Success!

Back in February, I wrote about a client who was facing a DUI charge after being found sleeping in the driver's seat of an idling vehicle. I mentioned that under Pennsylvania law, this was probably NOT a DUI.

A couple days ago, the prosecutors in this matter agreed. Five DUI charges (and a mandatory 90 days in jail) were wiped away in exchange for a guilty plea to public intoxication and a misdemeanor drug charge, resulting in a short period of probation.

No pitch. No extensive article today. Just happy for a just result and a well-served client.

Purchasing a gun with a criminal record? It's a trap.

For all of the hot air that gets exchanged between politicians and pundits on the controversial issue of gun control, I've seen almost no one actually dig into an obvious topic of discussion: What do the current background check laws surrounding guns actually say? This omission is a shame. Whether you're a staunch supporter of the Second Amendment, or believe guns shouldn't be owned by anyone except the military and police, there is something rotten in the current background check laws surrounding guns, and it merits discussion.

GUNS AND CRIMINAL RECORDS

If you want to own a gun and carry a criminal record, there are two main statutes you have to deal with. First, the federal law:

"It shall be unlawful for any person-- ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which as been shipped or transported in interstate or foreign commerce."

18 U.S.C. § 922(g)(1).

And the similarly phrased Pennsylvania law:

"A license [to own a firearm] shall not be issued to any of the following: ... An individual who is charged with or has been convicted of a crime punishable by imprisonment for a term exceeding one year except as provided for in section 6123 (relating to waiver of disability or pardons)."

18 Pa. C.S. § 6109(e)(1)(viii).

The bottom line: You may not own a gun if you have been convicted of a crime "punishable by imprisonment for a term exceeding one year." Simple enough? Not at all.

BACKGROUND CHECKS: FORMS AND TRAPS

In order to comply with the above laws, would-be purchasers in Pennsylvania gun stores undergo a background check performed by the Pennsylvania State Police. To someone who is unfamiliar with U.S. gun laws, "background check" probably sounds like this:

You walk into a gun store, pick out a gun, and write your name, social security no., date of birth, etc. on a form. The police look up your record. If your criminal record is clean, you're allowed to buy the gun. If you have that forbidden "crime punishable by imprisonment for a term exceeding one year," on your record, the police instruct the gun store clerk to turn you down. You leave the gun store disappointed and move on with your life.

If only it were so simple. Here's how it really works:

You walk into a gun store and pick out a gun. You tell the gun store clerk you're interested in making a purchase. The store clerk tells you that you must fill out two forms first:

First, there is Form 4473 from the U.S. Department of Justice Bureau of Alcohol, Tobacco, Firearms and Explosives (downloadable here). Form 4473 does not just ask you for your name, date of birth, etc. It asks roughly a dozen different questions about your history, including this:

ATF Form 4473, No. 11(c) (original emphasis included).

Below these questions are 8 lines of bold but tiny text: 

ATF Form 4473 (text above signature line).

Once you're done with the ATF form, you'll get a second form, this time from the state. It's called SP 4-127, and looks like this. The form contains almost the same question:

SP 4-127, No. 30(G). And almost the same fine print warning:



SP 4-127, No. 33.

If your criminal record is clean, you'll check "No" on these forms, the background check will come back clean, and you'll be able to purchase a gun.

If your criminal record is not clean, and you're not sure which side of the "crime punishable by imprisonment for a term exceeding one year" line you fall on, you won't know what to do. The store clerk won't be able to help you, but he or she will tell you that if you check "yes" to anything the form asks, you might as well not submit it at all because your gun request will be denied. Maybe you missed the warning language about "false statements" on the forms. You check "no." Give it a shot. The background check comes back as "Denied." You leave the store.

A week later, the police call and ask to meet with you. Shortly after that, you're under arrest for knowing false statements to authorities in an attempt to get a firearm. The crime is punishable by up to ten years in prison under federal law, 18 U.S.C. § 924(a), and up to seven years in prison under Pennsylvania law. 18 Pa. C.S. § 6111(g)(4)(ii).

At trial, you'll have only one defense: That while you got the answer to these forms wrong, you did not "knowingly" get it wrong. It was a mistake, not a lie. Maybe you'll succeed in convincing the jury of your mistake. If not, your criminal record just got a whole lot worse.

Based on the two forms cited above, the current background check laws are not just a safeguard against people with a criminal record obtaining a firearm. Intentionally or unintentionally, these laws can act as a trap to arrest and prosecute the poor or careless reader with a criminal conviction in the past.

In Pennsylvania, the following crimes are examples of what is punishable by more than one year in prison:

• Theft of more than $50 (or retail theft of more than $150)
• Criminal mischief (vandalism) causing more than $1,000 in damage
• Many second offense and all third offense DUIs
• Unsworn falsification (typically lying to a police officer)
• Simple assault
• Second offense solicitation of prostitution

With the exception of simple assault, none of these crimes are necessarily violent in nature, and therefore, none of these crimes immediately jump to one's common sense as being the type of thing that would prohibit possession of a gun. In most cases, a person sentenced for one of these crimes would face probation, not incarceration, and when jail time is required (such as DUI, which often carries mandatory jail terms), the total incarceration time would probably not be in excess of one year.

For people who were convicted and sentenced for these types of offenses years and decades ago, and have lived a normal life since, it may not be clear what constitutes a "crime punishable by imprisonment for a term exceeding one year." It may be simple enough to confuse "punishable" with how you were really punished, regardless of whether or not the form warns you otherwise.

THE POINT

There is no readily discernable reason that the current background check forms adopted by the federal and state governments need to become a game of "Answer Correctly Or Else." The police already check to make sure that every person who seeks a firearm does not carry a criminal record that would make firearm possession illegal. This same goal could be served, just as effectively, by requiring firearm purchasers to state their name and identifying information, verify their identity, and leave things at that. Why add the extra quiz question? Why make it a serious criminal offense to get that quiz question wrong?

Until someone wiser than I answers these questions (or changes the forms), the best advice I can give to anyone seeking a firearm that has anything questionable in their record is to be very very careful. For whatever reason, the process of obtaining a legal firearm in Pennsylvania and the U.S. for those with a criminal record is high risk and low reward: You cannot afford to get a question wrong on these forms. Check your criminal record. Consult with an attorney. Do everything you can possibly do to make sure that the information you submit to the police is right. Or do not submit anything at all.

What the heck just happened to the Philly School District?

Last week, one of the top stories in Philadelphia, reported by Philly.com, Newsworks, NBC, and others, was a Pennsylvania Supreme Court decision stripping out almost all of the Philadelphia School District's governing powers.

This is a complex matter that may have huge effects on the 134,000 students in Philadelphia's traditional public school's, as well as the roughly 67,000 students enrolled in charters. I could not find a news story that really got past the "?!?" point and dug into what the court opinion says, what will happen now, and what may happen soon. So I'll give it a shot.

THE CASE

Background

The court decision at the heart of this is West Phila. Achievement Charter Elem. Sch. v. Sch. Dist. of Phila., 31 EM 2014 (Pa. 2016), which you can read in full here. The decision, released on February 16th, is moderately lengthy and very technical, but here is a snapshot:

Basically everything done by school districts in Pennsylvania (build schools, negotiate teacher contracts, decide whether to allow a charter school) is governed by the state's Public School Code, which dates back to the 1940s. In 1998, the Public School Code was amended to add § 6-696(i)(3). § 6-696(i)(3) gave schools in financial "distress" the ability  to suspend or revoke charter schools as well as any part of the Public School Code that it did not wish to follow. The theory behind this law change was that allowing broke school districts to ignore parts of the law would allow them to reduce expenses and get back on their feet more easily. For instance, if a school district is able to close a charter school without following the Public School Code requirements, it will no longer have to pay that school for teaching some of the school district's students.

Fast forward to 2001: The Philadelphia School District was in financial distress, and the Public School Code was again amended, this time getting rid of the Philadelphia School District (and local school board) entirely and replacing it with the state governor-appointed School Reform Commission (SRC).

The Plaintiff in this case (West Philly Achievement Charter Elementary School), asked the SRC to allow it to run as a charter school in 2001. The SRC said yes and gave the school a 5-year charter (license to run). In 2006, the school requested and received another five years. In 2011, the school asked again and the SRC tacked on a condition:

Under the Public School Code, a school district has the right, after a charter school's students do poorly on the PSSA four years in a row, to place "reasonable restrictions" on the charter school and require that the school improve before those restrictions are lifted. In 2011, the SRC decided to flex its muscles under § 6-696(i)(3) for the first time and remove the requirement that a charter school is struggling before restrictions are placed on it. Instead, the SRC told West Philly Achievement (which was not struggling) that it could continue as a charter school provided that it limited its size to 400 students.

West Philly Achievement balked and kept running without the SRC's permission. Things came to a head in 2013 when the SRC used § 6-696(i)(3) to rescind/supersede additional parts of the Public School Code, including:

• Limits on the SRC's ability to revoke/suspend charter schools (previously, the charter school had to fail in specific ways; now it could be revoked at will)
• The right of a charter school to appeal the denial of a charter (previously, a charter denial could be appealed to a state board; the SRC appears to have nixed this right)
• The rules that school districts could not limit the size of charter schools.

In response, West Philly Achievement sued, claiming that the law that the SRC used, § 6-696(i)(3), was unconstitutional:

The Legal Issue

The Pennsylvania Constitution states in part that "The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives." PA. CONST. art. II, § 1. Pennsylvania courts have interpreted this sentence to mean that the state legislature cannot simply delegate its law making powers to other groups and exit stage right. Instead, any law that gives another group legislative power (like § 6-696(i)(3) did to the SRC) must have detailed guidelines and objectives explaining what the legislature is trying to accomplish by giving power away. The law should also require the party receiving power to explain every time it steps outside of the law why it is doing that and how that fits in with the legislature's goal.

Here, the Supreme Court took it for granted that § 6-696(i)(3) was intended to make it easier for the SRC to improve its finances (by, for example, limiting the extent of charter schools that cost the district a lot of money). But where § 6-696(i)(3) went wrong was it allowed the SRC to do basically whatever it wanted without any explanation (explaining how suspending a portion of the Public School Code would help the SRC's finances) and without any restriction. The Supreme Court found that the law, as written, delegates too much power from the legislature to the SRC, and is therefore unconstitutional.

WHAT NOW?

The clear answer to "what now" is that the SRC has no ability to limit the growth of charter schools. If many more Philadelphia School District students wish to attend a charter school instead of a regular public school, there is nothing the SRC can do to prevent charter school proponents from building enough charter schools to suit that.

Because every seat filled in a Philadelphia charter school takes away a per-student tax payment to the Philadelphia School District/SRC, the Supreme Court decision opens the door for a lot more financial trouble for the district in the months and years ahead.

WHAT MAY HAPPEN SOON?

Here is the good news for anti-charter school people. Despite a lot of excitement and doomsday reactions, this entire ruling doesn't have to be a big deal. The Supreme Court basically told the legislature last week that its law stunk; it violated the Constitution. The Supreme Court explained how it violates the Constitution: It gave the SRC too much power without providing reasonable limits and making the SRC explain why it was doing what it was doing. The solution to all of this should be apparent: Rewrite the law, and get it right this time.

It's unclear what the attitude is in Harrisburg for giving this another shot, and politics is not something I'm equipped to dive in to here. But in the present circumstance, where state legislators have acted to bail out the insolvent Philadelphia School District in years past, and this new court decision will spell additional financial trouble, it stands to reason that there will be strong motivation to fix this problem and fix it soon, giving the SRC back much of its charter school-limiting power.

(Forgive the platitude, but) time will tell.

Expungement Law in PA is About to Become Less Ridiculous

In Pennsylvania, being convicted of a crime almost always taints you forever. There is no way to erase what you have done, nor is there a way to prevent a friend, family member, or employer from seeing it by simply going on the Internet.

Currently, you may ask a Pennsylvania judge to erase or "expunge" your criminal record only if you meet one of the following requirements:

• You're 70 years old and have not been arrested for 10 years.
• You've been dead for 3 years.
• You are trying to delete a "summary" offense (traffic tickets, disorderly conduct, harassment, and other crimes most people care little about) and have not been arrested for 5 years. 
• You're 21 years old and were convicted of underage drinking.

42 Pa. C.S. § 9122. You can also seek an expungement if you were not "convicted" of a crime but placed on "ARD" (a one-time slap-on-the-wrist allowed by prosecutors for many minor to moderate crimes). Id. But that's it.

Convicted of theft in 1995? Wait until you're 70 years old... or dead (and maybe your son or daughter will try to posthumously clear your name)

Convicted of marijuana possession in 1990? Same answer.

Convicted of DUI in 1985? Same answer.

For a fortunate handful, this is all about to change.

On February 16, 2016, Governor Tom Wolf signed 42 Pa. C.S.  § 9122.1 into law, scheduled to go into effect by this coming December. What does § 9122.1 do? It cuts through the "70 years old or dead" requirement for anyone convicted of three or fewer crimes up to a second degree misdemeanor.

The law carries some exceptions (cannot remove most simple assault convictions, anything involving Megan's Law, and a handful of other crimes considered especially serious even though the grading is relatively low). Unlike expungement, this new law will not erase a criminal record entirely (government agencies and licensing organizations will still see it). And the law carries the same requirement that you remain arrest-free for 10 years before anything can happen.

But, compared to the status quo, and the typical pace of decriminalization in Pennsylvania (zero), this is still a lot. For the first time ever, ordinary (pre-retirement) people with a serious but old misdemeanor conviction will be able to clear their record. The crimes that this law will allow you to suppress include but are not limited to:

• All first offense and some second offense DUIs
• All first and second offense thefts of less than $200 ($150 for retail theft (shoplifting))
• All first, second, and third offense drug possession charges
• All first, second, and third offense prostitution charges

The past few years have been positive for people who wish to move on with their lives and not get bogged down by an old criminal record. In 2012, Philadelphia passed an ordinance popularly dubbed "Ban the Box," prohibiting employers of ten or more from looking at a employee applicant's criminal record until after he or she was interviewed. In 2015, this law was expanded to most employers of any size, and prohibited looking at a criminal record at all after an applicant had been free of incarceration for more than 7 years. (This latest amendment will come into effect in March).

Now, the entire state of Pennsylvania is slowly improving as well.

Driver's Seat with the Engine On: How Far is Too Far to Make a DUI in Pennsylvania.

It's two in the morning and you don't know where the time went. How many beers did you have? Four? Five?

You get down from the bar stool and feel the sway of unsteady feet. You're not safe to drive.

By the time you make it to the parking lot, you've got two problems: 1) It's horribly cold outside; 2) You don't know how you're getting home.

There's your car. You get in. Maybe your spouse/parent/friend (who you owe big time) is on the way to get you. Maybe you'll sleep it off and drive home around dawn. Either way, you've got somewhere between thirty minutes and several hours before you get to be somewhere warm. Except for your car...

You're already in the driver's seat, because of course you're in the driver's seat. You turn the ignition on and turn the heat on high. Eventually, it starts getting warm. You fall asleep...

...and cue the flashing blue and red lights. The knock on the window. The stumble out of the car. "Walk in a straight line." "Stand on one leg."

"I'm placing you under arrest for suspicion of driving under the influence."

I've told this story, a variation on what happened to a client, to several people. Up until now, all of them told me that my client was sunk.

I'm relieved to say that all of my friends are wrong.

Under the DUI statute in Pennsylvania, "An individual may not drive, operate, or be in actual physical control of the movement of a vehicle" if drunk. 75 Pa. C.S. § 3802. Since those words were written, judges have gone back and forth explaining what it means to be "in actual physical control of the movement of a vehicle." One thing they have gotten pretty clear is this: If you start a parked car and do nothing else, you are not guilty of DUI.

The case that made this so is Commonwealth v. Byers, 650 A.2d 468 (Pa. Super. 1994), in which the Pennsylvania Superior Court made this powerful comment:

The Commonwealth is trying to encourage intoxicated people to "sleep it off" before attempting to drive, yet it wants us to punish Byers for doing just that. This case is only one example of the illogical and inconsistent results we would see if this Court were to adopt a per se rule that found a defendant guilty of drunk driving for merely starting his car. Under such a mechanical application, if Byers had left the bar to call a cab using a cellular phone in his car, and needed to start the car to power the phone, the Commonwealth could charge him with drunk driving. This result would punish an individual for attempting to comply with the law. In light of the foregoing analysis, we hold that a defendant is not in actual physical control of a vehicle merely because the vehicle has been started. In the present case, the Commonwealth did not introduce enough evidence to show actual physical control. Therefore, the evidence is not sufficient to prove the first element of driving under the influence beyond a reasonable doubt.

Id. at 471.

This decision has not gone unchallenged. In 1996, a non-binding plurality decision from the Pennsylvania Supreme Court criticized Byers by writing, "While it may be laudable that one who realizes that he is incapable of safe driving pulls over to 'sleep it off,' the legislature has made no exception to the reach of the statute to such individuals." Commonwealth v. Wolen, 685 A.2d 1384, 1286, n.4 (Pa. 1996). In 2010, the Superior Court admitted that "Byers had been called into question" and refused to extend its protection to a defendant found sleeping in his car by a store that did not sell alcohol (unlike Byers who was found sleeping in front of a bar). Commonwealth v. Toland, 995 A.2d 1242, 1247 (Pa. Super. 2010). The logic is that if you are found far away from a source of alcohol, then you probably became drunk before you got there.

Despite these later decisions, the protection offered by Byers remains good law. The person left drunk in the cold does not commit a crime for "sleeping it off" in his car, even if he is in the driver's seat, and even if he turned the engine on. 

This doesn't mean that you cannot do yourself a favor by sleeping in the backseat, or staying out of your car and avoiding suspicion entirely. But if that fails, you still have options left.