Posted On: August 27, 2009

Commonwealth Court of Pennsylvania Holds Police Must Have Reasonable Suspicion of Intoxication In Order for Implied Consent Violation to Carry Suspension

The Commonwealth Court of Pennsylvania recently affirmed a Common Pleas decision in favor of a suspected drunk driver, on appeal by the Department of Transportation, Bureau of Driver Licensing. Police were called to the seen of a single-car accident in the early morning hours of August 28, 2007. The driver was found by an arriving officer, sitting on the curb next to his overturned vehicle and claiming he had fallen asleep behind the wheel. The officer began questioning the driver and noticed that the driver was slurring his speech. The officer then asked the driver to submit to a field sobriety test. The driver agreed to the field testing, which involved the walk-and-turn, standing on one-leg, and the finger-to-nose test. The driver subsequently failed the test. The driver was arrested, read his Miranda rights, and also advised of Pennsylvania’s implied consent law, requiring the driver to submit to chemical testing or face an automatic one-year license suspension.

At trial, the officer testified that when he arrived on scene, the driver had slurred speech, unsteady gait, and could not maintain his balance. He further testified that the driver refused medical treatment. The officer claimed that based on the aforementioned facts, he had reasonable suspicion to suspect intoxication. On cross-examination, however, the officer admitted he had administered a breathalyzer test to the driver which was negative for intoxication. The officer further admitted he searched the vehicle for evidence of drugs or other contraband, finding none.

The driver was picked-up from the Police station by a family member and was taken immediately to the hospital. Upon examination, it was discovered that the driver had likely suffered a head injury from the accident. The Court found that the suspicions of the officer could have been attributed to a head injury, rather than intoxication. Further, the officer had administered a breathalyzer and a search of the vehicle which both produced negative results as to intoxication; his suspicions were therefore no longer reasonable as to require the driver to submit to chemical testing. Finally, the Court held the driver could not have knowingly and voluntarily refused chemical testing, due to his head injury and condition.

Important to note is a dissent to the decision, pointing out that an officer’s reasonable suspicion is not unreasonable if later proven to be false. Also, the dissenting Judge was perturbed because no doctor testified at trial as to the driver’s head injury and whether it could have affected his knowing and voluntary refusal to testing. Nevertheless, the majority of the Court affirmed the trial decision, holding no violation of Implied Consent and therefore no suspension of driving privileges.

Drunk Driving

Driving under the influence in Pennsylvania is a serious matter, as it is in every state, and carries minimum penalties required by Pennsylvania statute. The mandatory minimum is based on elements of the conviction, with increases in the mandatory minimum based on any previous conviction for DUI or comparable offense within the past ten years. Penalties can range from 6-months probation to up to one year in prison; along with other fines and penalties.

If you have been arrested for Drunk Driving, DUI, DWI, or Underage Drinking, contact a Philadelphia Criminal Defense Attorney immediately. There are defenses which are available to you, which can reduce or eliminate penalties associated with these charges. For a confidential consultation, contact the Law Offices of Marc Neff at (215) 563-9800 or email:

Posted On: August 25, 2009

Superior Court of Pennsylvania Rules the State Carries the Burden of Proof in Expungement Hearings

An expungement proceeding is held when a subject of a prior criminal proceeding seeks to have the earlier records sealed or destroyed. An expungement differs from a pardon, in that a conviction is not merely forgiven but rather treated as though it never occurred. There are often conditions which must be satisfied in order to successfully expunge one’s record. Although an expungement relates to prior criminal occurrences, the proceeding itself is a civil matter. One instance in which a person would seek to have their record expunged would be if they were convicted of a crime and later had the conviction overturned.

The Superior Court of Pennsylvania recently decided a case of first impression, in which a man convicted of rape and other sexual crimes sought expungement of record after his conviction was overturned. The Petitioner had been convicted of rape, involuntary deviate sexual intercourse, robbery, and criminal conspiracy in 1987. He was sentenced to 12-24 years in prison, serving more than ten (10) years before having his convictions vacated in 1996. The convictions were vacated when DNA testing showed DNA of three different men on the victim’s clothing, none of whom were the Petitioner. A new trial was ordered and the Commonwealth chose to nolle prosse the charges, meaning that based on a lack of evidence, the Commonwealth would no longer prosecute. Subsequently, the Petitioner sought the expungement of his prior convictions which were vacated.

The Court held that it was the burden of the Commonwealth to show why an arrest record should not be expunged. The Court stated that the Governmental interest in maintaining arrest records is outweighed by an individual’s interest in expunging their record of convictions later overturned. A person’s criminal record has effects on many aspects of every day life, for example obtaining employment. One who is wrongfully convicted has a compelling interest in expungement of their record, in that they should not continue to pay for a crime which they did not commit. It is therefore the Commonwealth’s burden to show a more compelling reason for maintaining the person’s record.


A criminal record affects many aspects of one’s life. A person who is wrongfully convicted, or otherwise who meets certain criteria, may be eligible for expungement of the prior criminal proceedings. At the Law Offices of Marc Neff, we are committed to providing our clients with the best defense available, before, during, and after criminal proceedings. Mr. Neff has more than twenty years of experience in the area of criminal defense and has successfully assisted many clients in subsequent expungement proceedings. If you have been arrested, charged, or convicted of a criminal offense, and are interested in having your criminal record expunged, contact the Law Offices of Marc Neff via phone at (215) 563-9800 or e-mail for a confidential consultation.

Posted On: August 24, 2009

Third Circuit Court of Appeals Holds Use of an Adult Intermediary for Purposes of Child Pornography Constitutes Attempt under United States Statute

A recent Third Circuit decision set a precedent that using an adult intermediary, to plan sexual encounters with a minor, constitutes attempted enticement of a minor and violates 18 U.S.C. §2422(b). The relevant portion of the statute reads that whoever uses means of interstate commerce to knowingly persuade, induce, entice, or coerce a minor to engage in sexual activity that is illegal, or attempts to do so, shall be fined and imprisoned for no less than ten (10) years under statutory guidelines.

The decision in United States v. Brian Lee Nestor involved a man (“Nestor”) who placed an advertisement on Craigslist seeking “family fun”. A Pennsylvania State Police officer, trained in recognizing code for the sexual abuse of minors and child pornography, identified “family fun” as seeking a parent, guardian, or other adult with influence over a minor, to allow said minor to participate in sexual conduct or child pornography with the person placing the advertisement. The officer began a correspondence with Nestor, choosing to involve the FBI in the investigation as well, upon which a meeting was scheduled at Nestor’s home between himself and who he thought to be a stepfather and stepson. Also contained in the correspondence were instructions on how to elude police detection, and a request by Nestor that the stepfather bring child pornography to the meeting.

Nestor was arrested and charged with violating 18 U.S.C. §2422(b) and violating a possession of child pornography statute. Nestor pled guilty to the child pornography charge, but challenged the other violation based on his dealings with an adult intermediary, rather than knowingly persuading, inducing, enticing, or coercing a minor. Nestor’s motion for acquittal was denied at trial, for which he appealed the Trial Court’s decision to the Third Circuit Court of Appeals.

The Third Circuit held that Nestor had taken substantial steps to put him in direct contact with a minor, so that he could then attempt to persuade, induce, entice, or coerce the minor into illegal sexual activity. Nestor did so by using an internet website, an established means of interstate commerce. The Court cited to U.S. v. Tykarsky where a defendant who challenged his conviction of 18 U.S.C. §2422(b) because he had been dealing on-line with an undercover agent, and not an actual minor, was held to have been in violation of the statute nonetheless. The Court therefore held that “it is of no moment that Nestor never dealt directly with his intended child victim.” The fact that Nestor intended to violate the statute is enough to uphold his conviction, even though no actual minor was ever involved. The Court further stated that even if the statute were construed more strictly or narrowly, the substantial steps taken towards the violation would, at the least, constitute an attempt of the crime. The Court therefore upheld the sentence of the District Court.

Crimes against Minors

Knowingly persuading, inducing, enticing, or coercing a minor to engage in illegal sexual activity is a violation of both State and Federal laws. If you are being investigated or have been arrested and charged with sexual abuse of a minor, attempting to do so, or other crimes against minors such as possession of child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.

Posted On: August 18, 2009

Third Circuit Court of Appeals Upholds Special Conditions of Supervised Release in Child Pornography Case

In a recent appellate decision, the United States Court of Appeals for the Third Circuit upheld the sentence of Paul R. Thielemann, imposing a term of imprisonment followed by a ten-year term of supervised release, subject to special conditions. Thielemann pleaded guilty to one count of receiving child pornography and was subsequently sentenced to the statutory maximum, 240 months imprisonment, followed by ten years of supervised release. The Court conditioned Thielemann’s supervised release on two special restrictions; for the term of supervised release, Thielemann is 1) restricted from owning or operating a personal computer with internet access in home or at any other location, including employment, without written approval of the probation officer, and 2) he is restricted from possessing or viewing any materials, including pictures, photographs, books, writings, drawings, or video games depicting and/or describing sexually explicit conduct.

Thielemann appealed his sentence on the basis of special conditions imposed on his supervised release. Specifically, District Courts may impose special conditions of supervised release, but such conditions must be reasonably related to the factors set forth in the statutory sentencing guidelines, and must involve no greater deprivation of liberty than is reasonably necessary to deter future crime, protect the public, and rehabilitate the defendant. The Third Circuit examined the relevant facts of the case under this standard and determined the special conditions were merited. Those relevant facts involved Thielemann’s usage of child pornography and sexual abuse of minors, to entice heterosexual males into sexual activity with him. This commingling of adult and child sexual conduct was sufficient to merit the special conditions imposed on Thielemann.

The Court began by examining the ban on sexually explicit material, as weighed against Thielemann’s First Amendment Constitutional rights. The Court cited to United States v. Voelker, where Defendant’s similar lifetime ban on possession of sexually explicit material was overturned due to a lack of nexus between the special condition and the crime committed. In Voelker, Defendant was convicted of possession of child pornography, but nothing in the record suggested that sexually explicit material involving adults contributed in any way to the offense. Contrarily, the Court found overwhelming evidence in the record of the case at hand to conclude that Thielemann’s exposure to sexual material will contribute to future offenses by Thielemann. The Court held the restriction not to be overbroad or vague, and therefore not a violation of Thielemann’s First Amendment rights.

The Court then considered the ban on computers with internet access. The Court noted the importance of computer usage in today’s society, but also explained that Thielemann is not banned from owning a personal computer, but merely from accessing the internet. Further, the ban on internet access expires after ten years of supervised release; in Voelker, a lifetime ban on internet access was found not to be narrowly tailored and contained no exceptions. Unlike the ban in Voelker, Thielemann may obtain permission from his probation officer should the need arise to access the internet for specific purposes. Finding a nexus between the special conditions of supervised release imposed and the aspects of the offense committed, the Court found no Constitutional violations and upheld Thielemann’s sentence.

Child Pornography

Federal Law defines child pornography as “a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it a) depicts a minor engaging in sexually explicit conduct and is obscene, or b) depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex, and such depiction lacks serious literary, artistic, political, or scientific value.” Possessing, Making, and Distributing child pornography is illegal in all 50 states, including Pennsylvania, and it is an offense which carries serious legal penalties.

If you have been arrested and charged with owning, making, or distributing child pornography, the Law Offices of Marc Neff can help. There are defenses which are available to you, so do not hesitate to contact the Law Offices of Marc Neff immediately.

Posted On: August 12, 2009

Supreme Court of Pennsylvania Affirms No Right to Counsel for DUI Chemical Testing right of a criminal defendant to have the assistance of counsel in his defense is granted in the Bill of Rights, via the Sixth Amendment of the United States Constitution. The Sixth Amendment right to counsel differs from the Fifth Amendment right to counsel which is granted to a suspect via Miranda warnings. The Sixth Amendment right is offense specific, meaning that during a critical stage of the trial process, no governmental agent may question the defendant about the crime for which he is charged, without an attorney present. The Fifth Amendment right to counsel, however, applies to any potentially self-incriminating questioning by a known police officer, while the suspect is in custody, if the suspect has not knowingly and voluntarily waived his Miranda rights; the right to remain silent, anything said by the suspect may be used against him in Court, the right to an attorney, and that an attorney will be provided if the suspect cannot afford one. In summary, the Fifth Amendment right to counsel applies in situations where there are cops, custody, and interrogation. The Sixth Amendment, however, does not apply until the first critical stage of the trial process.

On appeal, a man convicted of driving under the influence challenged the admission of a blood-alcohol content test which was used as evidence against him at his trial. The man had been involved in a single car accident, and when police arrived, the man was observed to have had bloodshot eyes, slurred speech, and the smell of alcohol. The man was taken to a hospital where a blood test was obtained without a warrant or the presence of counsel. The blood test showed a BAC of 0.223%, nearly three-times the legal limit and meriting charges of DUI of the highest rate of alcohol; carrying the most severe penalties under the DUI statute.

Appealing his conviction, the man argued that the blood test at the hospital constituted a critical stage at which the Sixth Amendment right to counsel, via Article I, section 9 of the Pennsylvania Constitution, attached. Under Pennsylvania’s implied consent law, any person who drives, operates, or is in actual physical control of the movement of a vehicle has been deemed to have given consent to chemical tests of blood, breath, or urine when an officer reasonably suspects the person is driving under the influence. Therefore, rights under Miranda would not apply as the person has been deemed to consent to the testing. The question for the Court was whether the blood test constituted a critical stage in which the man was entitled to counsel under the Sixth Amendment.

The Court cited to Rothgery v. Gillespie County, Texas, a 2008 case decided by the Supreme Court of the United States, which held “a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.” The Court determined that the Pennsylvania Constitution is coterminous with the Sixth Amendment, providing no further protection. On this basis, the Court concluded that the blood test taken in the hospital was part of an “evidence gathering” investigation, consented to by the man via the Implied Consent statute, and that it was not a critical stage for Sixth Amendment purposes. As noted in the opinion, the only state which does recognize a federal constitutionally-based right to counsel prior to chemical testing is the state of Maryland. A limited right to counsel also exists in Alaska, Missouri, North Carolina, North Dakota, and Vermont. Minnesota and Oregon provide for the right to counsel prior to chemical testing in their respective State Constitutions as well.

Criminal defense is a complicated and often confusing area of the law. For a complete explanation of the full panoply of rights available, one should consult an experienced criminal defense attorney. For over twenty years, the Law Offices of Marc Neff has been providing advice and counsel to those charged with a crime.