Philadelphia Criminal Defense Lawyer & Attorney : Peter C. Amuso Law Firm : Montgomery, Bucks, Chester, Delaware County Pennsylvania

 You've been arrested, you've posted bail, and you had your preliminary hearing.  At the end of your preliminary hearing, the judge held over your charges for trial, and gave you a date for your arraignment.

Are you going to jail after your arraignment?  Will you have to testify?  Can your family be there?  What happens at the arraignment?

Two words: not much.  

The Formal Arraignment is an important procedural moment in the life of a criminal case, as that is when the case formally begins in the Court of Common Pleas.  Your lawyer has to enter his appearance, even if he represented you at the preliminary hearing.  The District Attorney's Office presents the "Information, " or the official statement on what charges have been brought against you as a result of your preliminary hearing.

But nothing of substance happens.  In Philadelphia, judges do not preside over arraignments- trial commissioners do.  In the suburban counties, most counsel advise their client to waiver the arraignment, using a special form signed by both the attorney and the client.  A copy of the information and discovery from the government usually arrives in the mail about two weeks later.

Indeed, it is at the Pre-Trial Conference about two months later  where will progress will occur.  At that point the legal issues will be clearer to all involved.  If the matter cannot be resolved then, it goes on a trial list for a few weeks after that.

Bottomline: In Philadelphia and the suburbs, you will go to trial roughly 6-7 months after you are arrested.  Investigations and interviews should occur early on in the process.

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Another day, another friendly reminder from the Commonwealth Court that your driver's license is a privilege, and not a right.  In the just-decided Osselburn case, the Court explicitly states that even if the police pull your car over without probable cause, you must still consent to the breathalyzer or blood test when asked.  If you do not consent, your driver's license will be revoked for one year, with even more significant consequences if you have a commercial driver's license.

if, however, you do consent to the test, the only way your license can be suspended is through the criminal legal process.  If the police stopped your car illegally, then any evidence found after the stop will likely be thrown out, or "suppressed."  This would include the results of the breath or blood test to which you consented.

So again, nothing is to be gained, and a driver's license to be lost, by refusing a breath or blood test when the police suspect you of driving under the influence.

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I've written earlier about the need to hire a lawyer as soon as possible if you are facing, or think you will be facing criminal charges.

Over the weekend, one important procedural milestone came up twice in conversations with folks: the preliminary hearing, which occurs ten days after you are arrested. Often times, lawyers will charge a small fee to "cover" the preliminary hearing.  Just as often, a defendant will wait until after the preliminary hearing before hiring a private attorney, "just to see how things shake out" before spending money.

Here's how things will shake out, 9 times out of 10: the judge will hold all the charges over for trial, and you will have lost your only opportunity to cross-examine witnesses before your trial. 

I cannot emphasize about important the preliminary hearing is in the preparation of your case.  In Philadelphia, in particular, it is your best chance to get the most serious charges dismissed, although I have had success getting charges dismissed recently in the suburban counties as well.  And whether any charges get dismissed or not, your attorney can lay the groundwork for a suppression motion or other procedural tools later on in the process, by cross-examining investigators and witnesses at the preliminary hearing.  In Philadelphia, an official transcript of every preliminary hearing is made automatically.  In the suburbs, however, there is usually no court reporter, and thus no transcript you can use later.  I always bring a court reporter to the preliminary hearings I handle privately in the suburbs.

In short it, if you are going to hire someone to represent you, do it before the preliminary hearing.

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I am not originally from Philadelphia. 

I am a proud alum of Kane Area High School in Kane, McKean County, Pennsylvania.  Earlier this week, I was interviewed by The Kane Republican, the daily newspaper in town.  After we talked about some of the bigger cases I have handled over the years, both as a prosecutor and as a defense attorney, the reporter asked me whether there was any case out there right now that I would want to prosecute.  It was interesting question, and one that I had to think about for a minute.

But only for a minute.  I told the reporter that if I could be assigned as a Special Assistant U.S. Attorney, I would leave my practice in a heartbeat to prosecute Mark Ciavarella and Michael Conahan.

Who are Mark Ciavarella and Michael Conahan?  They are two men who somehow got elected as judges in Luzerne County (just south and west of Scranton) and then used the immense power of their judicial robes to send children to prison in exchange for payments from the owner of local private juvenile detention facilities.  Together, the two of them made $2.6 million dollars and ruined the lives of hundreds of families.  Separately, they have shaken the foundations of our system of justice.

Our system depends on the integrity of our judges.  If a prosecutor goes overboard, the defense attorney is there to suppress evidence and get charges thrown out.  If a defense attorney unfairly attacks the victim on the stand, the prosecutor is there to protect her and to seek justice for her from the jury.

But if a judge lies and cheats, there is no adversary to call him on it.  We pay our judges decent salaries, give them staff and clerks, and provide them big offices and pensions so that they can do one thing: concentrate on the law and its just interpretation.  Our society depends on this.

No prosecutor could get a sentence long enough for Ciavarella and Conahan, or a punishment severe enough for the Constitutional damage they have wrought.  But I would sure like to try.

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One of the most frequent questions I get comes from people who call me after their trial is over:

"How can I get my record expunged?" 

That is, folks want to erase any record of their arrest or conviction from their public criminal files.  Expungements have become increasingly important as the internet has made significant portions of criminal records readily available to potential employers or schools.  In the old days, if you were convicted of simple assault during a hunting trip in McKean County, someone would have to make the seven hour drive to Smethport, wait until the Prothontary and Clerk of Courts Office opened, and spend a day going through stacks of old files. 

Now, they can just type your name here.

First, a hard truth: a conviction cannot be expunged in Pennsylvania.  It doesn't matter how long ago it was, how young you were, or how it will negatively impact your ability now to get a security clearance or a promotion.  Once you are convicted of a misdemeanor or a felony, it stays on your record.

The only exceptions to this ironclad rule are summary offenses, also known as citations.  These are matters like very small shoplifting offenses or disorderly conduct citations, were you simply paid a fine to the local district judge.  Under a new law, if you remain arrest and conviction-free for five years following your summary conviction, you can get that conviction expunged.

Even if you can't get those old convictions expunged, you can be pardoned by the Governor. Unlike the politics and histrionics surrounding Presidential pardons, any citizen can apply for a pardon directly through the Board of Pardons in Harrisburg.

If you are acquitted of a charge, that is found not guilty, you are entitled to an expungment of that charge from your record.

The tricky part comes if you pled guilty to one charge.  Are you entitled to an expungment of the remaining charges?  Often, the state will argue that you are not, as law enforcement needs to keep records of what you were suspected of doing.  Of course, if the state withdraws a charge because they do not have enough evidence to convict you, then should get that information expunnged.  Commonwealth v. Hanna is a case decided in January that covers the finer points of this nuanced issue.

If after reading this, you think you are eligible for an expungement, talk to a lawyer who can explain the process of pettioning for an expungment, which typically involves consultation wtih the local District Attorney's Office.  A lawyer can also help you through the pardons process, although you do not need a lawyer to apply for a pardon.

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I've written in the past about the little-known, but very serious, provision of the Pennsylvania Vehicle Code which says that while no one has to submit to a blood test or breathalyzer after a DUI arrest, anyone who refuses loses their license for a year.  My advice remains the same: CONSENT TO THE BLOOD TEST.  CONSENT TO THE BREATHALYZER.  DON'T REFUSE.  Results from those tests can still be challenged in a criminal case.  However, refusing those tests means your license will be suspended in a civil matter, where the grounds for a challenge are very narrow.

And they keep getting narrower.  I had recently written about the Yourick decision, but it has now been overturned by the Commonwealth Court.  The matter is on appeal to the Pennsylvania Supreme Court, but that will take a year or two.  Further, the Commonwealth Court just ruled that if you grab the required written warnings out of the hands of the police officer arresting you, he does not have to read you the warnings.

Again, the bottomline is that if you are put under arrest for DUI, and asked to consent to a blood test or a breathalyzer, CONSENT!

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It happened again today- a mother called me to hire me to represent her son, who is facing assault charges, months after the crime occurred and much damage has been done to his case.  

When I asked her when the preliminary hearing was scheduled, she told me that her son had represented himself at the preliminary hearing and waived it.  When I asked her whether her son had received the evidence from the District Attorney's Office, she said he had not asked for it as he was just trying to "deal with the situation on his own."  Now, with the case put on the trial list, he panicked and confessed to his mother that he had been arrested and charged months ago and asked for her help.

Now, I am certainly willing to represent him, and there is still much I can do for him.  However, critical deadlines have been missed and significant opportunities to learn more about the case have been lost.  The assistant district attorney on the case is much less willing to talk about a favorable offer now then she was before preparing the case for six months.

If you are someone who has just been arrested, or told there is warrant out for your arrest, or you just think that you may be charged with a crime, run, do not walk, to your nearest criminal defense attorney.  I am not just writing this in my own self-interest, but in your interest.  Invariably, the earlier someone comes to me, the better the results I can get for them.  it is easier to talk to a police officer deciding whether or not to charge someone, then it is to a prosecutor who has spent valuable resources on an expert witness who has completed his report.

Be sure to talk to any attorney you are considering hiring before you hire them.  Do not hire someone you with whom you are not comfortable, or in whom you do not have confidence that they will do an excellent job for you.

But hire someone.  You cannot deal with the situation "on your own."   it is not going to simply "go away."  Your family will still love you when you tell them the truth.  If you ignore it, it will just get worse.

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I have written in the past about how to bail out a loved one in Philadelphia.  But wait, you say- there are many places to get into trouble outside of South Street or Manayunk.  There's an active nightlife across Montgomery County- from Conshohocken to Skippack, with Norristown and Pottstown in between.  So how do you post bail for a loved one in Montco? 

The short answer is that you go to the county prison in Eagleville to post the bail, and your loved one will be released to you there.  If, however, bail is too high for you to post, your first stop will be a bail bondsman, who will then post the bail at the county prison for you.

A preliminary arraignment happens much faster in Montgomery County then it does in Philadelphia (mainly due to the organization of the criminal justice system by each small municipality), and so you usually won't have time to drive to whatever police station before the arraignment occurs and your child is transported to the county prison.  Therefore, you will have to post bail at the county prison, a facility formally known as the Montgomery County Correctional Facility, and informally known as Eagleville, after its location.

Another major difference between bail in Montgomery County and in bail in Philadelphia, is that, at least at the preliminary arraignment, bail in Montgomery County is often set as "straight bail" or "cash" ("STBL" on the docket sheet).  This means that a person has to post the entire amount of the bail in order to be released.  In Philadelphia, only 10% has to be put down.

So what to do if your son is initially charged with an aggravated assault after a bar fight, and bail is set at $150,000?  You call a private businessman called a bail bondsman, and pay them a percentage of the bail.  This is usually 8-10% of the bail depending on the circumstances.  Based on this payment, which is non-refundable, and a stack of paperwork you fill out, the bondsman will then go and post the full amount of the bail with the county.  Your child will then be released from prison.

Any criminal defense attorney worth their salt already has a relationship with a particular bail bondsman, which should make the process smoother.

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All of the information in my earlier post concerning bail procedures remains accurate, with one major exception: the cashier's office in the Criminal Justice Center now takes Visa and Mastercard!  This is a major improvement, as often the biggest obstacle on getting a loved one out of jail in the middle of the night was coming up with the cash to do so when your local bank is closed.

One detail, however, has not changed: the cashier needs to see proof of your social security number if you are posting $10,000 or more in bail.  In Philadelphia, almost all bail is set at 10% cash.  That is, if someone bail is set at $200,000, someone will have to give the cashier at the CJC $20,000.  So, if your loved one has a bail set at $100,000 or more, bring something with proof of your social security number when you post the bail.

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