Please let me know what you think about the “Ask The Criminal Defense Lawyer” questions we write each week. It runs in the Pittsburgh Tribune-Review on Sundays. Look for the green colored section. Below are questions that ran in the Pittsburgh Tribune-Review. For those of you that don't get the Trib you can view the questions and answers here on our website.
Also check out our Ask the Lawyer - Injury Law section!
Keep checking our newsletter section for current updates.
For those of you who have currently active lawsuits, good luck!
If anyone has any questions about their specific situation, please call me for a free consultation.
05.13.12
Q: Attorney Tully, people say they will take their criminal case all the way to the Supreme Court. Does the U.S. Supreme Court review every criminal conviction?
A: No. The U.S. Supreme Court will usually only get involved in reviewing a case if there is some very real violation of the U.S. Constitution. Anyone who watches TV or goes to the movies knows about Miranda rights. That was a case heard by the Supreme Court based on a violation of a citizen's right to remain silent under the U.S. Constitution. Now the ruling is the law of the land.
05.06.12
Q: Attorney Tully, in a criminal case, can a jury choose to disregard the facts and the law and find a Defendant not guilty?
A: Yes, but it is a violation of their oath as jurors. It's called jury nullification. It is defined as the power and occasional practice of a jury in a criminal case ignoring the Judge's instructions on the law and acquitting a Defendant despite overwhelming evidence of guilt and the absence of reasonable doubt. As an example, many people feel the O. J. Simpson not guilty verdict was the result of jury nullification.
04.29.12
Q: Attorney Tully, my son is charged with tax related crimes. It is his first offense. Will he be eligible for the ARD Program I hear about?
A: Maybe, but I would not bet the ranch on it. Why? Because the Attorney General's office has a blanket policy that refuses ARD for any person charged with tax related crimes. The prosecutor's (A.G.) office is given very wide discretion concerning who is eligible for ARD. The question is whether that policy amounts to an abuse of discretion. The issue will likely be decided by the Pennsylvania Superior Court. Call me.
04.22.12
Q: Attorney Tully, can I use advanced DNA testing to prove my innocence? I was convicted of murder. I gave a confession to the crime at trial. Can I still attempt to have my conviction overturned by advanced DNA testing?
A: Believe it or not, the answer is yes you can. In Pennsylvania the fact that you made a full confession to the crime does not in itself prevent you from using advanced DNA evidence to establish your innocense after a trial. Why? Because there are many cases where people make confessions to crimes they did not commit.
04.15.12
Q: Attorney Tully, how do the Courts balance individual rights against legitimate governmental goals in criminal cases?
A: Delicately. The Courts recently declared unconstitutional a law that allowed a police officer, who saw a person loitering in a high crime area, to ask the person why he was there. If the explanation wasn't reasonable, the person could be arrested. But what is a reasonable explanation? The law put too much power in the hands of the police and violated the right of the individual to stand in any area, even a high crime area. See the balancing involved?
04.01.12
Q: Attorney Tully, what's this new Allegheny County program I hear about called DUI Hotel Sentencing Court?
A: Hotel Sentencing Court is an alternative to going to jail. It's for people who have a prior conviction and then get arrested for DUI. Instead of making you go to jail for the DUI, you may be allowed to serve your sentence at an old hotel. You begin your sentence on a Thursday and get out on Sunday night. It costs about $500.00. The recidivism rate (repeat offenders) is only about 2% which is incredible. Call me for details about this program.
03.25.12
Q: Attorney Tully, when a huge decision on a criminal matter occurs, how do police agencies find out about the decision?
A: Usually they have a solicitor who will advise them of changes in the law. NO ONE, including Police Departments, wants to be sued for violating the law. Want proof? Recently the Supreme Court ruled police cannot put a GPS tracking device on a suspect's car without a Search Warrant. Shortly thereafter, according to the New York Times, the FBI turned off 3,000 GPS devices from various suspects' cars. What is that telling you? Call me.
03.18.12
Q: Attorney Tully, my 16 year old son stole a car and got arrested. What happens next?
A: Unless there is some type of plea agreement, the case usually proceeds to a hearing where evidence is presented about the charges. Then it is up to the Juvenile Court Judge to decide two things. First, the Judge must decide if your son committed the delinquent act alleged. Second, the Judge must decide if he is in need of treatment, supervision or rehabilitation. Both answers must be yes for your son to be adjudicated delinquent. Call me.
03.11.12
Q: Attorney Tully, can I be convicted of conspiracy to buy drugs if I was just sitting in the passenger seat of a car when the driver bought drugs from a dealer?
A: Mere presence at the scene when drugs are bought is not enough to convict you. Conspiracy involves an agreement between two people to do some illegal act. Therefore, you should be OK. But if the police can show you did something to aid the driver in buying the drugs, you can be in just as much trouble as the drug buying driver. Call me.
03.04.12
Q: Attorney Tully, in a child sexual abuse assault case, are the out-of-court statements the minor child made to someone about the incident admissible at trial?
A: Yes, under certain conditions. The basic rule is any out-of-court statement made by a person is Hearsay. Hearsay is not admissible at trial unless it falls within an exception to the Hearsay Rule. The Tender Years Hearsay Act allow statements a minor (12 years old or younger) made to another outside of Court to be admissible at trial under certain circumstances. The judge decides questions of admissibility at trial. Call me.
02.26.12
Q: Attorney Tully, can two people get married to prevent one from testifying against the other in a criminal case?
A: I guess love is right out the window on this one, right? Legally, this is called invoking spousal privilege. The Courts generally will not consider the reasons why two people get married in deciding this issue. Some exceptions to the spousal privilege rule include certain cases like homicides or rape or when one spouse attacks the other or one of their children or where testimony applies to proof of marriage or desertion or maintenance. Call me.
02.19.12
Q: Attorney Tully, what happens if a person is charged with robbery, and also killing the person? If the jury finds the Defendant not guilty of the robbery, can he still be found guilty of the killing?
A: Yes. Pennsylvania Courts allow for inconsistent jury verdicts. A jury can decide there is enough evidence to find that the accused killed the person, but not enough evidence to find that he robbed the victim first. That is the jury's call. Jury verdicts can be compromise verdicts and this is one of those situations. Each case is different. Call me.
02.12.12
Q: Attorney Tully, I can't believe police need a Search Warrant to put a GPS tracking device on a drug suspect's car. What has our society come to? Why do Courts try to block police from catching drug dealers?
A: Because that's the price of freedom in America. The Courts must balance legitimate government (police) interests in protecting society with individual rights. Those individual rights even protect drug dealers. It's not an easy balancing act. Would you want to live in a police state where there are no Courts to protect your individual liberties? Call me.
02.05.12
Q: Attorney Tully, can the police put a GPS tracking device on a suspects car based on their suspicion the driver may be dealing drugs?
A: No. Last month the United States Supreme Court ruled unanimously that the police need to get a search warrant before putting a tracking device on someone's car. A search warrant requires more than just police suspicion that the driver may be a drug dealer. The police need probable cause to get a search warrant before installing the device. This requirement protects all of us from government overreaching. Call me.
01.29.12
Q: Attorney Tully, can a person be convicted based upon a victim identifying the wrong person at trial?
A: Yes. We have a very good criminal justice system in America but not a perfect one. Scientific research over the last decade has shown that eyewitness identification is one of the least reliable forms of evidence at trial. The U.S. Supreme Court recently reaffirmed that unless there is some showing of police misconduct, that it is solely up to the jury to decide if the victim's identification of the Defendant is correct or not. Call me.
01.22.12
Q: Attorney Tully, how do the Courts decide if a suspect has to be given their Miranda rights?
A: Miranda rights involve the police advising a suspect that, among other things, he has a right to remain silent and he has a right to an attorney prior to questioning. The police do not have to advise a suspect of these rights in all situations. Miranda rights are triggered by whether the suspect is in custody or not. Custody involves deciding objectively whether the suspect's freedom of movement is restricted in any significant way. Call me.
01.15.12
Q: Attorney Tully, can a mentally retarded Defendant, who kills someone, get the death penalty?
A: No. About ten years ago the United Stated Supreme Court decided a state's authority to execute a mentally retarded person is restricted based on the U.S. Constitution. The question then became how to decide if a Defendant is mentally retarded. Recently the Pennsylvania Supreme Court ruled that the burden is on the Defendant to show, by a preponderance of the evidence, that he is really mentally retarded. All 12 jurors must also unanimously agree that the accused is mentally retarded.
01.08.12
Q: Attorney Tully, how is fingerprint evidence used in a criminal trial? If my prints are found inside a house what should I do?
A: Call an experienced attorney immediately. Fingerprint evidence is devastating at trial. The battle usually involves trying to keep the fingerprint evidence out. Once the jury hears your fingerprints were found at the scene of a crime, you are in big trouble Tonto. The Pennsylvania Rules of Evidence allow a fingerprint expert to testify that prints found at the scene matched the Defendant's. Not all cases should go to trial, especially this one.
01.01.12
Q: Attorney Tully, in a criminal case, what is the level of proof needed to convict someone?
A: The standard of proof is a high one. In order to convict a person, the jury must be unanimously convinced of the Defendant's guilt beyond a reasonable doubt. Jurors are told every person arrested is presumed to be innocent. The Commonwealth must also prove each and every element of the crime charged beyond a reasonable doubt. The Defendant does not even have to testify at his trial. These safeguards protect each one of us from government overreaching and abuse.
12.25.11
Q: Attorney Tully, can the police go into someone's home if they believe there are drugs inside?
A: It's not that easy. The Fourth Amendment protects us against unreasonable searches and seizures. The police must convince a Magistrate there is probable cause to believe drugs are in the house. The police must have more than a mere suspicion about it. They must list specific reasons to believe they will find drugs there. If they cannot do so, the Magistrate will not approve the search warrant. Merry Christmas and Happy New Year to all our Readers!
12.18.11
Q: Attorney Tully, if a jury convicts me of burglary and one of the jurors later writes a letter saying I was innocent, can I get a new trial?
A: It's as likely as us winning the World Series next year. It's very difficult getting a jury verdict overturned. All 12 jurors had to agree you were guilty in the first place. Plus Judges often ask each juror in open Court whether they agree with the verdict. You would need proof of some improper external influence on the jury to get a new trial. Good luck!
12.11.11
Q: Attorney Tully, your articles deal mostly with Pennsylvania cases. What about nationally?
A: You be the judge on these two questions. First, can a driver be convicted for continuous horn honking? Answer: No. The Washington State Supreme Court ruled the First Amendment allows a driver to repeatedly honk her horn during a neighborhood argument. Second, can a Defendant get a new trial if one of his jurors falls asleep on two consecutive days during his trial? Answer: No, according to the Indiana Court of Appeals, because it was unclear how long he was asleep! Call me.
12.04.11
Q: Attorney Tully, how can I be convicted of DUI if no one (including the police) actually saw me driving my car?
A: Nice try but no cigar. The Commonwealth doesn’t need an eyewitness to see you driving. They can rely on circumstantial evidence. Recently a Defendant was convicted of DUI in Mercer County when the police saw beer cans in his car, his car engine was still warm, the Defendant’s speech was slurred and he had an odor of alcohol on his breath. No one saw him driving. Call me to discuss this.
11.27.11
Q: Attorney Tully, how can a Defendant be sentenced to more than the statutory maximum for a crime?
A: If you do the crime, you had better be willing to do the extra time. The Federal Third Circuit Court of Appeals (which includes Pennsylvania) recently ruled that a person who commits a crime, while on bail awaiting trial, can be sentenced to more than the statutory maximum of the underlying charge. In that case, the Defendant was sentenced to 138 months incarceration even though the underlying crime carried a maximum incarceration of 120 months.
11.20.11
Q: Attorney Tully, what is the Exclusionary Rule and why is it important in criminal cases?
A: The Exclusionary Rule excludes at trial, relevant evidence like a confession, if the police use illegal means to get the confession. The goal of the Exclusionary Rule is to deter police misconduct. Suppose the police break into a drug dealer’s house without a warrant and find drugs all over the house. Those drugs will be excluded against the drug dealer at trial because of the police misconduct. Courts want the police to obtain evidence lawfully.
11.13.11
Q: Attorney Tully, what happens if I plead guilty to a crime but then decide I want to withdraw my guilty plea before sentencing? Can I do it?
A: Usually yes, provided you assert your innocence before you are sentenced. In Commonwealth vs. Forbes, the Court said a request to withdraw your plea before sentencing should be liberally granted. The standard is one of fairness and justice. After you are sentenced, it is much harder to withdraw your plea. This prevents a Defendant from withdrawing his plea because he didn’t like his sentence.
11.06.11
Q: Attorney Tully, can an inoperable handgun be considered a firearm for sentencing purposes?
A: Yes, in Commonwealth vs. Zortman, the Pennsylvania Supreme Court ruled that it can. In that case, the police found a loaded handgun near drugs seized at a Defendant’s residence. The handgun in question lacked a firing pin and was inoperable. The decision turned on whether the gun was designed to fire a bullet. Whether the gun is operable or not isn’t controlling. These are the kind of issues a Court deals with on a daily basis. Call me.
10.30.11
Q: Attorney Tully, does a child’s 5th Amendment privilege against self-incrimination apply in Decertification Hearings?
A: Yes. A Decertification Hearing considers whether a minor must stand trial as an adult. Certain crimes allow a juvenile to be tried as an adult. A Decertification Hearing permits a Judge to decide if the minor should be tried in Adult Court or Juvenile Court. The minor has the right to remain silent. He cannot be forced to admit he committed a crime during the Decertification process in order to be tried as a juvenile.
10.23.11
Q: Attorney Tully, can the police use the text messages they got from my cell phone to convict me of drug dealing?
A: Not unless they can properly show that it was you who sent or received the incriminating text messages. The recent Pennsylvania Superior Court decision on this issue recognized that cell phones are not always used just by the person to whom the number is assigned. The police have the burden of proof to show you were the sender or receiver of the text messages. Call me.
10.16.11
Q: Attorney Tully, I know police are supposed to get a warrant to arrest people. If the police officer knows I have some outstanding traffic citation warrants, can he arrest me without a warrant?
A: Yes he can. If the officer has some personal knowledge about an outstanding warrant, he does not have to get a Judge to sign a warrant for your arrest. You can be arrested on site. Even a routine traffic stop can lead to your immediate incarceration. You need to clear up the prior citations asap. Call me.
10.09.11
Q: Attorney Tully, do you handle other types of Law besides Criminal Law? I saw your Internet homepage.
A: Yes. We also represent Wrongful Death, Medical Malpractice, Personal Injury, Trucking and Car accidents, Workers Compensation and Slip & Fall victims. Every Monday toward the back of the Tribune Review Sports Section, we run a Question and Answer article on Wrongful Death, Personal Injury and Medical Malpractice issues.
I am still waiting for a local Pittsburgh sports celebrity to call and say they read my column but so far no luck!
10.02.11
Q: Attorney Tully, I have a prior conviction for attempted burglary. If I am found in possession of a handgun can I be charged with Former Convict Not To Own A Firearm (another crime)?
A: It’s unlikely. Our Pennsylvania Supreme Court recently ruled that attempted burglary is not a qualifying offense that prohibits a felon from possessing a firearm under the Former Convict Statute. Since you can go to jail for breaking the law, the laws must be strictly reviewed in favor of a Defendant’s interests!! Here you get the benefit of the doubt!
09.25.11
Q: Attorney Tully, my question is about eyewitness identification. What about a situation where the police bring an accused up to the victim and ask “Is that him?”. What do they think the person is going to say?
A: Excellent point. But absent some special type of suggestiveness (like the officer nodding his head when he asks “Is that him?”) that type of procedure is generally admissible at trial. It is the job of your attorney to point out to the jury why that type of identification is very suspect. Call me to discuss this!
09.18.11
Q: Attorney Tully, I have criminal jury duty coming up. Will I have to talk to the attorneys after the case and explain our jury verdict?
A: You have no obligation to talk or explain to the attorneys how you arrived at your decision. Attorneys are basically prohibited from even asking if they can talk to you without first getting the Judge’s okay. The idea behind talking to jurors after the case ends is that juror feedback will help the lawyer be a better attorney in future cases. It’s your call. Good Luck!
09.11.11
Q: Attorney Tully, I have a permit to carry a gun and I have gotten into some legal troubles. Can my gun permit be taken away from me? Who takes it away?
A: Under the law, the Sheriff may revoke your license to carry a firearm for “good cause” which includes such factors as your character and reputation. You can lose your permit even if you are not convicted of a crime. It is the Sheriff’s decision and a Judge can only reverse the decision if the Court finds that the Sheriff abused his discretion.
09.04.11
Q: Attorney Tully, do the police have to get a search warrant to enter a locked common area of an apartment complex?
A: Not if your case is in Federal Court. The Third Circuit Court of Appeals (which includes Pennsylvania) recently decided that in Federal cases the police do not violate the Fourth Amendment search warrant requirement by going into the locked common area of an apartment building. In that case, an officer went thru an open window of the building’s stairway. He then unlocked the front door of the building to catch the Defendant. Call me.
08.28.11
Q: Attorney Tully, I am charged with a burglary for going into a neighbor’s house. I am so embarrassed. I needed money for my drug habit. Now what do I do?
A: All is not lost! The law rightfully takes going into another person’s home very seriously. Sentencing guidelines call for jail time for burglary pleas or convictions. Judges are not bound by the guidelines. I try not to make value judgments on what a client does. Call me for an appointment. I have an idea on how we can help you!
08.21.11
Q: Attorney Tully, I am charged with robbery. My alibi witness has a conviction for theft a long time ago. Can the prosecutor bring up her conviction?
A: Yes. The Pennsylvania Superior Court recently ruled that, in some cases, bringing up a prior conviction that occurred even 28 years before was okay. The usual lookback period is 10 years for asking about a prior “crimen falsi” conviction. The exception is if the Court decides that the “interests of justice” should allow the jury to hear about the very old prior conviction. Call me.
08.14.11
Q: Attorney Tully, I got a DUI. They are offering me house arrest if I plead guilty. Should I just take the offer?
A: Possibly. You should understand that to get house arrest, you must plead guilty to the DUI. House arrest means you will have a permanent criminal record. It also means you may lose your driver’s license, for up to a year. Can you really function in our society without the ability to drive? Please meet with a criminal lawyer before you accept house arrest. Our initial meeting is free!
08.07.11
Q: Attorney Tully, I got arrested for a domestic dispute. I fought with the police when they were handcuffing me. They charged me with resisting arrest. Am I in trouble on the resisting arrest charge?
A: For sure. For a resisting arrest charge, Courts look to whether you created a substantial risk of bodily injury to the officer. A recent Pennsylvania case held that struggling with the officer and striking the officer with his shoulder was enough to convict a person of resisting arrest. You need serious damage control at your Preliminary Hearing. Call me.
07.31.11
Q: Attorney Tully, can I get charged criminally for piercing my cat’s ears? I think it would look neat. The Animal Cruelty law doesn’t say I can’t do it, right?
A: My God, what are you thinking? Pennsylvania’s Animal Cruelty statute makes it illegal to “maim, mutilate or disfigure an animal.” The Pennsylvania Superior Court recently decided that Animal Cruelty can include cat piercing. The law is based upon common sense. You should show some too. What if your Judge happens to love cats? Jails are not fun places to be!
07.24.11
Q: Attorney Tully, how many criminal cases get dismissed at the Preliminary Hearing? I got Aggravated Assault, Theft and Gun charges. I am looking at jail time.
A: Some cases are dismissed in their entirety at the Preliminary Hearing. Many other cases go to the next level (trial) but with some of the criminal charges dismissed or reduced. This reduction or dismissal can occur by agreement with the prosecutor or by the Judge ruling in your favor, after hearing the evidence presented by the Commonwealth. Call me to discuss your charges!
07.17.11
Q: Attorney Tully, I got arrested for stealing a dress from a department store. I have a hearing before the Magistrate next month. Am I going to have a criminal record for this?
A: Probably not if it’s your first offense. There is a diversionary program for first time retail thefts that can result in a dismissal of your charges. The program involves attending a half- day session of classes about the effects of stealing on you and society. Completing the program can help you avoid a criminal record! Good luck!
07.10.11
Q: Attorney Tully, I got papers in the mail from the Magistrate’s office charging me with a first time DUI and a bunch of traffic citations. What should I do?
A: First look through the papers to find out when your Preliminary Hearing and fingerprinting are scheduled for. If you miss either date, a warrant could be issued for your arrest. Next, make an appointment ASAP to talk with a criminal lawyer about your charges. I do not charge any fee for an initial consultation. Good Luck!
07.03.11
Q: Attorney Tully, can the police just come into my son’s house to search it for drugs?
A: Not in America. Usually the police need a search warrant signed by a Magistrate to enter someone’s home. In the search warrant the police must explain the reasons why they want to search your house. There are exceptions to the search warrant requirement called “exigent circumstances.” These involve emergency situations when the police do not have time to get a search warrant. Each case is different. Call me to discuss this.
06.26.11
Q: Attorney Tully, I have a 1st DUI case and want to get into the program (ARD) that leads to a dismissal of the case against me. Who decides if I get into the program?
A: The District Attorney has almost absolute discretion concerning who is admitted into the program. Not even a judge can overrule the District Attorney’s decision on admission into the program except in rare cases. Acceptance into the ARD Program can mean the difference between whether you go to jail or have no criminal record. Call me.
06.19.11
Q: Attorney Tully, I know the police must give Miranda Rights before they question a suspect. But do they then have to ask whether he is willing to waive his rights before they question him?
A: No. In the Bomar case, the Pennsylvania Supreme Court ruled the police only must show the proper Miranda warnings were given and that the accused “manifested an understanding of those warnings.” The suspect does not have to say “I agree to talk” for the police to then question him after his Miranda rights are given. Call me.
06.12.11
Q: Attorney Tully, can parents be criminally prosecuted for hitting their children?
A: Yes. Here’s some free legal advice: Never hit your child to punish them!! Why? Because it reinforces to your child that the way to deal with frustration and anger over what someone is doing, is to hit the person. A father was recently convicted of simple assault when the jury found his chief reason for hitting his daughter was to vent his anger and feelings of frustration with her, rather than to discipline her. Call me.
06.05.11
Q: Attorney Tully, I want to call character witnesses at my DUI trial. Can the prosecutor ask them about my prior DUI arrest and ARD disposition?
A: Yell “Bingo”! In Commonwealth vs. Hoover, the Pennsylvania Superior Court recently overturned a DUI conviction on this very issue. Character witnesses can only be questioned about arrests that lead to a conviction. ARD is not a conviction. Therefore, your witnesses cannot be questioned about your prior ARD, since you were not convicted of that offense. Good luck at your trial!
05.29.11
Q: Attorney Tully, my son committed a series of thefts and is looking at jail time. How many inmates are at the Allegheny County jail?
A: Currently there are about 2,600 inmates at the Allegheny County Jail. The jail’s maximum is 2,800. If your son’s crime spree was due to a drug addiction, he may be eligible for an alternative to jail like Drug Court. There is less than a 10% repeat offender (recidivism) rate in Drug Court. Call me for the details about this innovative program. Drug Court works!
05.22.11
Q: Attorney Tully, how is Theft by Receiving Stolen Property different from Theft by Unlawful Taking?
A: Theft by Unlawful Taking means you took someone else’s property without their permission. You stole the item. Theft by Receiving Stolen Property occurs, not when you steal something yourself, but when you are in possession of the stolen item, knowing it is stolen. If someone else steals something and you agree to hold the stolen item at your house, knowing it is stolen, you are guilty of theft by receiving stolen property.
05.21.11
Q: Attorney Tully, my brother took a plea bargain. The prosecutor agreed to waive the enhanced school zone mandatory sentence and recommended probation. If he violates the deal and is re-sentenced, can the Judge give him more time because of the mandatory school zone law?
A: No. In Commonwealth vs. Mazzetti, the Pennsylvania Superior Court recently ruled the mandatory minimum sentence enhancement, per the school zone statute, would not apply since the prosecutor previously agreed to waive the school zone mandatory sentencing in the original plea offer. Call me.
05.15.11
Q: Attorney Tully, I hid drugs in the trunk of my car. The police later arrested me inside my house. They searched my car without a warrant and found the drugs. What do I do?
A: You may have something. The police can validly search the area in the immediate vicinity of where you were arrested (your house). In my opinion, your car was not in the immediate area of your arrest. There is a Pennsylvania Supreme Court case that supports your position. Call me about filing a Suppression Motion.
05.08.11
Q: Attorney Tully, I was arrested by the police for having a gun in the back seat of my car. They took the gun from my car without a search warrant. What should I do?
A: File a Suppression Motion challenging the seizure of your gun. The police usually need a search warrant to take things from you. One exception to the warrant requirement is if the item seized (gun) was in “plain view” and the police had a reasonable basis for pulling you over in the first place. Call me.
05.01.11
Q: Attorney Tully, I was pretty obnoxious when the police stopped me for drunk driving. They never told me about the penalties for refusing the Breathalyzer test. Aren’t they supposed to?
A: The “Frustration of Purpose” doctrine may apply here. If you were spitting, kicking and screaming at the officer, then you frustrated his ability to explain your rights to you due to your actions. The law is based on common sense. Yes, you can lose your license even though the officer did not advise you of the penalties for refusing. Call me.
04.24.11
Q: Attorney Tully, I had a prior retail theft for stealing an item valued at $140.00. I got ARD for it. I thought the charges were dismissed when I completed the ARD program. Now I got a second retail theft. Can they count my first offense against me and grade the theft higher?
A: No. Since your first theft was dismissed by completing the ARD program, it is not considered a conviction. That means your prior theft can’t be used against you to increase your sentence for this theft! Call me.
04.17.11
Q: Attorney Tully, I have a Breathalyzer refusal case. What does Penn DOT have to prove to suspend my license for refusing the test?
A: The Pennsylvania Commonwealth Court recently affirmed that, to suspend your license, Penn DOT must prove: 1)the police officer who arrested you had a reasonable suspicion that you were under the influence of alcohol, 2)that you were asked to submit to a chemical test, 3)that you refused to do so, and 4)that you were warned that a refusal may result in a suspension. Call me.
04.10.11
Q: Attorney Tully, can the police legally pull my car over for having air fresheners on my rearview mirror?
A:No - not unless the police can show the air fresheners “materially obstruct” your view while driving. The Pennsylvania Supreme Court in Commonwealth vs. Holmes, recently ruled that to justify a stop, police must be able to point to some facts to support the inference that the air fresheners materially impaired the driver’s view. If not, they cannot legally stop your car. Decisions like this keep us free as a society!
04.03.11
Q:Attorney Tully, what is your most bizarre legal representation of a client?
A:That’s easy. A client hired me to represent him in a theft case. After I got involved in the case, I found out he was a member of the Klu Klux Klan! We got the charges dismissed. He called back a week later and said he wanted me to be General Counsel for the Klu Klux Klan and pay me a big retainer fee. I politely declined. Believe it or not, he still sends me Christmas cards!
03.27.11
Q:Attorney Tully, I am charged with DUI. The police drew blood from me and want to use the blood alcohol results against me. What should I do?
A:Require the Commonwealth to bring the lab technician who drew your blood in to Court. In 2010 the Pennsylvania Superior Court held that, absent showing the lab technician is unavailable or that you had a prior chance to cross-examine him, your Sixth Amendment right to confrontation requires the lab technician to testify in Court.
If not, the blood alcohol results are inadmissible.
03.20.11
Q:Attorney Tully, I am on probation for theft. Can my Probation Officer enter my home at any time without a warrant to see me. Don’t I have rights too?
A:Not in this situation. The general rule is police need a warrant to go into someone’s home. But the U.S. Supreme Court has ruled that a warrantless search of the house of someone on probation is permitted. Persons on probation do not enjoy the same absolute liberty and rights that other citizens enjoy, including the right to be secure in their home. Call me.
03.13.11
Q:Attorney Tully, I am charged with robbery based on an eyewitness picking me out of a lineup. Can an expert testify for me at trial about the unreliability of eyewitness identification?
A:In 2010, the Pennsylvania Superior Court ruled that expert testimony regarding human memory, perception, recall and eyewitness errors in identifying suspects is inadmissible at trial because it interferes with the jury’s role. In other words, a jury has to decide if the eyewitness is right, not an expert. Careful jury selection is very important in your case.
03.06.11
Q: Attorney Tully, I pled guilty at my Preliminary Hearing to Simple Assault. I thought it was just a Summary Offense, but later found out it is a misdemeanor. How can I withdraw my plea?
A: Timing is everything. In 2010 our Pennsylvania Superior Court affirmed you have 10 days to withdraw your plea from the Magistrate’s office. You get 30 days after that to appeal to the Court of Common Pleas to withdraw your plea. Finally, you have 30 days after that to appeal to the Pennsylvania Superior Court. Good Luck!
02.27.11
Q: Attorney Tully, my son got arrested for underage drinking. The police gave him a pre-arrest alcohol screening test and want to use that blood alcohol reading to convict him. Can they?
A: A 2010 Pennsylvania Supreme Court decision helps your son’s case. In Commonwealth vs. Brigidi, the Court held there are restrictions on the use of the pre-arrest screening device in Court. Even if the device was approved by the Health Department, that is not enough. The device must also be properly calibrated to be admissible in Court. Call me.
02.20.11
Q: Attorney Tully, I have a Preliminary Hearing, for stealing a car, next month. Anything new about Preliminary Hearings?
A: Yes, a new criminal procedural rule will soon allow hearsay evidence in some property crimes. Until now, the owner of the stolen car was required to testify at the Preliminary Hearing that he did not give you permission to take his car. If the owner didn’t show up at the Preliminary Hearing, the charges could be dismissed for lack of evidence. Not anymore. Guess what you need ASAP?
02.13.11
Q: Attorney Tully, I was stopped by the police for drunk driving. At the police station, they read me the form saying I had to take the breathalyzer test. I said nothing and they marked me as a refusal. Now I am losing my license. Do I have a leg to stand on?
A: Not legally. The recent Pennsylvania Commonwealth case of Situski vs. DOT held there is no requirement that the police read you your chemical test warnings at the scene of the arrest. Also, remaining silent constitutes a refusal to take the breathalyzer test.
02.06.11
Q: Attorney Tully, my son is charged with Burglary. Does it matter if the house he burglarized was under construction at the time he went in?
A: Yes. In December, 2010 our PA Supreme Court ruled that a burglar who went into a house while it was under construction, and not adapted for overnight accommodations, is guilty of a lower grade (2nd degree) felony, than if the house had people living there or was adapted for overnight accommodations (running water, electricity, working furnace, etc.) Then it is a 1st degree (higher grade) felony.
01.30.11
Q: Attorney Tully, I am charged with a first time DUI and I am guilty. About 4 years ago, I pled guilty to theft. Am I going to jail for my DUI?
A: Maybe not. There is a brand new program in Allegheny County called (believe it or not) “Hotel Court”. If you qualify, instead of going to jail, you will serve your time at an old hotel near the old County Airport. It’s not the Four Seasons Hotel, but anything beats jail. Call me for more details about this innovative program.
01.23.11
Q: Attorney Tully, my nephew was charged with Homicide By Vehicle. What is it?
A: "Any person who recklessly or with gross negligence causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic, is guilty of homicide by vehicle, a felony of the third degree, when the violation is the cause of death." Have your nephew contact an attorney immediately. He needs help now!!
01.16.11
Q: Attorney Tully, in a Drivers License Refusal Case, what do I have to show to save my drivers license? I have a medical condition which includes a long history of panic attacks.
A: In order to win a license refusal case based upon your medical condition, a medical expert (doctor) must testify, within a reasonable degree of medical certainty, that the medical condition (panic attacks) or some other injury made you incapable of making a conscious and knowing refusal to take the breathalyzer test. Good Luck!
01.09.11
Q: Attorney Tully, my drivers license is suspended in Ohio. Can I just apply for a Pennsylvania license to drive here?
A: Not legally! A Pennsylvania Commonwealth Court case recently held that Penn DOT cannot grant a drivers license to anyone whose operating license is suspended in Pennsylvania or any other state. In that case, the person had five prior DUI convictions and suspensions!! License suspension cases are very technical and are guided by prior Court decisions. You definitely need a lawyer on this one!!
01.02.11
Q: Attorney Tully, what is a criminal attorney’s obligation to his immigrant client about the effect of his guilty plea on his immigration status?
A: Earlier this year the United States Supreme Court in Padilla vs. Kentucky, ruled that criminal attorneys must advise their non-citizen clients of the consequences of their plea on their immigration status in the United States.
The reason for this is that green card non-citizens can be automatically deported if they plead guilty to certain offenses.
12.26.10
Q: Attorney Tully, I am charged with careless driving because I rear ended another car. I am worried about the points. What should I do?
A: Plead not guilty and request a hearing. A recent Pennsylvania Superior Court case held that the mere occurrence of an accident does not prove negligence or careless driving. The Court ruled there can be other reasons besides careless driving to explain why an auto accident occurred. Points may affect your insurance rates. Call me for a free consultation.
12.19.10
Q: Attorney Tully, how is the jury going to be fair when they hear about my drug charges?
A: Juries still amaze me. A juror might be an absolute victim’s rights advocate, but they really do follow their oath. Their oath requires a juror to presume you are innocent and find you not guilty unless the Commonwealth proves you guilty beyond a reasonable doubt.
12.12.10
Q: Attorney Tully, do your criminal clients tell you if they are guilty? I was charged with drug possession.
A: Usually not. The job of the attorney is not to make a moral judgment on what a person did. The attorney’s job is to do everything legally in his power to get the best result for his client. Isn’t that why you hire an attorney in the first place??
12.05.10
Q: Attorney Tully, I got arrested for assault. What is a Motion to Suppress Evidence?
A: It is an attempt to prohibit the introduction of evidence against you because police did not follow proper procedures. For example, if the police questioned you without advising you of your right to remain silent, your confession would not be admissible against you. The Court would suppress the evidence (Confession). Call me.
11.28.10
Q: Attorney Tully, I am charged with DUI and leaving the scene of an accident. What is your courtroom approach to cases?
A: It is definitely not an in-your-face Pit Bull attack against the police and the system. That tactic rarely works. You can be aggressive without being obnoxious. I also try to do everything I can to keep you out of jail. Call me.
11.21.10
Q: Attorney Tully, can I pay my criminal attorney based on whether or not he wins my DUI case?
A: No, it’s prohibited by Law. An attorney can represent you on a contingency basis for an auto accident injury but not for a criminal case. Sorry, but you are going to have to bite the bullet and pay your private attorney if you want help for your DUI case.
11.14.10
Q: Attorney Tully, my son wants to be a lawyer and make a lot of money. Should he?
A: Yes, but only if he really wants to help others. This sounds preachy, but if your son just wants to make a lot of money, he should pitch for the New York Yankees. Without passion for his clients, eventually he will hate his career and hate being a lawyer. Everyone knows money does not buy happiness!!
11.07.10
Q: Attorney Tully, the police want to talk to me about a theft I committed at work. What should I do?
A: Stop reading this article and call an attorney immediately. In America you still have an absolute right to remain silent. Unless you have ice in your veins, the police will get a confession out of you. A lot of people sitting in Allegheny County jail were sure they could talk their way out of any situation. You need help now!!
10.31.10
Q: Attorney Tully, do the police hate you because you represent the people they arrest?
A: I sure hope not. Police recognize everyone is entitled to legal help. I have represented many policemen who have been hurt in auto accidents. Last month a policeman had me represent his son in a DUI case. You got to admire what they do. These are honorable people who keep you and me safe at night!!
10.24.10
Q: Attorney Tully, how can you represent someone you know is guilty?
A: My dad was a Pittsburgh Police Detective. When I was in Law School I told him I only would represent innocent people. My dad said then you are not going to have many clients!! An attorney’s job is to make sure all of his clients’ rights are fully protected by the law. Wouldn’t you want someone fighting for you if you were arrested?
10.12.10
Q: Attorney Tully, how did you get involved in representing people charged with crimes?
A: The best job I ever had was as an Assistant District Attorney in Allegheny County just after Law School. When I went into private practice, representing people accused of crimes, it seemed like a natural thing to do. It is very rewarding to help people in trouble. I must say it’s also pretty exciting work!
10.10.10
Q: Attorney Tully, what can I expect at my Preliminary Hearing? I have an assault case.
A: You can expect me to talk on your behalf to the Assistant District Attorney and the police about your case. I will try to tell them everything positive about you and our side of what happened. We have a right to question the witnesses who are claiming you committed the crime. Then the Judge decides whether to bound the case over for trial or dismiss your charges. Call me.
10.03.10
Q: Attorney Tully, my teenage son will not go to school, is doing drugs and was arrested for stealing. Can I force him to attend a drug and alcohol treatment program?
A: Yes, the Pennsylvania State Supreme Court recently ruled a parent has the right to involuntarily commit their child to an inpatient drug/alcohol treatment program when seeking medical help for their child. This is a huge decision. It is based on the presumption that a parent is acting in the best interest of their child. Call me if you wish to discuss any juvenile law matters.
9.26.10
Q: Attorney Tully, I just got arrested again for DUI and drugs. I am terrified of going to jail. Now what?
A: Don’t pack your suitcase just yet. The good news is that there may be certain programs available to you like the Phoenix Program, Drug Court, or DUI Court that allow you to avoid jail time (in certain situations). Another alternative to jail time is if your case is eligible for house arrest. Call me.
9.12.10
Q: I was arrested for theft and my family wants to get the charges dropped. Why is getting into the ARD Program such a big deal?
A: Because acceptance into the Accelerated Rehabilitative Disposition (ARD) Program can result in a complete dismissal of the charges against you. It’s roughly the same thing as getting a Not Guilty verdict in a trial. ARD is usually available to first time offenders of non-violent crimes. There are other qualifications you may have to meet. Call me for a free consultation.
9.05.10
Q: My wife and I got into an argument and I hit her. The police came and arrested me for assault. Am I going to do jail time?
A: If it is the only time this has happened and you have no criminal record, maybe not. The Courts, rightfully, take these matters very seriously. You might be required to complete an anger management course in exchange for a reduction of the charges. You may also have a Protection From Abuse Petition filed against you.
8.29.10
Q: I have a Preliminary Hearing for a gun charge next week. Should I get an attorney for it? Is the hearing even important?
A: Yes. A Preliminary Hearing is important because it gives you a chance to see a “mini” version of what your trial will be like. It’s a chance to talk with the Assistant District Attorney and the police in an informal setting. It’s also an opportunity to help you develop any defenses in your case.
8.22.10
Q: I was arrested for theft and my family wants to get the charges dropped. Why is getting into the ARD Program such a big deal?
A: Because acceptance into the Accelerated Rehabilitative Disposition (ARD) Program can result in a complete dismissal of the charges against you. It’s roughly the same thing as getting a Not Guilty verdict in a trial. ARD is usually available to first time offenders of non-violent crimes. There are other qualifications you may have to meet. Call me for a free consultation.
8.22.10
Q: My son was arrested for underage drinking and possession of marijuana. What should I do to help him?
A: Two things: First, immediately contact an experienced criminal defense attorney to discuss the case. I do not charge any fee for a phone consultation. Second, try to get your son enrolled in a drug or alcohol awareness classes before his hearing. Courts and the police usually look very favorably on someone who is trying to get help with alcohol or drugs.
8.14.10
Q: Attorney Tully, I was arrested for simple assault. I was drunk and I am guilty. Should I even get a lawyer to represent me?
A: The worst thing you can do is show up to Court without an attorney. The burden of proof is on the police/state to find you guilty beyond a reasonable doubt. If the police did not act in a proper legal way, the charges against you may be dismissed, even if you are “guilty” of the crime. An experienced attorney can best advise you.
8.08.10
Q: Attorney Tully, I am charged with drunk driving and my trial is in 2 weeks. My lawyer says I have to plead guilty or I am going to jail for a long time. Do I have to plead guilty?
A: No. In any criminal case, you have the absolute right to decide whether to plead guilty or go to trial. No lawyer, judge or even the President can take that right away from you. Our Constitution guarantees you that right. You should listen very carefully to what your attorney tells you. Your counsel has trial experience that you do not have. However, the ultimate decision of whether you should plead guilty or go to trial is entirely your call. Your attorney’s job is to advise you of your options, to discuss the pros and cons of each option and to tell you what the lawyer thinks is your best option. That’s what you pay the attorney for. After that, the decision is yours alone to make.
