Thursday, February 13, 2014

Criminal Attorney Inbox: Police didn't read me my rights when I was arrested so my case should be dismissed, right?

By:  Brian M. Fishman

Philadelphia Criminal Defense Lawyer Brian M. Fishman of The Fishman Firm, LLCIntroduction

Wrong. If only it was that simple. I can not tell you how many times I am asked this question. The general belief is that police must read someone their Miranda warnings upon arrest. I assume the theory is that if one's rights were violated by the failure to be read their rights, then the arrest should be invalid and any subsequent charges should be thrown out of court. Unfortunately, this is a flawed premise and not the law. Despite what many believe, the police have no obligation to read Miranda warnings upon arrest. The only time police or detectives have to read you your rights is if you they are seeking to conduct a "custodial interrogation". So, what is a custodial interrogation? Well, before answering that question, let's briefly discuss Miranda warnings.

You Have The Right To Remain Silent...

Miranda warnings are designed to protect one against their 5th Amendment right against self-incrimination and their 6th Amendment right to counsel. But, we all watch too much television and believe that once placed in handcuffs, the police, while gently guiding our head into their cruiser, must begin reading us our Miranda rights. And, if they fail to do so, they are violating our constitutional rights. On TV, when arrested, we generally hear the following, "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney before speaking to the police and to have an attorney present during questioning.  If you cannot afford an attorney, one will be appointed for you free of charge."

Sunday, December 8, 2013

Create a Diversion: How to Avoid a Criminal Record for First-Time Offenders


Brian M. Fishman Philadelphia ARD AttorneyA criminal record can have a serious impact on one's life including the loss of or inability to obtain future employment or financial aid, loss of government benefits, rejection from the college of your choice or inability to join the military.  However, there are a number of diversion programs for first-time offenders of minor offenses which allow you to avoid conviction.  While each county District Attorney's Office in Pennsylvania has some of its own diversion programs and different requirements to be admitted, this post will focus on those programs available in Philadelphia county.  Some of these programs require the defendant to file a petition for expungement following successful completion while others have automatic expungement through the court.  It is important that you know the difference as the biggest benefit to all of these programs is that the charges are ultimately withdrawn and can be expunged from your record.  But, if there is no automatic expungement, the charges will remain on your record despite the fact that they have been withdrawn.  I have previously discussed Pennsylvania expungement law.  The most common diversion programs in Philadelphia include:

  1. ARD (Accelerated Rehabilitative Disposition) Program;
  2. SAM (Small Amount of Marijuana) Program;
  3. AMP I (Alternative Misdemeanor Program I);
  4. AMP II (Alternative Misdemeanor Program II);
  5. Summary Diversion Program;
  6. Section 17 or Section 18 Drug Program; and
  7. Drug Treatment Court.

Thursday, November 14, 2013

Criminal Defense Attorney Inbox: If I didn't have any drugs on me when arrested, how can I be charged with possession with intent to deliver?

Possession with intent to deliver lawyer PhiladelphiaBy:  Brian M. Fishman

I represent many individuals charged with possession with intent to deliver narcotics in Philadelphia and the surrounding counties.  This offense is commonly referred to as PWID but means dealing or selling drugs.  I previously wrote about PWID, including common defenses and mandatory minimum sentencing here.  In order to sell or deliver drugs to another, one must obviously possess the drugs first.  But, often clients come into my office and indicate that the police did not recover any drugs off them when arrested.  So they ask the above question.  But you do not need to have drugs on you when arrested in order to be charged, and more importantly, convicted of possession with intent to deliver. In fact, you do not even have to have sold or delivered drugs to another to be convicted of possession with intent to deliver.  I discuss actual versus constructive possession here.  There are many ways one can get charge with PWID and some include:
  • Observed sales on the street during a narcotics surveillance;
  • A car stop in which large quantities of drugs are recovered from a vehicle;
  • Conspiring with others who are selling drugs on the street;
  • Being present or associated with a house where a search and seizure warrant is executed; and
  • A mail package interdiction case where drugs are being sent through the postal service.
Now, using each of the above situations, lets review a factual scenario where you are not arrested with any drugs on your person but where the evidence that you are guilty of possession with intent to deliver is still strong.

Thursday, October 24, 2013

Pennsylvania Expungement Law Looks To Be Expanded

Misdemeanor Expungement in Philadelphia
By:  Brian M. Fishman

Citizens in Pennsylvania with low-level misdemeanor convictions in their past may soon be eligible for an expungement of their criminal record if they have remained arrest-free for a period of time post-conviction.  Senate Bill 391 recently leaped over its two biggest hurdles by passing the Pennsylvania Senate and gaining the support of the Pennsylvania District Attorney's Association.  The new law would allow individuals convicted of certain non-violent misdemeanors of the second- or third-degree to petition the court for expungement of their record if they remained arrest free for seven or ten years depending on the grading of the offenses.  I previously posted about Pennsylvania expungement law here.

Thursday, October 17, 2013

Electronic Discovery Introduced in Philadelphia Municipal Court

By:  Brian M. Fishman

In a continuing push to go paperless, Philadelphia courts recently implemented electronic filing (eFiling) in its criminal courts division.  This system allows attorneys to file an entry of appearance, motions to suppress, bail reduction motions, parole petitions and many other types of pre- and post-trial motions and petitions online.  It has changed the way attorneys do business with the courts as they can now file court documents from the comfort of their office rather than walk multiple paper copies of a filing over to the court house.  It has also made the courts more environmentally friendly.

The Philadelphia courts, in conjunction with the District Attorney's Office, have now taken an additional step toward simplifying matters and placing trial documents online.  They have introduced electronic discovery (eDiscovery) for Municipal Court matters.

Friday, October 11, 2013

Philadelphia Under Fire: The Serious Nature of Firearm Offenses

By:  Brian M. Fishman

Brian M. Fishman Criminal Defense Attorney Brian M. Fishman
Possession of a firearm is not only a crime itself but can greatly increase the sentence for violent crimes and possession with intent to deliver drugs.  For example, if you are convicted of aggravated assault, robbery, rape, burglary or another violent crime and you are in possession of a firearm (or even an object that the victim believes is a firearm—replica, BB gun, fake gun), the court is required to impose at least a mandatory minimum sentence of 5 years of state incarceration.  If convicted of possession with intent to deliver and you or a co-defendant are in possession of firearm or a gun is found in close proximity to the drug sales, again you face a mandatory 5 year state sentence.  Therefore, carrying a firearm is always a serious offense and one that requires a criminal defense attorney that will evaluate the case from all angles and zealously advocate to protect your rights.  Brian M. Fishman has fought and won many cases in which clients were charged with possession of a firearm.

Tuesday, September 10, 2013

Possession with Intent to Deliver Narcotics: An Infographic

By:  Brian M. Fishman

Possession of a controlled substance with the intent to distribute is a felony in Pennsylvania.  The District Attorney will have to prove that the defendant intentionally or knowingly possessed a controlled substance, and had the intent to distribute it. 

I have provided an infographic below illustrating some basic definitions regarding the possession and distribution of a controlled substance as well as common defenses to these charges.  You can learn further details about the common defenses here.  The penalties a convicted defendant may face will depend on the type and quantity of the controlled substance.  However, below you will find the mandatory minimum sentences associated with many drugs based on the weight of drugs recovered and whether it is a first or subsequent conviction for possession with the intent to deliver, commonly referred to as PWID in Philadelphia. 

If you have been charged with possession of a controlled substance with the intent to distribute in Philadelphia, please contact Philadelphia criminal defense attorney Brian M. Fishman for a free consultation concerning your legal rights.  


Possession with intent to deliver narcotics, including crack, cocaine, heroin, PCP and marijuana in Philadelphia, Pennsylvania by a Philadelphia criminal drug attorney.