Frequently Asked Questions (FAQ)
Will ARD only expunge the marijuana charge or will it remove the alcohol charge as well?
In April of 2011 I was charged with misdemeanor possession of marijuana and was given the choice of ARD. Less than a year after that, I was charged with possession of alcohol and tobacco on school property. I took a $100 class and paid the fine for the tobacco charge. My question is will ARD only expunge the marijuana charge or will it remove the alcohol charge as well?
ANSWER: You should contact your ARD attorney. With that said, these expungements come under two different sections. One rule of criminal procedure (Rule 790) deals with expunging a misdemeanor offense (such as ARD) and the other (Rule 490) deals with expunging a summary offense. Therefore, you would have to refer to each of those sections to determine the process for expungement and also file two separate petitions.
My buddy was 20 years old, and the girl he was dating was 15, turning 16 in about 2 months. It was consensual, and her parents knew they were dating. What do you think?
ANSWER: You are correct under sub-section (a)(2) of section 3122.1 of the PA Crimes Code. But, if you look at sub-section (a)(1) the time is “four years or older but less than eight years older than the complainant.” Under this sub-section the crime is graded as a felony of the 2nd degree. I recommend your buddy speak with an experienced criminal attorney since this crime now has “Megan’s law” ramifications. Also, consent is not an issue, nor is parent permission, in a statutory sexual assault case.
Do you get put on Megan’s law if both parties were underage?
ANSWER: Under the recently passed SORNA law, juveniles 14 years of age or older that are adjudicated for specific sex offenses can be subject to Megan’s law. The specific offenses are: rape, involuntary deviate sexual intercourse, aggravated indecent assault, or conspiracy, attempt or solicitation to any of those crimes. There are many reasons why the young man may still be in placement other than being adjudicated delinquent for one of the above listed crimes.
My boyfriend violated his probation by getting a citation for disorderly conduct. Will he go to jail?
ANSWER: There are several variables that one would need to know to provide an informed opinion.
- Is this his first probation violation
- What crime was he originally convicted
- Has the probation officer provided any written warnings? If so, how many and for what? Normally, a summary citation would not result in a jail sentence if violated.
With that said, I highly recommend not providing answers to the above questions online, but instead consult a criminal defense attorney.
Are police allowed to question a juvenile without a parent being present and not read them their rights before arresting them?
Police arrested a youth, did not read him his rights, and took him in for questioning without contacting parents. They gave the youth charges based on a complaint accusing him of retail theft, but the youth did not steal anything, though they assumed he was going to. The parents were called six hours later to notify them. They released the child until pretrial with a paper with charges.
ANSWER: This is not a simple question. There are a lot of factors that go into deciding whether a juvenile’s parent/ guardian needs to be contacted prior to questioning. Of course, if they have probable cause to arrest without the statement of the juvenile, then the issue is moot. As for arresting without reading the juvenile his/her rights, that too is not a simple question and more facts would be needed to provide an accurate answer. I recommend contacting a criminal attorney if you have not already.
I was booked for possession of marijuana in another state. I was just charged in my home state for a similar offense.
So I was pulled over last year and charged with possession of marijuana in another state. I was told there is a warrant out for my arrest there because I owe a fine, but I have been paying that off over time. I recently got arrested for possession in PA. Will I be considered a repeat offender? And if I can get the money together and pay off the ticket in the other state right away, will it help/ matter for my case in PA?
ANSWER: It depends what the grading of the out-of-state possession charge is. If it was dealt with as a summary citation then, no, it will not be considered a second offense. You should consult with a PA criminal defense attorney. Also, undergoing a drug evaluation would be a good idea.
How many times can a pre-trial conference be continued by the defense?
In Philadelphia courts, how many times can a defense request a continuance for a pre-trial conference? Are they allowed to keep doing this? The first continuance did not list their reason, the second was for status of counsel (defense lawyer did not show), and the third was granted for defense further investigation. Time was ruled excludable as well. This is a criminal case.
ANSWER: It is well within the discretion of the judge whether to grant a continuance. Of course, if it is the defense requesting the continuance, then the prosecution and the court will require them to waive their Rule 600 speedy trial rights. This means any time from the date of the continuance request until the next listing does not count against the prosecution who must bring the case to trial within 365 days of the filing of the criminal complaint or risk the court dismissing the case.
About a PCRA hearing
At a PCRA (Post-Conviction Relief Act) hearing can the judge take the case at hand and run it concurrent with the sentence it was previously run consecutive with?
ANSWER: A PCRA hearing allows the trial judge an opportunity to review the trial/ plea for specific violations of criminal procedures. If the trial judge determines there is a violation then he/she will order a new trial. What you are asking for is done through a motion to reconsider sentence and must be filed within 10 days of the sentencing in writing to the trial judge.
Is there a way to get a non-jury trial date moved to a sooner date?
My boyfriend has a non-jury trial and it is scheduled for quite a ways away. He is incarcerated, and we are wondering is there any possible way to get the trial date moved up to a sooner date? Can a motion be filed or something?
ANSWER: Your attorney can always file a request with the court asking for an earlier trial date. Unfortunately, most trial court dockets are packed and so that “late” date may have been the earliest the court could hear it. Also, if your boyfriend does not have any detainers, his attorney could file a bail petition requesting his bail be lowered so that he can post bail and be released prior to trial. Of course, the success of the petition depends heavily on the facts and circumstances surrounding the case. I do not recommend posting any specifics about the case on the internet and instead recommend your boyfriend speak privately with his attorney.
Will / could I be drug tested the day of court for an underage drinking charge? If not the day of, how long ? What about Alcohol ED Programs?
Blew a .09, cooperated with police and no one was found in possession of drugs. I am 18 years old and have no lawyer. (Would a lawyer help regarding to the drug test? I saw one for a free consultation, and he told me I will most likely get the non-guilty program without him so I decided to save the 500$) I know I broke the law and deserve the penalties. I just thought (until my last post here) a drug test would be a violation of my rights. What would I be charged with if I fail? Also, sorry for the many questions, are “letters of character” actually worth it?
ANSWER: I am familiar with Delaware County’s Youth Diversionary Program, and it does not require any chemical testing before or during the program. I would however recommend appearing with an attorney to ensure your rights are upheld. Also, if you are referred to the program I mentioned above, it is good to have an attorney help you with the requirements and ensure that you complete them in a timely manner.
Advice about PFA (Protection from Abuse) hearing
My kids were included in the PFA, however in the document it does not say anything about me doing anything wrong to them. She got the PFA against me because I called/texted too much and put stuff on facebook about her. I really do not want the PFA extended, and if it is, how do I make sure I get to see my kids. What types of documents should I bring? I was told it was better just to keep my mouth shut as the judges (Media PA) seem to favor the female. I’m not asking for full custody, but I would like to see them on a regular basis.
ANSWER: Unfortunately, many people use PFAs as a custody weapon, and although it does not supersede a custody order, it can list minor children as protected parties and keep you from having any contact with them. I highly recommend retaining an attorney to protect your interests at the PFA hearing. If your children were not involved in the underlying incident that is in the PFA Petition, then they should not be included as protected parties.
1. WHAT IS PENNSYLVANIA’S MEGAN’S LAW?
In 1995, Pennsylvania adopted Megan’s law, which required offenders convicted of certain sex crimes to register information (such as their name and home address) with the Pennsylvania State Police and to have their photograph and other identifying information posted on the public Megan’s law website.
2. WHAT IS THE ADAM WALSH ACT AND WHAT IS SORNA?
The federal Adam Walsh Child Protection and Safety Act was signed into law by President Bush on July 27, 2006. Title I of the federal Adam Walsh Act is the Sex Offender Registration and Notification Act or “SORNA.” One of the goals of the federal Adam Walsh Act, and of SORNA in particular, was to address the inconsistency across the various state Megan’s law registries and to create a uniform standard for sex offender registry requirements.
To achieve this goal, the federal Adam Walsh Act required the states to implement legislation that was in substantial compliance with the sex offender registry requirements set forth in SORNA. On December 20, 2011, Pennsylvania enacted the Adam Walsh Act to comply with this federal mandate. In 2017, the Pennsylvania Supreme Court found that certain provisions of Pennsylvania’s Adam Walsh Act were unconstitutional. Accordingly, Governor Wolf recently signed a new sex offender registration statute into law, which is known as Act 10 of 2018.
3. WHAT IS A SEXUALLY VIOLENT PREDATOR?
A sexually violent predator is a sex offender convicted of a sexually violent offense in Pennsylvania who has “a mental abnormality or personality disorder the makes the person likely to engage in predatory sexually violent offenses.” Every time an individual is convicted of a sexually violent offense in Pennsylvania, the court must order a sexually violent predator assessment of that individual by the SOAB.
Within 90 days of the date of conviction, the SOAB must submit a written assessment recommending whether or not the individual should be classified as a sexually violent predator, based on numerous factors set forth in the law. The final determination as to whether someone should be classified as a sexually violent predator is made by the court after a sexually violent predator hearing.
If an individual is classified by the court as a sexually violent predator, the individual is automatically subject to:
- Lifetime registration with the Pennsylvania State Police with quarterly of his registration information
- Lifetime, at least monthly, mandatory sex offender counseling with a treatment provider approved by the SOAB
- Active community notification, whereby local law enforcement authorities notify neighbors, county children and youth agencies, local day care centers, school districts and institutions of higher education of the sexually violent predator’s name, residential address and offense; and also provide a photograph of the offender.
4. WHAT IS A SEXUALLY VIOLENT DELINQUENT CHILD?
Under Pennsylvania’s Act 21 of 2003, the SOAB is required to assess certain juvenile sex offenders who are aging out the juvenile justice system. These Act 21 assessments assist the courts in determining whether a juvenile sex offender should be committed to the Commonwealth’s inpatient juvenile civil commitment program for continued sex offender treatment rather then being released into the community upon turning 21 years of age.
To meet the criteria for commitment, the juvenile must have a “mental abnormality or personality disorder” that causes the offender to have “serious difficulty in controlling sexually violent behavior” that makes him “likely to engage in an act of sexual violence.” 42 Pa. C.S. §6402, §6403(a)(3).
If the court decides to commit the juvenile to the involuntary civil commitment program, the juvenile is referred to as a sexually violent delinquent child.