Questions Answered by Brian Fishman - Justia Legal Answers

• 9 February 2013Q: What is income guideline to qualify for a public defender for a dui charge?
  A: Whether you qualify for a PD is not based on the charged offense but rather your income level. Therefore, the fact that it's a DUI charge is not relevant to the equation. You could be charged with possession of marijuana or with a homicide and the qualifications for a PD would be the same. That being said, the income guidelines can change from county to county and can't be summed up by just what your income is. They consider many factors including whether you have dependents, how many, whether you pay child support or not, what your monthly income vs. expenses are. You usually have to go down to the county PD's Office and apply to see if you qualify. If you're rejected because they say you make too much, you can still address it with the court to see whether the court will appoint the PD or a private attorney that handles court-appointed cases. I know this isn't a definitive answer but unfortunately it's not as cut and dry as your question suggests. I hope this at least gave you an idea of some of the issues that will be raised when applying for a PD. If I can be of further assistance, please don't hesitate to contact me. Good luck. Brian M. Fishman fishmanlaw@gmail.com www.PhillyCriminalDefense.blogspot.com
• 8 February 2013Q: Do I need an attorney to avoid serving time for a probation violation
  A: The short answer: Yes. The long answer: Yes. The fact that you are on probation means that were either found guilty or pled guilty to a crime in the past. A judge placed you on probation because he/she felt that you were a good candidate to remain free in society and be supervised by a probation officer rather than sent to jail. You'll often hear judges say, Probation is a privilege, not a right . If you have somehow violated probation, then I certainly recommend hiring a strong criminal defense attorney. Your freedom is on the line. How much is your freedom worth? And just to be clear, I have no idea what your violation is and it's quite possible that your judge will either continue your probation or give you a new term of probation if it was a minor infraction. But, you'd rather take that chance with a quality attorney next to you. It's very difficult to answer this question with more certainty as the type of violation will have much to do with whether or not you are facing jail time as a result of the violation. Two other key factors are (1) your past criminal record and (2) whether this is your first violation of probation for this or any past case that you were on probation for. The judge needs to feel comfortable that he's not placing you or other members of the community in harms way by leaving you on the street. I hope that this assisted you. If you have further questions, please do not hesitate to contact me. I wish you all the best. Brian M. Fishman fishmanlaw@gmail.com www.PhillyCriminalDefense.blogspot.com
• 8 February 2013Q: A family member is in Bucks County Corrections on a parole violation for drugs. He was to be released and in the last
  A: I'm sorry to hear about your family member's situation. Prisons are very private places and it's sometimes even difficult for attorneys to get information from them. However, I would suggest that you contact a criminal defense attorney to first reach out to his counselor at the prison to find out as much information as possible. After that, I'd have the attorney file a parole petition with the judge that is supervising your family member. The prison or the District Attorney's Office will, at that point, want to tell the court what it is he tested positive for because the DA will likely be seeking additional jail time for the positive urine test. At that point, since your family member was in jail for a drug charge and then had a positive urine test, his attorney may try to suggest that prison is not the best place for your family member. Rather, he needs help and should be referred to an in-patient treatment facility. That way, you can get your family member the help it sounds like he needs and get him out of jail and hopefully back on the right track. A judge is not going to be happy that he tested positive while incarcerated. Therefore, the judge is unlikely to just let him go. However, recommending an in-patient treatment facility as an alternative to jail may be the best solution for all parties. You don't want the judge to just seek punishment and send your family member upstate because of a positive drug test. One other issue you need to be aware of is if what he tested positive for was a controlled substance, like marijuana, the DA's Office may try to charge him with a new criminal offense of possession of contraband since you obviously can not have marijuana in a prison. If convicted of being in possession of contraband on prison grounds, your family member is facing an automatic mandatory minimum two year state prison sentence. In addition, the prison may be investigating who recently visited him to determine if they believe a visitor brought the controlled substance into the prison and delivered it to your family member. I recently wrote an article about contraband in prison on my blog which you can read at the below link. I hope this helps answer your question. If you need additional assistance, please do not hesitate to contact me. Brian M. Fishman fishmanlaw@gmail.com www.PhillyCriminalDefense.blogspot.com
• 31 December 2012Q: If am requesting monetary Damages for future lost wages & Emotional Distress, are those Compensatory Damages?
  A: Compensatory and punitive damages are not broken down by what they are paying for (ie. lost wages vs. emotional distress vs. medical costs). Rather, compensatory damages are all damages to make the injured party whole whereas punitive damages are awarded to punish the defendant if their conduct was grossly reckless or outrageous beyond general negligence. But, lost wages are generally viewed as compensatory damages whereas emotional distress damages may be considered punitive damages if you're seeking them under a theory of intentional infliction of emotional distress. One could make the argument that payment for emotional distress, such as the need to see a psychologist following a bad car accident are compensatory damages under a theory that they are necessary medical damages as a result of the other party's simple negligence. So, it depends on the conduct of the defendant or responsible party. In a personal injury case such as a car accident, premise liability (communally referred to as a Slip & Fall) or a malpractice action, the injured party can receive compensatory and/or punitive damages if the other party was negligent or at fault. Compensatory damages are intended to cover actual expenses or money lost related to your injury caused by the party at fault. Compensatory damages are not intended to punish the party who hurt you, rather they are intended to ensure that the responsible party pays for the additiional costs, such as medical bills, due to the accident and their negligent behavior. Compensatory damages can also include any wages that were lost as the result of the other party's negligence. If you are injured and can't work, it is the party who caused your injury's responsibility to supplement the income that you are no longer receiving because of their negligent actions. Punitive damages can be sought in almost any lawsuit but you have to show that the responsible party's actions were so outrageous as to warrant punishment. So, compensatory damages seek to make the injured party whole whereas punitive damages seek to punish the responsible party by making them pay additional money under the theory that it will act as a deterrent for them and others not to commit the act again. But, punitive damages are much more difficult to obtain for the injured party as they are only awarded against a person to punish them for outrageous conduct. Punitive damages serve as a penalty against the defendant and are not for the purpose of providing additional compensation to the plaintiff. Pennsylvania law presumes that a plaintiff has been made whole for his injuries by compensatory damages, so punitive damages are only awarded if the defendant's conduct is so reprehensible that further sanctions are necessary to punish or deter the defendant.
• 22 December 2012Q: In Pennsylvania I had an ard dui in June 2002 which was completed in June 2003 with a 7 year time-frame; in Oct 2011 I
  A: Unfortunately, your October 2011 DUI is considered a second offense under the 10 year look-back rule that was in effect at the time of your October 2011 DUI even though your first DUI for which you got ARD occurred when there was only a 7 year look-back rule . There is a case, Commonwealth v. Tustin that is directly on point with the issue that you're dealing with. A link to the opinion in Commonwealth v. Tustin can be found here: http://caselaw.findlaw.com/pa-superior-court/1199572.html. This is directly on point with the issue that you're dealing with. Sorry to be the bearer of bad news. If I can be of further assistance, please do not hesitate to contact me. I wish you all the best. Brian M. Fishman fishmanlaw@gmail.com www.PhillyCriminalDefense.blogspot.com
• 22 December 2012Q: 12 years ago, I was on fed.probation for 3 years and completed all aspects of the system. Can I now Vote or own a gun?
  A: I don't know the answer as it depends on what you were on probation for. But, the NACDL (National Association of Criminal Defense Lawyers) has put together a great resource on the Restoration of Rights for collateral consequences of criminal convictions. This document shares much if not all of the information you're seeking regarding the right to vote and own/possess a firearm. You can find the document here: http://www.nacdl.org/uploadedFiles/files/resource_center/2012_restoratio... I hope it is of assistance to you. If you're having trouble with the above link or can't retrieve the document, feel free to contact me and I'll be more then happy to email it to you. Brian M. Fishman fishmanlaw@gmail.com www.PhillyCriminalDefense.blogspot.com
• 22 December 2012Q: Can a parole officer make you pay fines if you dont have the money
  A: A failure to pay fines or costs associated with your conviction is a necessary condition of complying with probation or parole. Failure to pay them can be deemed a technical violation and you can be violated and go to prison. However, if you truly have no means to pay any of your fines and costs, you must inform your parole office of this immediately to try and work something out. Pennsylvania does not have debtor's prison and therefore does not believe in incarcerating its citizens merely because of nonpayment. That being said, most people can afford to pay something and therefore usually a payment plan is arranged, even if it's $5/month to demonstrate that you're making some effort toward payment and remaining in compliance with parole. I certainly advise against simply not paying and seeing what happens. Your parole officer will consider that a technical violation and will not be happy. I tell any client of mine who is on probation or parole that COMMUNITCATION is the single most important part of supervision. Parole officers have power and they like to use it if they can. They can hold the key to your freedom. So, whether you like your parole officer or not, you must comply with the conditions set and communitcate with him/her if there's an issue. So, if you truly can't pay, you must inform your parole officer. If you can't make a scheduled appointment or you're going to be late, call your parole officer and explain the situation. Even if you're going to test positive for a drug test, tell your parole officer and explain the issue. They're going to find out anyway. You're in a much better position if you're honest with them and communicate with them, then if you just blow them off. This way they know that you respect their authority and power and will give you more respect and trust and will be less likely to violate you. I hope that helps. If you have additional questions or need further assistance, don't hesitate to contact me. Brian M. Fishman fishmanlaw@gmail.com www.PhillyCriminalDefense.blogspot.com
• 22 December 2012Q: Stole jewlery from a family member and pawned it no charges were pressed in pa what are the charges
  A: If no charges were filed by police or the District Attorney's Office in your county then there are no charges. But, I'm assuming you're asking, What crimes did I committ? The obivious one is theft. You may also be charged with receiving stolen property. Theft is essentially defined as the unlawful taking of property of another with the intent to permanently deprive the owner of it. Obviously, since you sold it, you have no intentions of returning it and therefore you've committed a theft. How the charge is graded depends on the value of the property. And, not necessarily what you sold it for but the fair market value. The key threshold is $2,000. If the property taken was over $2,000 then you would face a third degree felony charge of theft. If it was below $2,000, it would be a misdemeanor and it could be an M1, M2 or M3 depending on the value. If no charges were filed, perhaps you have a forgiving family member or maybe he/she doesn't know that the items have been taken yet. Either way, you should not admit that you took the items to either the family member or police. You should not give any statements of admission to anyone. If you suspect that the police are investigating the matter, you should contact an experienced criminal defense attorney in your area immediately and have them deal with the authorities. If you have additional questions or need further assistance, please don't hesitate to contact me. I wish you the best of luck. Brian M. Fishman fishmanlaw@gmail.com www.PhillyCriminalDefense.blogspot.com
• 20 December 2012Q: Can a judge sign an arrest warrent when he is a relative to someone involved in said case.
  A: Yes, a judge who is related to someone involved in a case can sign an arrest warrant in the case. Would I do it if I was a judge: Absolutely Not...No Questions Asked. There is nothing illegal with a judge signing a warrant in this situation. But why create even the impression of impropriety? The judge is only looking for trouble and it could effect the case down the road. Especially when I'm sure there are plenty of other judges in the jurisdiction to sign the warrant so there is no appearance of a bias or motive on the part of the judge. I'm assuming the judge knows the victim as its unlikely that he/she would sign a warrant causing the arrest of a relative. If that's the case, it's likely to cast a shadow over the case & make others wonder, Did the judge sign that warrant just because the victim was his/her relative and if it wasn't a relative he/she wouldn't have signed it? There would be no reason for a judge to put him/herself in that situation intentionally. If I can be of further assistance, please don't hesitate to contact me. Brian M. Fishman fishmanlaw@gmail.com www.PhillyCriminalDefense.blogspot.com