUI.

The three penalty tiers include the following:

  • BAC from 0.08% to 0.099% – General impairment DUI
  • BAC from 0.10% to 0.159% – High impairment DUI
  • BAC from 0.16% or higher – Highest impairment DUI

The penalties are greater based on the number of DUIs you have previously had. A second conviction will result in harsher penalties than a first DUI conviction.

The penalties for a second DUI will also be based on which tier your BAC falls in as detailed below.

Second General Impairment DUI Conviction

High impairment DUI as a Second Offense

If your BAC for your second DUI was between 0.10% to 0.159%, you will face the following penalties:

  • Ungraded misdemeanor on your record
  • Minimum mandatory 30 days in jail up to six months
  • Fine ranging from $750 to $5,000
  • Suspension of your license for 12 months
  • Alcohol Highway Safety School
  • Ignition interlock device installation for 12 months at your expense
  • Drug and alcohol assessment and completion of any recommended treatment

Highest Rate of Impairment as a Second Conviction

If you are convicted of a second DUI offense at the highest rate of impairment within 10 years, you will face the following penalties:

  • First-degree misdemeanor on your record
  • Minimum mandatory 90 days in jail
  • Minimum fine of $1,500
  • Alcohol Highway Safety School
  • Suspension of your license for 18 months
  • Mandatory ignition interlock device installation at your expense
  • Drug and alcohol assessment and completion of any recommended treatment

The following factors can result in more serious penalties than those listed above:

  • DUI with a minor in your vehicle
  • Causing a car accident resulting in property damage
  • Second DUI while driving the wrong way on a highway
  • DUI causing an injury or fatality accident

What to Do if You Are Facing Second DUI Charges

If you have been charged with a second DUI offense in Pennsylvania, the first thing you should do is to meet with an experienced local DUI attorney to discuss your case. Your lawyer can review the reports and evidence and explain the defenses that might be available to you. Write down everything you remember about your DUI stop and arrest as soon as possible. This might provide your lawyer with important information about potential defenses. Gather the information you have about both your first DUI and your second offense, and determine whether you will be represented by a public defender or will retain an attorney.

Get Help From an Experienced DUI Defense Lawyer

If you have been arrested for a second DUI within 10 years, call DiCindio Law today to request a consultation. We can help you understand your options and how we might be able to help. Call us at (610) 430-3535.

Understanding DUI Blood Test Results Time Frame

In Pennsylvania, people who are arrested on suspicion of DUI are asked to submit to chemical testing of their breath, urine, or blood within two hours of when they last drove. This testing is conducted to determine their blood alcohol content or whether drugs are present in their systems. Blood tests are frequently performed because they generally have fewer problems and are more accurate than breath or urine tests. If you were arrested for a DUI and had your blood drawn for chemical testing, you might wonder how long it might take for your results to come back.

In many cases, the state will not begin the court process until the prosecution has received the results of blood tests for the defendants. This is because a blood alcohol concentration of 0.08% is enough to establish a per se DUI. Any amount of impairing or illegal drugs is enough to result in charges.

In some cases, your blood test results might come back within a month to one-and-one-half months. However, when the state lab is backed up, the time it might take your blood results to come back could be months. Here is some information from a Chester County DUI lawyer at DiCindio Law about blood tests and what to expect.

Understanding Blood Tests In Pennsylvania

In Pennsylvania, all people who drive within the Commonwealth are deemed to have given their implied consent to chemical testing of their blood, breath, or urine to check for the presence of alcohol or drugs when an officer suspects that they might be driving while impaired. This is known as the implied consent law and is found at 75 Pa. C.S. § 1547. Under this statute, you do not have the right to refuse chemical testing of your blood, breath, or urine after you have been arrested for a suspected DUI. If you refuse to test, you will face the penalties for the highest BAC DUI, which are more severe than they are for a general impairment DUI. You will also face administrative penalties against your driver’s license if you refuse.

Implied consent does not require you to talk to anyone or do anything. Instead, you only have to operate a vehicle in Pennsylvania for you to be deemed to have given this type of consent.

This means that you must legally submit to one of the following three tests after you have been arrested for a DUI in the Commonwealth:

  • Urine test
  • Breath test
  • Blood test

While you have the right to choose which of these three tests you would prefer to take, one or more of the testing options might not be available in some cases. If you refuse to take the test that is offered to you, your refusal can have serious consequences. Refusing a blood test can result in an automatic suspension of your driver’s license by the Pennsylvania Department of Transportation. You will also face the highest level of penalties available for a misdemeanor DUI in Pennsylvania if you are convicted.

Time Frame For Blood Test Results

Blood test results can take as little as a month to one-and-one-half months to come back after a DUI arrest. However, many blood tests will take much longer to come back.

Some of the reasons why a blood test might take a long time to come back include the following:

  • The Philadelphia metropolitan area is large.
  • There might be many BAC tests waiting to be processed.
  • There might be a backlog caused by labor pressures during the COVID-19 pandemic.

Occasionally, the lab might misplace a blood sample or lose one. If it is recovered, the temporary misplacement might result in an added time needed to secure the results. Your attorney can also ask for independent testing of your blood sample.

If your attorney asks for independent testing, the prosecution will have to allow your attorney to have a sample of your blood draw independently tested by a different lab. The time it might take for independent testing results to come back can greatly vary, depending on the lab your attorney chooses and the number of other blood tests they have to perform. Your local DUI lawyer can explain the expected time frame for getting your blood test results back in your DUI case.

Time Frame For Blood Test Results

Legal Limits In Pennsylvania

Pennsylvania has established a per se BAC limit for alcohol under 75 Pa. C.S. § 3802(a)(2). Under this subsection, you can be charged with a general impairment DUI if your BAC tests at 0.08% or higher within two hours of when you last drove. If your BAC tests at 0.10% but less than 0.16%, you will be charged with a high BAC DUI. If it tests at 0.16% or higher, you will be charged with the highest BAC DUI, which carries more severe penalties.

However, under 75 Pa.C.S. § 3802(a)(1), you can still be charged with a DUI if your driving is impaired to the slightest degree by any amount of alcohol. Under 75 Pa.C.S. § 3802(d), you will face the penalties for the highest BAC DUI if you are found to have any amount of illegal drugs in your system, any schedule II or III drug for which you do not have a valid prescription or a metabolite of an illegal or non-prescribed drug.

There are also different limits for people with specific types of jobs while they are on duty and for minors as follows:

  • Commercial drivers – 0.04% while operating a commercial vehicle
  • School bus drivers – 0.02% while operating a school bus
  • Minors younger than 21 – 0.02% at any time

Commercial drivers, bus drivers, and minors also face more severe consequences if they are convicted of DUIs than other motorists at the same levels of impairment.

Can A Blood Test Be Challenged?

While blood tests are generally more accurate than breath or urine tests, they can still be challenged. Your attorney can examine how your blood was drawn, stored, transported, and tested to determine whether mistakes were made.

Some of the potential ways to challenge a blood test include the following:

  • Using an alcohol wipe to clean the blood test draw site
  • Person drawing the blood did not have the correct certifications
  • Blood improperly stored
  • Fermentation caused by the medium or temperature
  • No documentation for a portion of the chain of custody
  • Blood sample lost/misplaced by the lab
  • Lab analysts did not have the proper certifications
  • Lab analysts made mistakes with the testing or analysis

Get Help From A Local DUI Attorney

If you were arrested for a DUI and are waiting for your blood test results to come back, you should speak to an experienced Chester County DUI lawyer at DiCindio Law. We can review your case and help to identify any problems that might have occurred, including with the blood testing. Call us today at (610) 430-3535 to request a consultation.

Is Cyberbullying A Crime In PA?

Cyberbullying is a real problem in Pennsylvania and across the U.S. This is a type of bullying that occurs online and frequently happens on social media and through text messaging. Teenagers can be the victims or perpetrators of cyberbullying, and this type of behavior can result in potential civil and criminal liability. Here is some information about cyberbullying laws in Pennsylvania from DiCindio Law.

What Laws Apply to Cyberbullying in Pennsylvania?

There are a few criminal laws that can be applied to cyberbullying in Pennsylvania. The Commonwealth also has a statewide anti-bullying policy. Students might face penalties under either avenue.

Cyberbullying and Criminal Laws

Depending on the facts and circumstances, cyberbullying might be charged as harassment under 18 Pa. C.S. § 2709. Under this statute, people might face harassment charges when they communicated with the intent to annoy or alarm the victim in a threatening manner. Harassment charges might also be filed if the perpetrator communicated to or about the victim using obscenities or in a lewd or lascivious way. Under § 2709(a.1), a person can be charged with cyber harassment of a child when he or she repeatedly sends messages by electronic means or social media to the victim that disparage or demean the child’s physical appearance, sexuality, mental health, or physical condition.

In situations in which the perpetrator also engages in repeated acts that demonstrate his or her intent to place the victim in serious emotional distress or in fear that he or she will be injured, someone who engages in cyberbullying might also be charged with stalking under 18 Pa. C.S. § 2709.1.

State Anti-bullying Policies

Public schools in Pennsylvania are required to have anti-bullying policies that are incorporated into their codes of conduct. These policies include disciplinary measures for bullying and list the staff members who receive allegations of bullying and investigate them. Schools review their anti-bullying policies with students at least annually and are required to post the policy in a public place within the school building under 24 Pa. C.S. § 13-1303.1-A.

Why Cyberbullying Is Dangerous

Before the rise of the internet, students who were bullied at school could escape their torment when they were away from school. However, the ubiquitous nature of social media and the internet means that people who are the victims of cyberbullying can no longer escape it. This makes cyberbullying especially damaging. Cyberbullying also involves the abuse of a victim in front of a broader audience, and multiple people might be involved.

While school bullies are readily identifiable, cyberbullies might also be anonymous. This can make victims more fearful when their cyberbullies hide behind fake profiles and user accounts. This anonymity might also allow the bully to be crueler than he or she might act in person.

Cyberbullying can also be damaging for the abusers. The information they post online never goes away, which means that the abusive posts they target towards their victims can come back later to haunt them. Engaging in cyberbullying as a teenager might later come back to impact the abuser in his or her future job opportunities since many employers screen applicants by searching for information about them online.

Why Cyberbullying Is Dangerous

Defending Against Criminal Charges Related to Cyberbullying

There are a few different ways to defend against harassment or stalking charges based on cyberbullying. An experienced criminal defense lawyer can carefully review the situation to identify the defenses that might be available.

One potential defense is the right to free speech under the First Amendment to the U.S. Constitution. While you do have free speech rights, they are not absolute. Speech can be limited by the state when it involves an imminent, serious threat. In the case of cyberbullying, the right to free speech might be circumscribed when the bully threatens to harm the victim, and the victim reasonably believes that he or she might be imminently harmed. However, the line between legitimate expressions and threatening speech can be blurry, making free speech a potential defense based on the circumstances of a case.

Penalties for Cyberbullying or Bullying

The penalties for cyberbullying depend on the particular offense with which the person is charged. If the person is convicted of harassment, the punishment will depend on the underlying behavior. For example, repeatedly contacting someone with the purpose to annoy or alarm without a legitimate purpose is a summary offense, which can include up to 90 days in jail and a fine.

However, repeatedly contacting a victim anonymously, at inconvenient hours, or in a threatening manner is a third-degree misdemeanor. A conviction can result in up to 12 months in jail and a fine of up to $2,500. Additional penalties will apply to defendants who are convicted of harassing victims in violation of a protective order involving the same victim.

If a defendant is convicted of stalking based on his or her cyberbullying of the victim, it is a first-degree misdemeanor. This can result in up to five years in prison and a fine of up to $10,000. If it is a second or subsequent conviction for stalking, it is a third-degree felony carrying up to seven years in prison and a fine of up to $15,000.

Civil Penalties

While cyberbullies might face criminal prosecution and face school discipline, they might also face civil lawsuits filed by their victims or their victims’ families. These lawsuits are meant to pursue monetary compensation for the victims for their economic and non-economic losses. For example, a cyberbully might be ordered to pay damages to a victim to pay for the costs of therapy, emotional distress, and other losses.

Get Help From an Experienced Attorney

If you or your child is facing charges related to cyberbullying, you should meet with an experienced criminal defense attorney as soon as possible. A conviction related to cyberbullying can seriously impact your life and your future. The experienced criminal defense lawyer at DiCindio Law can help you to understand how the law applies to what happened and the defenses that you might be able to raise. Call us today at (610) 430-3535 to request a consultation.

Are There Defenses To A Sex Crime Charge?

To determine the best defense strategies to implement when defending against a sex crime allegation, you must thoroughly understand the Pennsylvania sex offender laws, the statute of limitations, technical defenses, and other defenses used to challenge the credibility of the government’s evidence and witnesses. Retaining an experienced sex crime lawyer can greatly increase your chances of successfully defending against the charges against you. Here is some information about potential defenses to sex crimes charges from DiCindio Law.

Examples Of Technical Defenses

Technical defenses are defenses based on issues with when the prosecutor filed the case or when the prosecutor does not have sufficient evidence to prove all of the elements of the case.

  • Defense Based On The Statute Of Limitations – Pennsylvania has established statutes of limitations for filing criminal charges under 42 Pa. C.S. § 5552. Under this law, most criminal charges must be filed within two years of the date of the offense.

However, there is a 12-year statute of limitations for the following sex crimes:

There is also a carve-out for people who were the victims of sex crimes as children. For cases involving them, the statute of limitations is tolled until the children turn age 18 and will not expire until the person reaches age 50, whichever occurs later.

While the statute of limitations is lengthy for major sex offenses, when the prosecutor tries to file a case after the limitations period has expired, a defense lawyer can raise the statute of limitations as a complete defense to the charge. If the court determines that it was filed after the limitations period, the case will be dismissed.

  • Insufficient Evidence To Prove The Elements – Prosecutors must always be able to prove each of the elements of a sex crime allegation beyond a reasonable doubt. If a prosecutor cannot prove one of the elements of the charged offense, you cannot be found guilty of it. An experienced criminal defense attorney can carefully analyze the evidence and hold the prosecutor to the burden of proof when the evidence is insufficient to prove one or more of the elements.

Other Defenses

In addition to the technical defenses, there are a number of other potential defenses that might apply to your case. Some of these defenses are described below.

  • Challenging The Credibility Of The Victim Or Witness – In some cases, a victim or witness will make statements during the trial that are inconsistent with previous statements he or she has made in the past. A good defense attorney might use the past statements the victim or witness made to the police, during a civil proceeding, or during an earlier motion hearing to challenge the testimony he or she gives on the stand. This can help juries to weigh the victim’s or witness’s credibility and might make them more likely to discount the claims.
  • Establishing The Motivation Of The Accuser To Lie – Unfortunately, some alleged victims falsely accuse others of committing sex offenses. A victim might do this to get revenge for a previous wrong or to try to gain the upper hand in a divorce or child custody proceeding. Engaging in a thorough pre-trial investigation of the background of the accuser can help to bring these types of facts to light.

Some of the types of reasons why someone might falsely accuse another person of committing a sex crime include the following:

  • Shame or embarrassment following a consensual sex act because of the defendant’s marriage to someone else, reputation, or another factor
  • Revenge for a prior real or imagined wrong
  • Financial motive to extort money from the defendant
  • Gain the upper hand in a divorce or child custody proceeding
  • Misidentification

While most sex offenses involve people known to the victims, some are committed by strangers. In these types of cases, the police might use eyewitness identification procedures to bring charges against defendants. Unfortunately, many identification procedures are flawed and result in false identifications. In this type of case, an attorney might file a motion to challenge the identification procedure used to identify the defendant. If successful, this can result in the dismissal of the charges against the defendant.

  • Challenging Forensic Evidence With Experts – Some sex crimes cases involve the use of forensic evidence by the prosecution, including DNA, fingerprints, and others. When the prosecutor is relying on forensic evidence to try to secure a conviction, a defense lawyer might call expert witnesses to challenge the evidence. These types of challenges might include analyzing the DNA to check whether it was properly analyzed, looking at how fingerprint evidence was used to make a match or reviewing videotapes of child victims to identify when the interviewer has given suggestions to lead them to make accusations against the defendant.
  • False Allegations Made By Children – While teens might falsely accuse others of sexual assault for many of the same reasons that adults falsely accuse others, younger children tend to make false allegations for different reasons. Children might falsely accuse an adult of sexual abuse when nothing inappropriate happened. A child might talk about an event that happened, and his or her parent might jump to conclusions and assume that the child was sexually abused. This can result in the parent asking leading questions that implant a false memory of abuse that never happened.

When a defense lawyer believes that a child’s accusation was based on a suggestive or biased interview, he or she can file a motion requesting a taint hearing. Parents, police, teachers, and therapists might all ask leading questions even when they are not consciously aware that they are doing so. In other cases, an adult might try to distort a child’s understanding of an event deliberately. Children normally want to please adults and are easily led. Working with a forensic psychologist to examine the pre-trial evidence and asking for a taint hearing can result in a dismissal of sex crimes allegations involving children.

Get Help From DiCindio Law

The Pennsylvania sex offender laws carry severe penalties if people are convicted. People who are convicted of sex offenses also face lifelong consequences in other areas of their lives. If you are facing sex crimes charges, you should immediately seek help from an experienced attorney. Call DiCindio Law today at (610) 430-3535 to schedule a confidential consultation.

Can You Get A DUI For Open Container In Chester County PA

In Pennsylvania, most people think of DUIs when they think about alcohol-related traffic offenses. However, driving with an open container of any amount of alcohol in your vehicle can also result in charges. While an open container by itself is not enough to result in drunk driving charges, having an open container in your vehicle will likely result in the officer who stopped your vehicle conducting a DUI investigation. Depending on the results of the investigation, you might be charged for both the open container and a DUI, leading to greater potential penalties. Here is some information about how an open container might affect a DUI charge from criminal defense lawyer Michael DiCindio of DiCindio Law.

Open Container Laws in Pennsylvania

Pennsylvania prohibits having an open container in a vehicle under 75 Pa. C.S. § 3809. Under this statute, drivers and passengers are prohibited from carrying open containers of alcohol in their vehicles. This law applies whether your vehicle is parked or moving, and you do not have to be consuming alcohol from the container to violate the law.

An open container includes any alcoholic beverage that has a broken seal, has been opened, or has had a portion of its contents removed. Even if you are sober, it is still illegal to have an open container of alcohol in the passenger compartment of your car.

The open container law does not prohibit you from transporting open containers outside of the passenger compartment of your vehicle. For example, you could transport an open bottle of wine in your trunk or in a locked container out of your reach.

What Are the Penalties for Violating the Open Container Law?

A violation of the open container law is a summary offense. If you are convicted, you will face up to 90 days in jail and a fine of up to a maximum of $300. If you are also charged with and convicted of a DUI offense, the open container penalties will be in addition to the penalties you might face for the DUI.

How Can an Open Container Lead to a DUI?

Having an open container of alcohol in your vehicle is not enough by itself to result in a DUI charge. However, an open container of alcohol can be used as evidence that you might have been drinking and driving. If there is other evidence indicative of impairment by alcohol, you could also be charged with a DUI.

How Can an Open Container Lead to a DUI?

An officer cannot pull you over unless he or she reasonably suspects that you have committed a crime or traffic offense. For example, an officer might pull you over for speeding, swerving, having a broken taillight, having a headlight out, or other similar things. If you are pulled over, the officer will walk to your car. He or she will be peering inside and observing you and the objects in your vehicle to check for anything suspicious. If the officer suspects that you might be under the influence based on your driving and/or observations he or she makes while talking to you, he or she will ask you to step out of your vehicle and perform field sobriety tests.

If an officer spots an open container of alcohol within your reach in the passenger area of your vehicle, he or she will likely search your car. When the officer suspects you might be under the influence and sees an open bottle of alcohol, he or she can search your car and seize the open container without a warrant.

Some of the things that officers look for when they approach your vehicle and talk to you that might indicate you are under the influence of alcohol include the following:

  • Bloodshot, watery eyes
  • Slurred speech
  • Slowed movements
  • Clumsy movements
  • Motor control problems
  • Odor of alcohol
  • Bottles or cans of alcohol in clear sight from outside of your car
  • Drugs/drug paraphernalia in clear sight from outside of your car

While you are not required to perform the standardized field sobriety tests, if you do submit to them, the officer will look for additional indicators of impairment as you perform them. He or she might also ask you to blow into a portable breath test device. However, the PBT is not required. However, if you are placed under arrest and transported to the station for a chemical test, you will have to take the breathalyzer or blood test or face the penalties for the highest BAC DUI and have your license suspended administratively.

If the officer believes that he or she has probable cause that you are under the influence of alcohol, he or she will arrest you for a DUI and refer your case to the prosecutor’s office. The prosecutor will then file charges for the DUI and will also likely stack the open container charge with it.

Driving Drunk With an Open Container

In Pennsylvania, you are prohibited from driving with a blood alcohol concentration of 0.08% or higher. It is also illegal to drive, operate, or be in actual physical control of a vehicle when your driving is impaired by any amount of alcohol. If you are caught with an open container, the officer will likely suspect that you may be driving while impaired by alcohol and conduct a DUI investigation. The penalties you might face for the DUI will depend on your BAC and any prior offenses within the past 10 years. Depending on your BAC and your record, a misdemeanor DUI could carry as much as five years in prison, substantial fines, and other penalties. If you are convicted of both the DUI and the open container violation, the fine and potential jail for the open container could be added to the sentence you receive for the DUI.

Get Help From DiCindio Law

If you are facing charges for an open container and a DUI, you should reach out to DiCindio Law to learn about your charges and the penalties you might face. Call us today at (610) 430-3535.

Understanding the Difference Between Burglary and Criminal Trespass

In Pennsylvania, criminal trespass and burglary are related, but they are separate offenses. Both the state’s burglary and criminal trespass laws are meant to protect the public and the property people own from people entering their private property without their permission. However, burglary includes additional elements that criminal trespass does not. Here is some information from a criminal defense lawyer at DiCindio Law to help you understand these two crimes and what to expect if you are charged with either one.

What is Burglary Under Pennsylvania Law?

In Pennsylvania, a burglary occurs when you enter an occupied structure or building without permission and with the intent to commit another crime inside. Before a prosecutor can secure a conviction for this offense, he or she must prove both the fact that you unlawfully entered the property and that you did so with the intent to commit a crime while inside the structure or building.

A building or occupied structure includes any building used for business or a structure designed to provide overnight accommodations. It does not matter whether or not someone is present when you enter. This can include an office building, apartment, warehouse, home, or recreational vehicle.

What Are the Elements of Burlgary?

The prosecutor has the burden of proving all of the elements of burglary beyond a reasonable doubt to secure a conviction. If the prosecutor is unable to prove one of the elements, you cannot be found guilty of burglary. However, you might be found guilty of a lesser included offense, including trespass or attempted burglary, depending on the circumstances.

The first element of burglary is that you unlawfully entered the building or occupied structure without permission. You do not have to use force to enter unlawfully. For example, if you gained entry by threats or fraud or simply reached through a mail slot to open the door, that is sufficient.

The second element of burglary is that you intended to commit a crime after unlawfully entering the structure or building. This element requires the prosecutor to present evidence about your state of mind at the time that you entered. The crime you intended to commit inside can be a misdemeanor or felony. You must have intended to commit the crime and unlawfully entered for the purpose of doing so. You do not need to have successfully completed the intended crime. Instead, having the criminal intent at the time of entry alone is sufficient.

Penalties for Burglary

Burglaries in Pennsylvania are classified as felonies. If you enter into a home or enter into a building or occupied structure with the intent to commit a crime when people are present inside, the penalties will be more severe. Possessing burglary tools is also a misdemeanor crime.

First-Degree Burglary

You can be charged with first-degree burglary if you enter an occupied structure or building that has been adapted for overnight accommodation. You can also face first-degree burglary charges if you enter a building or occupied structure to commit a crime while someone is present or when you enter a building or occupied structure to steal drugs. Under these types of situations, you will face up to 20 years in prison and a fine of up to $25,000.

However, the penalties you will receive will depend on the severity of the offense. You will face more severe penalties when the risk of harm is higher. For example, if you committed a home burglary when no one was at home, you would face a lesser sentence than if you burglarized a home when someone was present, and you injured him or her.

Second-Degree Burglary

You can be charged with second-degree burglary if the building you unlawfully entered to commit a crime was not adapted for overnight accommodations and no one was inside at the time of your entry. If you are convicted of second-degree burglary, you will face up to 10 years in prison and a maximum fine of up to $25,000.

Possessing Burglary Tools

If you were caught with burglary tools, you can face a first-degree misdemeanor. These might include things like crowbars, false keys, and other instruments intended to be used to commit a burglary. A conviction for possessing burglary tools can result in up to five years in prison and a fine of up to $10,000.

What Is Criminal Trespass?

In Pennsylvania, criminal trespass can be charged when you entered any type of private property without permission. The property does not have to be a building or occupied structure. However, the entry must be completed when you defy a order against trespassing, including an obvious posted sign, a locked gate, or by using subterfuge to enter without permission. You do not need to have entered with the intent to commit a crime, unlike burglary. In many burglary cases, it is common for the prosecutor to file charges of both burglary and criminal trespass so that if the defendant is found not guilty of burglary, the prosecutor might still secure a conviction for criminal trespass. There are several categories of criminal trespass in Pennsylvania with varying penalties that are described below.

Trespass Into a Building or Occupied Structure

If you trespass into a building or occupied structure, you will face either second- or third-degree felony charges. If you break into the building or occupied structure to gain entry, it is a second-degree felony carrying up to 10 years in prison and a maximum fine of up to $25,000. If you only entered but did not break-in, it is a third-degree felony carrying up to seven years in prison and a maximum fine of up to $15,000.

Trespassing Onto Private Property Other Than Occupied Structures or Buildings

If you trespassed onto private property even though you had actual notice not to enter, you can be charged with either a misdemeanor or a summary offense. If an authorized person commanded you to leave and you refused, you could be charged with a misdemeanor carrying up to five years in prison and a fine of up to $10,000. If you entered in defiance of a posted notice or locked gate, it is a summary offense carrying up to 90 days in jail and a fine of up to $300.

If you knowingly trespassed onto private property for the purpose of annoying the owner or causing slight damage, it is a simple trespass and a summary offense. A conviction can result in a jail sentence of up to 90 days and a fine of up to $300.

How Do I Find a Criminal Defense Attorney Near Me?

If you are facing burglary or trespass charges in Chester County, you should retain a local attorney to represent you. Choosing an experienced defense lawyer who knows the different judges, court staff, and local prosecutors might help you to secure a better outcome in your case. Talk to an experienced defense attorney at DiCindio Law about your charges by calling (610) 430-3535.

What Makes Federal Charges More Severe Than State Charges?

Facing criminal charges in Pennsylvania can be frightening, and if the charges you are facing are federal, you could be facing even more severe penalties. While criminal charges filed in either state or federal court can result in long prison sentences, stiff fines, and other penalties, those that are filed in federal court can be much worse. There are several reasons why federal charges are more severe than state criminal charges as explained by the experienced criminal defense lawyer at DiCindio Law below.

Understanding Federal vs. State Charges

Most criminal cases are prosecuted at the state level for violations of the state’s criminal laws. However, federal criminal laws that have been passed by Congress can also form the basis of prosecution. These types of criminal matters are handled by the federal court system instead of the state courts and are prosecuted by assistant U.S. attorneys rather than local district attorneys.

There are fewer federal criminal laws than state criminal laws. This is because the states generally have the right to make and enforce their criminal laws. However, the federal government can also enforce federal criminal laws that deal with national or federal issues, including crimes that affect interstate commerce, those that cross state lines, crimes committed on federal property or Native American reservations, and those committed against the federal government and its agencies.

Federal charges place much more at stake than state charges. There are substantial differences between charges filed at the state versus the federal level. If you are facing federal charges, you need to get immediate legal representation from a criminal defense attorney who has experience practicing in federal court.

Differences Between Federal Offenses and Pennsylvania State Offenses

The United States Code includes the various federal crimes that can be prosecuted by federal prosecutors and investigated by federal agents. Pennsylvania’s criminal laws are found in Pennsylvania Crimes Code and certain statutes contained in the Pennsylvania Vehicle Code. Within the United States Code, Title 18 is the section that specifically deals with federal crimes.
Federal crimes are offenses that are described by the United States Code—a document composed of laws passed by Congress—while state crimes are offenses that are described by state criminal codes. In Texas, the most common source of state codes describing offenses is the Texas Penal Code. Title 18 of the United States Code is the portion of federal law that deals specifically with federal criminal law.

In addition to different bodies of law, federal and state crimes also differ based on which agencies investigate and prosecute them. The President of the United States holds the ultimate authority to enforce federal laws and delegates this authority to various federal agencies, including the FBI, ATF, DHS, SEC, and the Secret Service. During their investigations, these agencies might ask for and receive cooperation from state and local law enforcement agencies.

Differences Between Federal Offenses and Pennsylvania State Offenses

While state crimes are prosecuted in state courts located in jurisdictions throughout the state, federal crimes are prosecuted in federal courts in the U.S. District Courts of the Eastern, Western, or Middle Districts of Pennsylvania. The federal courts follow different rules and procedures than the state courts. Some crimes are only illegal under federal law. However, others can be prosecuted under either federal or state law.

Why Are Federal Charges More Severe than State Charges?

Most federal criminal offenses carry more severe penalties than the corresponding offenses under state law. Federal indictments often carry harsher penalties because national interests may be at stake. While some federal offenses do not carry harsher penalties than state charges, most federal criminal convictions will carry longer terms of incarceration, heavier fines, and additional statutory penalties.

For example, federal drug crimes carry lengthy mandatory minimum prison sentences. Federal judges generally follow the Federal Sentencing Guidelines, which establish minimum mandatory sentences and provide different factors that judges can consider to aggravate or mitigate sentences. People who are convicted of federal crimes are sent to federal prison instead of state prison.

Since the federal government and federal prosecutors generally have more resources and staff available to devote to federal prosecution, defending against federal charges can be more difficult. In some cases, a state prosecutor might overlook evidence that would not be overlooked by a federal prosecutor because of this difference in staff and resources.

Types of Federal Crimes

USC Title 18 lists hundreds of different federal crimes. Some of the most common types of crimes that are prosecuted at the federal level include the following:

  • Arson
  • Bank robbery
  • Child pornography
  • Counterfeiting
  • Credit card fraud
  • Drug trafficking
  • Identity theft
  • Internet crimes
  • Mail fraud
  • Money laundering
  • Sexual assault
  • Tax fraud and tax evasion
  • Weapons charges
  • White-collar crimes
  • Wire fraud

Many of these offenses can also be prosecuted at the state level instead of the federal level. If the federal government files federal charges, Pennsylvania state prosecutors will normally dismiss their state criminal charges and allow the federal prosecutors to take over. By contrast, people have fewer protections against being prosecuted for the same criminal conduct under federal law, and nothing precludes the federal government from prosecuting someone who has been prosecuted for the same crimes under state law.

Get Help from DiCindio Law

The experience and resources of federal prosecutors require defendants to mount strong defenses when they are facing federal charges. If you have been federally indicted or learned that you are under federal investigation, you must retain a criminal defense lawyer who is experienced in practicing in both state and federal court. If you are being investigated but have not yet been indicted, your attorney might be able to secure an agreement from the federal prosecutor not to pursue an indictment in exchange for a civil resolution, depending on your charges. If you have already been indicted, your attorney can carefully investigate your case to build the strongest possible defense. Contact DiCindio Law today to request a consultation at (610) 430-3535.

What Is The Difference Between State Charges And Federal Charges?

Most people who are charged with crimes in Pennsylvania will face charges in state court. However, there are some cases in which people will be federally charged for certain criminal offenses. While criminal laws are generally the province of state legislatures and are prosecuted at the state level, certain offenses that involve interstate commerce or that happen on federal lands can be prosecuted at the federal level. If you are facing federal charges, you should retain an experienced criminal defense lawyer who practices in federal and state court. DiCindio Law is prepared to represent people who are facing state or federal criminal charges.

When Can People Face Federal Criminal Charges?

Before someone can be charged federally, the offense must involve some type of federal issue. For example, you could face state charges for dealing drugs. However, if you brought drugs into the state from a different state or country, you could face federal charges since doing so would involve interstate commerce. You can similarly face federal charges for certain types of white-collar crimes, including wire fraud, mail fraud, tax fraud, or others. If you commit a crime on federal property, including a military base, U.S. Post Office, or another, you could also face federal criminal charges. Certain criminal offenses are only crimes under state or federal law, but others, including drug distribution or trafficking, bank robbery, or kidnapping, could be charged under both state and federal laws and could be prosecuted at either level.

Understanding Federal Jurisdiction

Most criminal offenses are prosecuted at the state level and are violations of state criminal laws, including robbery, murder, arson, theft, and others. In these types of cases, state legislators have enacted laws to regulate the actions of people, and the state will have the power to decide them.

Federal criminal offenses include fewer types because federal legislators are only allowed to pass laws that deal with a federal or national interest. For example, since the federal government has the sole authority to print U.S. tender, counterfeiting is a federal crime.

What constitutes a federal interest is defined broadly. The federal government will have jurisdiction over the following types of crimes:

  • Crimes that occur on federal land or those that involve federal officials
  • Crimes involving deception, misrepresentation, or fraud against the federal government or a federal agency
  • Crimes when the defendant crosses state lines while committing a crime
  • Crimes conducted over state lines, including wire fraud or mail fraud
  • Customs and immigration violations

Differences Between State And Federal Court

State and federal courts differ in a number of different ways. While state court judges have to be re-elected to continue serving, federal judges are appointed by the U.S. President to serve for life. Federal agents with federal agencies, including the DEA, ATF, FBI, or ICE, investigate federal crimes, and assistant U.S. attorneys prosecute them. State criminal offenses are investigated by local police officers, county sheriffs, or state agents, and they are prosecuted by city attorneys or state district attorneys.

Differences Between State And Federal Court

Can You Be Prosecuted in Both State and Federal Court?

Some cases will violate both state and federal law. While cases will normally be filed in either federal or state court, there is no bar against prosecuting a criminal case in both federal and state court simultaneously when the conduct violates both federal and state law.

Some people believe that the Double Jeopardy Clause of the U.S. Constitution prevents them from being charged in both state and federal court for the same criminal conduct. However, while the Double Jeopardy Clause does prohibit trying someone twice for the same offense, it contains a separate sovereign exception. Under this exception, a person can be tried in both state and federal courts since the federal and state governments are separate.

For instance, the four Los Angeles Police Department officers who were accused of beating Rodney King in the early 1990s were acquitted by a jury in California state court. The officers were then charged under federal law, and two officers were then convicted of violating his constitutional rights in federal court.

Some states have state laws that prohibit people from being prosecuted in both federal and state courts. For example, New York prohibits people from being prosecuted for the same crime at the state level when they have already been prosecuted under federal law when both laws are meant to stop the same types of harm.

Similarly, under 18 Pa. C.S. § 111, people cannot be prosecuted in state court after they have already been prosecuted in federal court for the same crime when the federal and state offenses prohibit the same types of harm. However, the federal system does not include the same degree of protection, meaning that federal prosecutors might prosecute someone who has been charged in state court for the same conduct. In most cases, Pennsylvania state prosecutors will dismiss state charges when the defendants are charged federally.

Penalties in State Court vs. Federal Court

In most cases, federal penalties are more severe than state court penalties. This is because most federal judges follow the federal sentencing guidelines when handing down sentences. These

penalties are frequently longer than what someone might face for a similar crime in state court. For example, federal drug offenses carry long mandatory minimum prison sentences. People who are convicted of federal offenses will be sentenced to federal prison instead of state prison.

Talk to an Experienced Criminal Defense Lawyer

If you have been charged with a crime under state or federal law, you should speak to a criminal defense lawyer as soon as possible. Because the rules, procedures, and penalties in federal court are different than state court, you should retain a lawyer who has experience practicing in both when you face federal charges. Regardless of whether you are facing state or federal charges, having the help of an experienced attorney might allow you to secure a more favorable outcome. Contact DiCindio Law today to schedule a consultation by calling 610.430.3535.

Can A Lawyer Help With A DUI In Chester County PA

Many people who are arrested for DUIs in Chester County might not know what to do. Some hesitate to talk to criminal defense attorneys because of concerns about the expense. They might also think that they should just plead guilty to get the case behind them faster or believe that they can defend themselves without help.

While you are not required to retain a lawyer to defend against your DUI charge, trying to represent yourself or entering a guilty plea without legal representation can result in harsher consequences than you might otherwise face. When you are facing any type of criminal charge, it is important to do everything you can to prepare a strong defense and protect your rights and freedom.

A DUI conviction can have far-reaching impacts on your life even beyond the criminal penalties you might receive. You could lose your job and have trouble finding new employment. A DUI conviction will give you a permanent criminal record that landlords, employers, banks, and insurance companies can see when they conduct background checks. Your insurance rates could go up and remain high for several years, and your insurance company might choose to terminate your policy.

In Chester County, a first-offense DUI conviction can result in a sentence of up to six months in jail, a fine of up to a maximum of $5,000, a 12-month license suspension, drug and alcohol assessment, and other penalties that depend on your blood alcohol concentration. It is unwise to try to defend against a DUI on your own without the help of an experienced attorney. Here is some information from Chester County DUI lawyer Michael DiCindio with DiCindio Law about how retaining an attorney can help with a DUI charge.

Expense of a Conviction vs. Expense of a Lawyer

While retaining an attorney costs money, being convicted of a DUI can be more expensive over the long term than the cost of an attorney. If you are convicted of a DUI, you will have to pay stiff fines, higher insurance rates, and might be ordered to install an ignition interlock device in your car at your own expense. A DUI conviction could cause you to lose your job and result in limited job opportunities in the future.

Some people believe that entering a guilty plea will save money because they think that being charged with a DUI means that they will be convicted. However, a good Chester County DUI lawyer can defend against the allegations and could help to avoid a conviction, helping to avoid some of the long-term costs.

Your attorney might be able to secure a plea agreement to a non-DUI offense or a reduction in the assessed penalties. If this is your first DUI, you might qualify for a Chester County DUI program called Accelerated Rehabilitative Disposition (ARD), which can shorten any period of license suspension, keep your DUI off of your criminal record, and ensure that you will not be sentenced to jail.

A DUI conviction can make it hard for you to find a good job, get to and from work or school, find a car insurance company, or get the apartment or house that you want. If you are a licensed professional or have a commercial driver’s license, you could lose your career. Entering a quick guilty plea can cause repercussions that you might not initially realize. A DUI attorney can help you to mitigate these risks by aggressively defending against your charges.

Expense of a Conviction vs. Expense of a Lawyer

Knowledge and Experience Are Invaluable

Defense attorneys go through years of legal education and must pass difficult tests to practice law. They have in-depth knowledge of the laws and courtroom procedures. They also understand how the police are supposed to conduct DUI stops and investigations and can carefully review the facts of your case to challenge the way the officer pulled you over, administered the field sobriety tests, gave the Breathalyzer test, and other issues in your case. Because of their knowledge and experience, DUI defense lawyers might be able to secure a much more favorable plea agreement than you might secure on your own, and depending on the facts, an attorney might win an outright dismissal of your case.

The prosecutor assigned to your case will be happy for you to try to represent yourself. However, doing so is not a good idea. Even attorneys who are charged with DUIs choose to retain DUI defense lawyers to represent them. This is because it is difficult to be objective about your defense when you are the person who is facing charges. It is best for you to talk to a defense attorney as soon as possible after your arrest for help with a DUI.

Ways a DUI Attorney Can Help in Chester County

There are multiple ways a DUI attorney in Chester County can help you fight your case, including the following:

  • Reviewing the evidence to identify problems in the state’s case
  • Applying the relevant case and statutory law
  • Explaining your charges and the potential penalties
  • Filing evidentiary motions to challenge the admissibility of certain types of evidence in the case against you
  • Identifying and implementing the best possible defense strategies
  • Helping you to apply for the ARD program
  • Representing you at an administrative hearing on your driver’s license
  • Securing a favorable plea agreement through negotiation
  • Potentially winning dismissal of your charges
  • Appearing on your behalf and speaking for you in court
  • Helping you to understand whether it makes sense to take your case to trial
  • Litigating your case for you

Talk to an Attorney at DiCindio Law

If you are facing DUI charges, getting help from an experienced DUI lawyer is a good idea. Simply because you have been charged does not mean that you will be convicted. With the help of a strong defense lawyer, you might secure a better resolution to your charges and might win a dismissal of the charges against you. Contact DiCindio Law today for a consultation by calling (610) 430-3535.