Smile Pennsylvania Your Rights are Being Violated

Every one needs a break.  Even a hardworking Pennsylvania DUI Lawyer needs to lay back every once and a while.  Labor Day weekend is a great time to spend time with family and friends, relax and have a grand ol’ time.  However, the Pennsylvania State Police is busy at work planning on how to jam roads and treat us all like criminals by setting up our favorite Labor Day Weekend tradition:  Pennsylvania DUI Checkpoints.

That’s right folks! Right here in beautiful Pennsylvania, DUI lawyers, doctors, teachers and every common citizen who is absolutely innocent of any crime will be stopped and searched and generally treated like a criminal.  All so police can nab those one or two suspects out of hundreds or thousands stopped and hail their success and efficiency. Here is the latest:

Police in Pennsylvania plan DUI crackdown for Labor Day weekend

As part of a national DUI crackdown campaign, sobriety checkpoints will be in effect in Dauphin, Cumberland, York and Adams counties from 6 p.m. Friday to 6 p.m. Monday.

More than 600 Pennsylvania police departments, including the Pennsylvania State Police, will participate in the crackdown, setting up extra DUI checkpoints for the holiday weekend.

Roving DUI patrol cars will also be making their way around Lancaster County during those hours and could also pop up in other counties.

Last year, there were 254 alcohol-related crashes and 8 fatalities in the eight-county District 8 region over Labor Day weekend.

Note: District 8 includes the following Pennsylvania Counties: Perry, Dauphin, Lebanon, Lancaster, Cumberland, Adams, Franklin and York.

I have blogged in the past about how horribly inefficient these DUI checkpoints are and how the DUI statistics PennDOT and other agencies published should be taken with a grain of salt. I have also examined the unscrupulous methods being used by police around Pennsylvania to dance around trounce on our Fourth Amendment Rights.

However, none of this seems to matter to MADD and the other powerful DUI lobbies.  They use these checkpoints to score political points while ignoring the real problem which is the lack of DUI training the police actually receive.  Why spend the time in effort doing things the right way when they can much more easily violate our rights?

If you find yourself being charged with a DUI, please call 1-866-MCSHANE to talk to one our qualified Pennsylvania DUI Lawyers.

Dear Pennsylvania DUI Lawyer,

I was pulled over in Berks County and the officer asked to perform some tests like walking a straight line, standing on one leg and following his finger with my eyes.  I thought I did well on them but he booked me anyways.  What should I do?

The Standardized Field Sobriety Tests (SFSTs) are a series of tests used by officers to evaluate those they suspect of DUI.  Most, if not all of the police out there believe that it was intended to “record” impairment when the creators of the test clearly say this is not so.  It is at best a screening tool used to determine the likelihood that someone may be above 0.10 or 0.08 BAC.  There is no real validated and robust research validating these roadside tests.  There are some scientific-like research behind their design.  In these studies that the Government points to are not peer-reviewed and they evidence some very fundamental design and experimental flaws.  The percent false positive are unacceptably high.  The likelihood ratios and positive predictive power are not where real science would want it.  In the real world and in most cases, officers incorrectly instruct drivers on how to perform them and incorrectly interpret the results.  So even if it was a valid method, then it will lead to an invalid conclusion if there is deviation from the method.  I have previously blogged before about how expert research show that 93% of the time officers incorrectly administer the DUI roadside tests. Scientific studies also show that incorrectly administered roadside tests, do not yield the benefit of the science behind their design.

You should certainly consult with a qualified Pennsylvania DUI Lawyer to review your case and identify potential areas to challenge.

Here is s a list of additional posts you should read that help clarify some of the issues related to SFSTs:

Roadside DUI Test: Standardized Field Sobriety Tests Explained

Do the roadside DUI Tests Actually Measure Impaired Driving

Are the Field Sobriety Tests Scientifically Proven?

And Finally..

1 arrested for DUI during checkpoint in Lebanon County

One person was charged with driving under the influence during a state police DUI checkpoint late Friday night and early Saturday morning in Union Township, Lebanon County.

Police said 118 drivers were stopped between 11 Friday night and 3 Saturday morning. In addition to the checkpoint at the intersection of state Route 72 and Pine Tree Road, police also used roving patrols on other state roads in the county.

In addition to the DUI arrest, police also said they made two arrests for possession of marijuana or drug paraphernalia. Five traffic citations and 26 warnings were also issued.

Pennsylvania DUI Checkpoints

Here we have a situation where late at night when people who are tired AND WHO ARE TOTALLY INNOCENT OF ANY WRONG DOING are trying to get home just to be  unpleasantly surprised that their neighborhood police have blocked traffic and want to stop them, search them and their cars.  They are being stopped and searched without any probable cause, a right preserved in The Fourth Amendment to the Constitution and Article I Section 8 of the Pennsylvania State Constitution.  In some states, courts have ruled DUI checkpoints to be unconstitutional.  However, powerful lobbies continue to push politicians to enact laws allowing these checkpoints despite the constitutional issues and high costs associated with them.

So 118 people were stopped, violated and inconvenienced to what ends…to arrest one person for DUI. That is less than 1%.  I cannot imagine another thing that government does that has a less than 1% success rate that would continue except for DUI checkpoints.  That is horribly inefficient and a grand waste of everyone’s time- but of course the politicians behind this will try to spin this to make themselves look like heroes.

Pennsylvania DUI Lawyer Bryan DePowell Joins The McShane Firm

The McShane Firm is proud to introduce a new addition to our litigation family, Pennsylvania DUI Lawyer Bryan E. DePowell. Bryan has previously served as a police officer in northeast Pennsylvania for over seven years and brings this knowledge and experience to work for those citizens accused of a DUI in central Pennsylvania.  He also worked for some time in the Dauphin County District Attorney’s Office.

A graduate of Widener University School of Law in Harrisburg, Bryan has worked at the Dauphin County District Attorney’s Office where his responsibilities included preparing motions for presentation to the Court of Common Pleas, representing the Commonwealth in juvenile detention and adjudication hearings, organizing, preparing and conducting both jury and bench trials, drafting legal memoranda regarding variable and complex legal issues, and assisting in all aspects of criminal prosecutorial practice.

Bryan has also been elected to General Membership to the National College for DUI Defense and recently attended a highly technical DUI seminar which is the NCDD Summer Session held at Harvard Law School.  He is a perfect fit for our team due to his experience, diligence and organized approach to DUI defense.  To set up a free consultation about your DUI case with Attorney DePowell,please call 1-866-MCSHANE.

Dear Pennsylvania DUI Lawyer,

I was charged recently with a DUI after the portable breath machine showed a BAC of .12. I only had a couple of drinks and that was over an hour before I drove.

In short, there are many issues with the breath machines used by the police in Pennsylvania. These machines would never be used by a scientist to measure blood alcohol because they are not specific to alcohol and if not calibrated correctly can create woefully inaccurate results.  Besides, unlike the full evidentiary breath test devices, the ones used at roadside are not admissible under Pennsylvania law to prove a person’s BAC at trial.  It can only be used if there is reasonable suspicion of DUI by the officer and only for purposes of determining whether or not there was enough probable cause to arrest someone and only if properly calibrated, maintained and properly used.

The truth is you need an experienced Pennsylvania DUI Lawyer who is specifically trained on these machines and can expose their weaknesses and flaws.  All of the attorneys at The McShane Firm are certified as instructors on all of the breath machines used by police in central Pennsylvania.  We own most of the machines the police use and can challenge faulty results with knowledge and experience.

If you would like to ask a question, please submit it via the contact us link.

Pennsylvania State DUI Troops: Residents of Carbon, Columbia, Lower Luzerne, Monroe Counties Beware!

If we continue to ignore the training problem that is rampant in Pennsylvania’s police forces, we will end up with well-meaning but dangerously under-educated police officers jumping to conclusions that are not sound or bending the law and violating our rights:

Drunk drivers: Police are looking for you

There was a time when troopers stationed at the state police barracks in Swiftwater would track crimes and car crashes in their coverage area using a large map of Monroe County posted on the wall in the station. Color-coded pins were pushed into the map after a crash, arrest or crime.

The map and a few of its now-unused pins still stare down from the wall, but troopers have a much more sophisticated system now to piece together where and when crimes are taking place.

Since 2003, the troopers stationed at Swiftwater have used mapping technology to target patrols at roads with a high volume of drunken driving crashes and arrests.

Last year, police at the Swiftwater barracks made almost 200 more DUI arrests than the previous year — a 75 percent increase from 2008 and the largest jump at any of the 88 state police barracks in Pennsylvania last year.

(We have discussed Pennsylvania DUI statistics before so please take these numbers with a proverbial grain of salt.)

The Pennsylvania State Trooper in this article really makes some amazing admissions:

Far more useful in catching drunk drivers is the “roving DUI patrol,” Reznick said. During a DUI patrol, troopers are assigned to target areas that the PROphesy program has highlighted as heavily traveled by drunken drivers during the likeliest hours.

In a traffic stop, troopers look for more than just the obvious signs of impairment, Reznick said.

“It doesn’t have to be the traditional guy weaving all over the road,” he said.

Police might stop someone for an equipment violation. “It’s very difficult not to be able to find some type of equipment violation even on a new car,” Reznick said.

“There’s a multitude of things. There are little things built into the vehicle code, like something hanging from your rearview mirror is against the law.  [Blogger's note:  that is not true, by the way unless it materially obstructs the safe operation of the vehicle, which most hanging objects do not]

“Do we stop people and give them $100 citations for that? Mostly not. But it’s probable cause to pull over a car and see if there’s anything else going on.

“If we pull you over for one of these little equipment violations and you’re otherwise driving safely and not driving under the influence, then ‘Here’s your warning, sir,’ and you’re on your way,” Reznick said. “But that’s how you capture the DUI drivers also.”

Amazing! In this country we have rights and one of those is protection from unlawful search and seizure as preserved in the Fourth Amendment. Here we have admission of pre-textual stops which are not proper.  Here the roving patrol officer or Trooper following this method is not only guilty of DUI tunnel vision but they are overtly treading on our rights by not demonstrating probable cause for a DUI stop.  Any drivers in Carbon, Columbia, Lower Luzerne, Monroe Counties who find themselves arrested for DUI under these circumstances should call The McShane Firm immediately so a qualified Pennsylvania DUI lawyer can assess your case.

Pennsylvania DUI Lawyer Justin McShane Earns Board Certification in DUI Defense

Any regular reader of this blog knows the emphasis The McShane Firm puts on advanced legal training for DUI.  No DUI lawyer in Pennsylvania has a training resume that matches mine.  In fact, by the end of the year I will have put in over 600 hours worth of advanced DUI and forensic training.  That’s the equivalent of 15 working weeks.

It’s only fitting that I recently became the first (and so far only) Pennsylvania DUI Lawyer to be Board Certified in DUI Defense. This certification is issued by the National College for DUI Defense and is the only Board Certification in DUI Defense accredited by the American Bar Association.

From the NCDD website:

In an effort to assist the public in recognizing lawyers who focus their practice on defending those accused of DUI and who have demonstrated their competence to do so, the Board of Regents certified its first lawyers in 1999. In 2003 the American Bar Association recognized DUI Defense Law as a legal specialty area of practice, and the following year the ABA accredited the College to certify lawyers in the DUI Defense Law specialty area. The NCDD is presently the only organization accredited by the ABA in this specialty field.

Board Certification in DUI Defense is only issued after completion of a rigorous examination process:

In order to be Board Certified, an applicant must satisfy certain minimum practice requirements and pass both written and oral examinations testing his or her knowledge of substantive and procedural law in this field. Specifically, the examination focuses on scientific issues, the NHTSA guidelines on field sobriety tests and drug recognition tests, as well as other legal and ethical issues applicable to the defense of drunk driving cases.

This is definitely an exclusive honor and a distinction that I am very proud of and it is a testament to the hard work I put in for the citizen accused of a DUI.  If you or someone you know is accused of a DUI in Pennsylvania call 1-866-MCSHANE and sit down with one of our highly trained DUI lawyers.  Only The McShane Firm, Only the best.

Dear Pennsylvania DUI Lawyer,

Do your lawyers really take DUI cases all the way to a jury trial?  The reason I ask is because out of all of the lawyers I have asked in the Harrisburg area, you are one of the few that actually do this.

-Adrian, Harrisburg Pennsylvania

Dauphin County Courthouse- Where Harrisburg DUI Cases are Tried

At The McShane Firm all of our lawyers regularly take Pennsylvania DUI cases to trial.  It is our goal to use every legal avenue allowed to vigorously defend your case.  One of the rights that we are allowed under the constitution is the right to a trial.

Please keep in mind, each case is inherently different and there is no “magic potion” to solve all DUI cases.  Based on our experience and knowledge our highly qualified DUI lawyers will try to get the best resolution possible for your case.  If that resolution is available at an earlier stage, we will advise you on that and if not we are ready take a DUI case to trial.  We are not afraid of doing that.

It has become a rare practice amongst Pennsylvania DUI Lawyers to actually take DUI cases to trial.  The underlying reason is that most attorneys handling DUI cases are what I call DUI Dumptrucks.  They take on as many cases as they can and try to process them as quickly as possible often recommending a high number of guilty pleas without ever filing a motion, getting discovery or exercising any type of due diligence.  They dump the case, just like a dumptruck dumps its load.

At The McShane Firm we are different.  We are true trial lawyers. We handle each case whether it’s a first time DUI or a DUI homicide with the utmost care and attention because we understand how important the outcome of this case is for you.  You will never find us under-prepared or lost for answers because we spend countless hours honing our skills in advanced DUI training seminars.  We go to all these lengths to make sure we offer you the best possible defense for your case.  We are at home in the courtroom and to the best of my knowledge, no law firm in central Pennsylvania takes as many DUI cases to trial as The McShane Firm.

If you would like to ask a question, please submit it via the contact us link.

Drivers on Prescription Drugs Are Hard to Convict

The accident that killed Kathryn Underdown had all the markings of a drunken-driving case. The car that hit her as she rode her bicycle one May evening in Miller Place, N.Y., did not stop, the police said, until it crashed into another vehicle farther down the road.

The driver could not keep her eyes open during an interview with investigators, according to the complaint against her, and her speech was slow and slurred. But the driver told the police that she had not been drinking; instead, the complaint said, she had taken several prescription medications, including a sedative and a muscle relaxant.

She was charged with vehicular manslaughter and driving under the influence of drugs — an increasingly common offense, law enforcement officials say, at a time when drunken-driving deaths are dropping and when prescriptions for narcotic painkillers, anti-anxiety medications, sleep aids and other powerful drugs are rampant.

The issue is vexing police officials because, unlike with alcohol, there is no agreement on what level of drugs in the blood impairs driving.

DUID in Pennsylvania with Prescription Drugs

This is becoming a real problem all across the country and right here in Pennsylvania.  Some of the challenges that these cases present include:

• The wide variety of drugs available and how they interact with the human body and within the body of the specific person in question
• Dosage: how much is considered too much to operate a vehicle safely and whether or not a person can be held criminally responsible for bad dosing by the physician that prescribed the drugs.
• The widespread usage of these drugs
• The public in general is unaware of the effects of these drugs as opposed to the high level of familiarity with the effects of drinking alcohol
• Not enough experts who understand the behavioral, psychomotor and cognitive functioning effects of these drugs
• Dosage versus response

You should read the article in its entirety to see how complex these cases are.  One point that really caught my attention was:

Unable to prove impairment with blood tests, prosecutors in drugged-driving cases rely heavily on the testimony of “drug recognition experts,” law enforcement officers trained to spot signs of impairment in drivers. But there are only about 7,000 such officers nationwide, Mr. Hayes said, not nearly enough to respond to every traffic stop that may involve drugs.

Drug Recognition Expert (DRE) is a certification course offered by the National Highway Traffic Safety Administration (NHTSA) and the International Association of Chiefs of Police (IACP).  I can proudly say that all of the Pennsylvania DUI Lawyers at The McShane Firm are certified DREs and have the ability, experience and expertise to defend these complex cases.

The validity of the DRE program is currently in debate.

Keep in mind that Driving Under the Influence of Drugs (DUID) is prosecuted as if it were a DUI  of the highest level (BAC over .16) and thus carries mandatory jail time, 12-18 month license suspension, and heavy fines, if convicted.  If you or someone you know is charged with DUID in Pennsylvania, please call 1-866-MCSHANE to set an appointment with one of our knowledgeable DUI attorneys.  We can review your case and help chart out the best course of action to protect your rights.

I am currently defending  Tyshaunt Love of Harrisburg who was convicted of the 1996 murder of his ex-girlfriend Iris Belcher.  Love has spent the last five years in jail after he was convicted of third-degree murder in 2005.  Dauphin County Judge Bruce Bratton sentenced Love to 15 to 30 years in prison.

Matthew Kemeny of The Patriot-News, did a piece on this case:

Harrisburg man convicted of murder claims innocence, says another man confessed to the slaying

If Tyshaunt Love killed his ex-girlfriend, why did someone else reportedly confess to the slaying?

And why didn’t the Dauphin County jury that convicted Love know this?

An attorney for the Harrisburg man convicted of the 1996 murder of Iris Fennell Belcher will ask for a new trial today, based on what he believes was insufficient evidence presented to the jury at trial.

“I don’t know if he did it or didn’t do it,” said Justin McShane, who is representing Love in his appeal. “But I know this: That jury didn’t get all the information. All he and I are asking for is to make it fair.”

The major point of contention here is that two men heard a confessions made by La-Qun Williams admitting that he killed Belcher.  However, the Dauphin County jury never got to hear evidence about the confessions because the public defenders representing Love at the time were not able to get Williams to appear in court.  Williams at the time was incarcerated in New York and the public defenders were unaware of the legal options available to compel him to appear in their case.

My argument here is that William’s confessions when examined along with:

1. forensic evidence connecting him to the crime scene – Belcher’s blood on his boots and
2. a very good motive- he blames Belcher for snitching on him in a 1995 rape case that got him a 25 year sentence

This is major evidence in this case.  This evidence needs to be carefully examined in a trial.  This is why I am pushing for a new trial, so the jury can make a determination based on all of the evidence available.

This is what defense attorneys all across the country do every day.  We push to have all of the evidence fully and properly examined so juries can make their determinations based on the truth.  Whether its DUI, homicide, assault or any other charge, every one of us is carrying out our own innocence project.