A dangerous drug is readily available in some states despite efforts by state regulators to ban it. Spice is a slang term for synthetic marijuana. It was once an actual brand but has become shorthand for a wide variety of similar products. It’s a mixture of herbs that have been sprayed with synthetic cannabinoids. The point of experimenting with cannabinoids was to eliminate the effects of cannabinoids that create a “high” while maintaining the pain relief effects. However, with many of the compounds used, this did not happen—actually, they can be just as potent as many forms of marijuana. Nevertheless, Spice is legal in most states and can be found at smoke shops, gas stations, or online.
Research on the safety of Spice is now becoming available and initial studies show its dangerous effects. Chris Wrath’s father had never heard of Spice until his son killed himself following Spice-inducted hallucinations. This has led California state regulators, on two occasions, to outlaw some of the compounds found in spice. Yet it remains widely available. Spice manufacturers have responded to the regulatory efforts by changing their formula, and then re-stocking retailers with supposedly legal blends. Further, Spice is regularly marketed in the U.S. as “incense.” This is to prevent it from having to adhere to more stringent regulations were it labeled a medicine or smokable product.
NMS labs conducted a study where they tested two samples—one from a California smoke shop and another used by Chris Wrath, the young man who killed himself during a Spice-induced psychotic episode. According to their findings, both samples complied with the law at the time of testing.
Given these tragic findings, in Pennsylvania, both the DEA and Commonwealth have banned synthetic cannabinoids and have classified them as “Schedule I” drugs. Unless the Commonwealth decides to attach specific penalties to these substances, the penalties for synthetic marijuana include: (1) possession with intent to distribute: an ungraded felony with a maximum sentence of up to 5 years in prison and a fine of up to $15,000; (2) simple possession: up to one year in prison and up to $2,500 in fines for a first offense. If it is a subsequent offense then it is up to 3 years in prison with up to $25,000 in fines; and (3) DUI: up to six months in prison, 12 month license suspension and $5,000 in fines for first offense.
Nevertheless, it remains very much a cat and mouse game in Pennsylvania. Just as in California, lawmakers can act swiftly to ban these drugs, but manufacturers are even quicker. Therefore, it is critical that parents are aware of these synthetic drugs and the fact that just because they are available online or in convenience stores does not mean that they are safe or legal. Please educate your children on the danger of Spice and take it just as seriously as any other drug. Click here for general information about Drug Crimes
In any case, every chemical has different properties and produces different results in blood tests. Currently, many labs are using non-validated methods, which can result in false positives, false conclusions, and false convictions. This is why any case involving synthetic drugs should be handled by a well-versed attorney. Whether it’s a possession or a DUI case, the toxicology reports need to be examined by a defense attorney who specializes in these types of cases. At Fairlie and Lippy, a free initial consultation with our accomplished attorneys to discuss your important matter will convince you that we are the best Pennsylvania law firm for you.
The Pennsylvania Supreme Court has amended a rule that significantly affects criminal defendants’ rights to a habeas corpus hearing. The amendment is included below with the proposed terms in bold. Specifically, the proposal addresses the issue that arises after a defendant waives the preliminary hearing and subsequently challenges the State’s establishment of a prima facie case. The proposal indicates that a knowing waiver of the preliminary hearing precludes the right to a habeas corpus hearing after the rule goes into effect on October 22, 2012.
The preliminary hearing is one of the first major events to occur after one has been charged with a crime in Pennsylvania. The preliminary hearing is usually held in front of a district judge or magistrate and it is designed to determine whether the prosecution has enough evidence to hold the case for court. The government must come forward with sufficient witnesses and information to convince a neutral judge that there is some evidence a crime occurred and there is some evidence linking you to that crime. If not the case, or at least the charge(s) not so proven, are dismissed.
There are many reasons that counsel may advise that the defendant waive the preliminary hearing. This is frequently done to get a bail reduction or to maintain bail that the prosecutor threatens to raise, to take advantage of a deal wherein charge(s) are dropped, to avoid putting a victim through a traumatic hearing if the charges are not likely to be contested at trial, or to move the case forward when the defendant intends to plead guilty.
In these cases, the defense could still make the prosecution prove its case later by filing a writ of habeas corpus. A habeas corpus is a legal action where a person challenges the basis for their confinement. Essentially, it is a demand that the government show a valid reason for detaining the person. As such, a habeas corpus is another appropriate vehicle for challenging the prosecution’s ability to establish a prima facie case. The right of habeas corpus is one of constitutional magnitude in Pennsylvania, and courts have held that the State has a significant burden to prove that any alleged waiver of the right was knowing and intelligent.
However, the legislature has done an end run around this burden with this new rule which effectively dictates that a waiver of the preliminary hearing will also likely waive the defendant’s constitutional right to a habeas corpus hearing. As a practical matter, this will also likely result in more preliminary hearings being held at a time when the presiding district justices are being scaled back.
There are a few limited exceptions in the proposed rule, which make adequate representation even more critical. If you or someone you know has been charged with a crime in Pennsylvania, contact Fairlie & Lippy and we will ensure that your rights are protected and preserved during all phases of the criminal court process.
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TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 5. PRETRIAL PROCEDURES IN COURT CASES
PART D. Proceedings in Court Cases Before Issuing Authorities
Rule 541. Waiver of Preliminary Hearing.
(A) The defendant who is represented by counsel may waive the preliminary hearing at the preliminary arraignment or at any time thereafter.
(1) The defendant thereafter is precluded from raising the sufficiency of the Commonwealth’s prima facie case unless the parties have agreed at the time of waiver that the defendant later may challenge the sufficiency.
(2) If the defendant waives the preliminary hearing by way of an agreement, made in writing or on the record, and the agreement is not accomplished, the defendant may challenge the sufficiency of theCommonwealth’s prima facie case.
(B) The defendant who is not represented by counsel at the preliminary arraignment may not at that time waive the preliminary hearing.
(C) If the defendant waives the preliminary hearing and consents to be bound over to court, the defendant and defense attorney, if any, shall certify in writing that
(1) the issuing authority told the defendant of the right to have a preliminary hearing,
(2) when represented by counsel, the defendant understands that by waiving the right to have a preliminary hearing, he or she is thereafter precluded from raising challenges to the sufficiency of the prima facie case, and
(3) [that] the defendant voluntarily waives the hearing and consents to be bound over to court.
(D) Once a preliminary hearing is waived and the case bound over to the court of common pleas, if the right to a preliminary hearing is subsequently reinstated, the preliminary hearing shall be held at the court of common pleas unless the parties agree, with the consent of the common pleas judge, that the preliminary hearing be held before the issuing authority.
(E) When the defendant waives the preliminary hearing, the case shall proceed as provided in Rule 543(C).
If you are facing DUI charges alcohol intake monitoring technology may help you stay out of jail, or shorten the period of jail time that you may have to do, and allow you to continue on with your daily life. Instead of putting defendants in jail prior to trial, more and more judges are allowing defendants to wear a bracelet that goes around the ankle, beneath clothing, touching the skin. This high-tech bracelet takes a sample of the skin every 30 minutes, and then tests the sample in a fuel cell to determine whether the person wearing the bracelet has been consuming alcohol. It will then send a notification to a state officer with the information gathered. If there has been a violation, the individual will be notified and subsequent proceedings will likely occur.
This option allows a Judge to be certain that the person is not drinking, and thus at risk of re-offending, during the monitoring period. Studies show that those who wear this bracelet are less likely to violate DUI laws when compared with traditional sanctions like jail time, fines, or community service requirements. As more studies are published, more judges are willing to try this method, making this option more readily available.
The person who wears the bracelet will typically incur a $12 a day cost during the time period that the bracelet is worn. Depending on the offense and whether the person is a first time or multiple offender, a court will typically require the bracelet to be worn for approximately 90 days. Despite this cost, many people who have chosen this treatment reported saving money from increased employment opportunities. Some even reported saving money by virtue of not purchasing the alcohol that they otherwise would have been consuming.
Although the benefits of this technology are significant, there are potential issues. On rare occasions, the bracelet might provide a false positive. This issue is compounded by the fact that proving that the bracelet gave a false positive in court may be difficult because little evidence can be presented to prove that the bracelet was faulty. This is because the time it takes for the bracelet to notify a member of the state, and then notify the wearer that alcohol was consumed in violation of the court order, can be longer than a couple hours. Thus, this makes it nearly impossible for the defendant to get an independent test done in sufficient time to contradict the erroneous reading. These potential problems are being addressed, however, as the technology continues to improve and readings are taken more frequently to correct false or inaccurate signals. Furthermore, state officers and courts have given the defendant the benefit of the doubt in some uncertain situations.
If you have been charged with a DUI or DWI, it is important to consult with a knowledgeable lawyer about your rights and your options going forward, including the possibility of utilizing alcohol intake monitoring technology and potentially avoiding jail time.
Thousands of defendants in both state and federal court may be in jail based on evidence that the United States Justice Department, as early as 1984, knew was unreliable. In many criminal cases, the prosecution uses lab reports produced by forensic experts that link a defendant to a victim or to a crime scene. In a substantial amount of these cases, the forensic reports are based on microscopic hair and fiber analysis done by a forensic expert. In short, an expert will compare a hair strand found at or near the scene of the crime with the defendant’s hair to determine if any similarities exist.
In many cases, however, this analysis has proven unreliable. In the 1990s, after reports that FBI lab results were producing unreliable evidence, the FBI commenced an investigation to determine whether forensic evidence was reliable. One of the problems with this investigation was that it was severely limited to one problematic expert, when the scope of questionable microscopic evidence reaches well beyond just this one individual.
More problematic yet, Justice Department officials stated that when an error is found in a lab report or analysis, prosecutors are not constitutionally or otherwise legally required to inform the defendant directly when they learn of such errors. Of the cases that were investigated, less than half of defense attorneys were notified of the results of the investigation. This raises a substantial issue of whether the government considers unreliable scientific evidence to be exculpatory, which would require the state to disclose the evidence under the federal Constitution.
The problem with hair and fiber analysis
One of the major problems with these lab reports is the inconsistency of hair analysis. Forensic experts will typically consider a variety of factors to determine whether the hair strand found at the scene matches that of the defendant.
The problem with this analysis is that forensic experts do not agree on which characteristics to use nor on how many similar characteristics are necessary to have a statistical match. While some experts relied on six or seven traits, others need around 20 or 30 to determine whether a match exists. One agent concluded that only three similar characteristics, that the hair was black, that it was human head hair, and that it was from an African American, showed the hair belonged to the defendant.
Even if two hair fibers look substantially similar, the FBI has acknowledged that it cannot conclusively prove that the hairs did indeed come from a particular person. For instance, in one particularly tragic case, Sentae Tribble, convicted for murder in 1980 and who has served 28 years in prison, was found guilty in large part because of a stocking cap found a block away from the crime scene. A forensic expert there said that all hairs from the stocking were human and that one of the strands matched Tribble’s based on a microscopic characteristic analysis.
Just this past year, after a long struggle, the hair samples were finally tested for DNA. The results of the DNA testing showed that none of the thirteen hairs on the stocking cap matched his DNA. In further adding to the unreliability of microscopic analysis, the DNA test showed that twelve of the thirteen hair strands were of African origin, while one was from a canine. The FBI agent conducting the microscopic analysis for Tribble’s trial determined that the hair came from a Caucasian; that is, the agent failed to recognize the difference between human and canine hair, yet testified at trial that the hair belonged to the defendant.
Moving forward
The problem with microscopic hair analysis may be less about the procedure and more about the impact and testimony regarding the analysis. For instance, even if two hairs are extremely similar, approximately eleven percent of the time those hairs came from two different people according to Dweight E. Adams, the director of an FBI lab from 2002 to 2006. Despite this, many agents testify at trial that rarely can they not tell the different between two hair samples, or rarely do two hair strands that are extremely similar come from two different people.
Now, criminal defense lawyers are pushing for DNA testing in cases where hair analysis was a key piece of evidence in a conviction, and where the other evidence at trial was very limited. Although Justice Department officials agreed to do a review, they are again limiting the scope of the review, this time to D.C. cases only.
Defending against microscopic hair analysis requires an experienced criminal defense attorney that knows how to properly defend against unreliable evidence that is presented at trial.
A Port St. Lucie, FL woman claimed that she could not conduct field sobriety testing because her breasts were too large. Maureen Raymond, 49, was stopped for speeding and crossing double yellow lines after a report of a reckless vehicle was called in. A Sheriff’s Deputy asked her to submit to field sobriety testing, which she refused, stating “hell no, not with these … big boobies.” She ultimately did make some effort to attempt the testing, but also began dancing during one test and then started to disrobe to prove the size of her chest before being stopped by the Deputy. She reported having injuries of “big breasts” and whiplash that interfered with her ability to complete the tests. She was arrested and, once back at the station, she was deemed to have refused a breath test due to providing an insufficient breath sample.
