Criminal Law Frequently Asked Question’s

By: William E. Moore, Esquire

• What happens if I am arrested?

If you are arrested for breaking the law, the police will take you to the police station, fingerprint and photograph you, type up a criminal warrant and take you before a District Justice to have the warrant approved.  The District Justice will set bail for your appearance at a future preliminary hearing.  If you are unable to post bail, you may be incarcerated pending appearance in court.  If bail is posted, you will remain free pending final disposition of your criminal charges.

At the preliminary hearing, if the Commonwealth proves a crime was committed and you were probably the one who committed it (prima facie case) then the matter is held for trial in the Court of Common Pleas.  Following the preliminary hearing, an arraignment date will be set in the Court of Common Pleas at which time you are formally advised of the criminal charges.

After your formal arraignment, which can be waived if you are represented by an attorney, your case will proceed to either a jury trial, trial before a judge or a guilty plea.  Additionally, you may qualify for several types of pre-trial dispositions which will result in avoiding a criminal record.

• Can they use force to arrest me?

A police officer may use as much force as is reasonably necessary to arrest you.  Recently, the news has been filled with cases where police have been accused of using excessive force in subduing an individual whom they were attempting to lawfully arrest.

• What is a search warrant?

Generally, search warrants are issued by District Justices upon review of an Affidavit of Probable Cause submitted by law enforcement officers.  The search warrant must state with particularity what is to be searched (house, automobile, etc.).  The warrant must also state with particularity what items the police are seeking.  The warrant must go on to state the probable cause (legal reason) the police are looking for these items in a particular place and why these items can be legally seized.  An obvious example is drugs in that they are illegal.  Another example would be police looking for stolen property.  Many times search warrants are not based on sufficient probable cause and can be challenged in court.  If the defendant successfully challenges the search warrant then all of the items found pursuant to the search warrant may be inadmissible at your trial.

• What is probable cause?

Probable cause is a legal definition for certain facts that indicate a likelihood of criminal activity.  A police officer’s hunch, with nothing more, will not satisfy the requirement.

EXAMPLE: Officer Doright observes Tom and Dick walking down the street.  Officer Doright has a hunch that Tom and Dick are up to no good.  Armed with nothing more, Officer Doright goes to the local judge and attempts to get a search warrant for the boy’s home.  Should a judge grant the warrant?

No.  A police officer’s hunch, with nothing more, will not satisfy the probable cause requirement.  However, if Officer Doright observed Tom and Dick conduct a drug deal, then probable cause may exist for a warrant to search their home.

• If a police officer knocks on my door and asks to search my home or any other property I own, do I have to allow the officer to conduct the search?

Unless the officer has a warrant, you are under no legal obligation to let the officer search your residence, automobile or other property.

• What if I agree to the search?

If you voluntarily consent to a search of your home, automobile, or person, then the officer can conduct a full search without a warrant.  Anything that the officer finds can later be used against you in court.

• What is the Plain View doctrine?

Police officers do not generally need a warrant to seize contraband that is in plain view if this officer is in a place that he or she has a right to be.

EXAMPLE: Officer Doright is standing in your doorway talking to you about the weather.  While talking, Officer Doright notices a bag of cocaine and a sawed-off shotgun on your couch.  Officer Doright can legally seize these items without a search warrant because they are in plain view.

• If I am arrested, can the officer search me?

Yes.  Police officers do not need a warrant to conduct a search after making an arrest.  After making an arrest, the officer can legally search the person being arrested and the area in the immediate control of the person.

• What is bail?

Bail is money or other property that is deposited with the court to ensure that the person accused will return to court when he or she is required to do so.  If the defendant returns to court as required, the bail will be returned at the end of the case, even if the defendant is ultimately convicted.  However, if the defendant does not come to court when required or violates his or her bail conditions, the bail will be forfeited to the court and will not be returned.

• What happens at a bail hearing?

The accused is brought before a district justice or judge when an arrest happens for a violation of a criminal law.  The district justice or judge will conduct a pre-trial bail hearing resulting in four possible results.  A judge holds an official arraignment later.

There are four possible results from the bail hearing:

• Recognizance - This is the defendant’s written promise to appear in court on the date set and abide by the terms set by the magistrate or judge.  No monetary pledge, cash deposit or security by property or professional bondsman is required.
  
• Unsecured Bond - This release pending court appearance is based on the defendant’s written agreement to appear in court on the date set and abide by the conditions set by the magistrate or judge.  It is backed by an agreement by the defendant to forfeit money to the court if she or he does not appear in court on the date set.
  
• Secured Bond - This is secured by either a cash deposit, a pledge of real or personal property, or a pledge by a third party that the defendant will appear in court on the date set and abide by the conditions of the release.  The judge may forfeit any type of security in the event the defendant does not appear in court on the date set.
  
• Ineligible for Bail - The defendant is denied a release pending court appearance.

The bail decision may be appealed to a judge who will re-examine the evidence.  A violation of any agreement of release pending court appearance could result in the issuance of an Order to Show Cause why the release should not be revoked.  A show cause hearing may also be issued by a judge for not appearing in court as agreed.

• What will happen at a preliminary arraignment?

The preliminary arraignment occurs at the same time the judge sets bail.  At the preliminary arraignment the judge set bail and formally advises you of the charges against you.  You may have an attorney appear with you at the preliminary arraignment, however, generally the matter is not delayed for that to occur.  There is no constitutional right for an attorney at the preliminary arraignment.  At the arraignment, the judge will set a date for the preliminary hearing.

• What will happen at the preliminary hearing?

A defendant who is charged with crimes is entitled to a preliminary hearing.  At the preliminary hearing, the Commonwealth has the burden of presenting evidence against the defendant.  The prosecutor must presents evidence of witnesses that prove an offense has been committed and that there is probable cause to believe the defendant committed it.  At this hearing, there is no verdict of guilty or not guilty.  Following the hearing, the District Magistrate will decide whether or not there is sufficient evidence presented for the matter to go to trial.  If the judge makes a finding of a prima facie case, then the matter is sent to the Court of Common Pleas for a formal arraignment and trial date.  If the judge does not find the Commonwealth has met its burden of proving a prima facie case, the charges are dismissed.  However, the Commonwealth may re-file the charges if they have additional evidence to present.

• What is DUI?

DUI is shorthand for Driving Under the Influence.  A person is guilty of DUI if he or she drives or is in actual physical control of a motor vehicle and is under the influence of alcoholic beverages or any chemical or controlled substance to the extent that they are unable to safely operate the motor vehicle.  Additionally, if the blood alcohol level is above a .08 in Pennsylvania they are deemed to be driving under the influence whether or not they can still control the motor vehicle.

• Does the car have to be moving for me to be guilty of DUI?

No.  You can be arrested for DUI if you are in control of a motor vehicle on the highways or public parking lot.  You need not actually operate the car in order to be arrested and found to be in control of a motor vehicle.  If you are seated in your motor vehicle in your driveway while the motor vehicle is running you cannot be convicted of driving under the influence because although you are in control of a motor vehicle it is not on a public highway.  Under the same situation, if the car is parked in front of your house, you could be arrested because the road in front of your house is a public highway.

• Do I have to submit to a breathe, blood or urine test?

No.  However, in Pennsylvania if you fail to submit to a breathe, blood or urine test, you will lose your driving privileges for a period of one (1) year.  If you are ultimately convicted of the offense of driving under the influence, you will lose your driving privileges for an additional year.  Therefore, it is usually not advisable to refuse to submit to a breathe or blood test.  If you believe you are being illegally arrested you should still submit and the legality of your arrest can be challenged later.  If you are correct and the arrest was illegal, then the result of the blood test will not be admitted against you.

• If I am arrested for DUI will I lose my license?

In Pennsylvania if you are convicted of driving under the influence you will lose your license for at least one (1) year.  Based upon prior offenses and how high your blood alcohol content, you could lose your license for a period in excess of one (1) year.  Additionally, Pennsylvania has a pre-trial program for first offenders called the Accelerated Rehabilitative Disposition (ARD).  If you qualify for this program, you will lose your license for a period of substantially less than one (1) year.  Usually one (1) to three (3) months.

• What else will happen to me?

Once again, this depends upon how high your blood alcohol reading and whether or not you have any prior convictions.  In Pennsylvania, there are mandatory sentences based upon prior convictions and how much alcohol or drugs are in your system.  It is absolutely imperative that you seek legal advice if you find yourself in this situation.

Rubin, Glickman, Steinberg and Gifford and is located in Lansdale, Montgomery County Pennsylvania.  Our office has six (6) criminal defense attorneys.  Most of them are former prosecutors.

At Rubin, Glickman, Steinberg and Gifford we handle all types of criminal matters from shoplifting to homicide.  A comprehensive list of the type of criminal case we handle include: