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Criminal Defense FAQ

FAQ—1

A Preliminary Hearing is like a Trial in that my witnesses can prove my innocence, correct?

Short Answer: No.

A Preliminary Hearing is not a Trial. This is one of the biggest misconceptions for potential clients especially those with first offenses. A Preliminary Hearing is before a Magisterial District Justice [“MDJ”] who may or may not be a licensed attorney. The MDJ Court is not a Court of record, meaning one must either record their hearings or hire a stenographer, or a Court Reporter to preserve and memorialize the hearing, if a hearing occurs. At a Preliminary Hearing, there is no credibility so all cases regarding credibility will be determined at a Trial unless one’s attorney can dismiss the case for other reasons or by agreement with the District Attorney for a Summary Plea. MDJs can only accept pleas for Summary Offenses.

A Preliminary Hearing is very important because this is where one can have the case dismissed, set up a great plea offer, and most importantly gain knowledge of the Commonwealth’s case. Always hire an attorney to handle one’s Preliminary Hearing.

Look for my future in-depth blog about Preliminary Hearings.

FAQ—2

Can I purchase a firearm if I have an old Felony or old Misdemeanor, have a Protection from Abuse against me, or was Involuntarily Committed?

Short Answer: No.

No matter how much time has passed since one has been convicted of a Felony, on Misdemeanor in the First Degree, or convicted of Domestic Violence, one cannot purchase, possess, or own a firearm unless one restores their firearm rights with a pardon, expungement, or civilly restores one’s firearm rights. See Exceptions on page 4 of the 2020 ATF 4473 Firearm Form. A link is below to the ATF site where one can download in PDF the current 2020 ATF 4473 Firearm Form.

See ATF 4473 2020 Form: https://www.atf.gov/firearms/atf-form-4473-firearms-transaction-record-revisions

FAQ— 3

I do not need to hire an attorney for my legal issue, correct?

Short Answer: Yes.

No matter what your legal issue is the best way to handle your legal issue is to hire an attorney. One can hire an attorney to handle everything or hire an attorney to create the documents needed only which if one does it this way, one would file and serve the documents. The only place you probably do not need an attorney is the first domestic relations child support or spousal support conference because there is no legal argument allowed. It is only when one appeals, files exceptions where legal argument is allowed, and an attorney is needed.

FAQ— 4

I have a Medical Marijuana Card, can my employer discriminate against me and fire me?

Short Answer: No, unless one is under the influence during work

Pennsylvania is a terminate, fire, “at will” state. “At Will” means, one can fired for almost anything except one cannot be fired, or terminated, on the basis of discrimination.

Pennsylvania’s Medical Marijuana Act [“MMA”] along with the caselaw below prevents one from being fired, or terminated, just because one legally uses Marijuana. If this has occurred, contact me right away.

See § 10231.303. Lawful use of medical marijuana, 35 P.S. § 10231.303, 35 P.S. § 10231.2103, and Palmiter v. Commonwealth Health Sys., Inc., 2021 PA Super 159, 260 A.3d 967 (Pa. Super. Ct. 2021)

(b) Employment.—

(1) No employer may discharge, threaten, refuse to hire, or otherwise discriminate or retaliate against an employee regarding an employee’s compensation, terms, conditions, location, or privileges solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.

(2) Nothing in this act shall require an employer to make any accommodation of the use of medical marijuana on the property or premises of any place of employment. This act shall in no way limit an employer’s ability to discipline an employee for being under the influence of medical marijuana in the workplace or for working while under the influence of medical marijuana when the employee’s conduct falls below the standard of care normally accepted for that position.

35 P.S. § 10231.2103

FAQ— 5

I have a Medical Marijuana Card, I can smoke marijuana, right?

Short Answer: No.

Pennsylvania’s Medical Marijuana Act [“MMA”] [add cite] at this time only allows one to vape or ingest marijuana. One cannot smoke marijuana. If you do smoke marijuana one would be violating the MMA subjecting themselves to criminal penalties along with possibly having their MMA card revoked. The MMA actually states if one is criminally charged and violates the MMA, one can also be charged with further criminal and civil penalties.

See § 10231.303. Lawful use of medical marijuana, 35 P.S. § 10231.303

FAQ— 6

I have a Medical Marijuana Card, can my employer force me to provide my doctor’s notes and receipts for what I purchased?

Short Answer: No, unless case law states otherwise

Pennsylvania’s Medical Marijuana Act [“MMA”] at this time does not include anything that I am aware of that allows employers to force one to violate their privacy rights. At this time, I am not aware of case law on this point. However, remember Pennsylvania is an “at will” State, so one might be fired for non-compliance even if one is right and the employer is wrong. One must be ready to fight for what is right. So, call if one wants fight to an employer doing this and be fired. Until case law determines this issue, I do not think an employer can evade one’s privacy rights just because one legally uses Marijuana.

FAQ— 7

I have a Medical Marijuana Card. I legally use Medical Marijuana. Can using legally prescribed Medical Marijuana affect child custody?

Short Answer: No.

“(c) Custody determination.–The fact that an individual is certified to use medical marijuana and acting in accordance with this act shall not by itself be considered by a court in a custody proceeding. In determining the best interest of a child with respect to custody, the provisions of 23 Pa.C.S. Ch. 53 (relating to child custody) shall apply.
35 P.S. § 10231.2103

FAQ— 8

I have a Medical Marijuana Card. Can I legally purchase as much Medical Marijuana as I want and can buy?

Short Answer: No.

Pursuant to Pennsylvania’s Medical Marijuana Act [“MMA”] the physician who actually is licensed to practice medicine, usually the physician who approved the Medical Marijuana Card certifies the amounts one can purchase and use.

(b) Requirements.–A dispensary shall have a physician or a pharmacist available, either in person or by synchronous interaction, to verify patient certifications and to consult with patients and caregivers at all times during the hours the dispensary is open to receive patients and caregivers. If a dispensary has more than one separate location, a physician assistant or a certified registered nurse practitioner may verify patient certifications and consult with patients and caregivers, either in person or by synchronous interaction, at each of the other locations in lieu of the physician or pharmacist. A physician, a pharmacist, a physician assistant, or a certified registered nurse practitioner shall, prior to assuming duties under this paragraph, successfully complete the course established in section 301(a)(6).2 A physician may not issue a certification to authorize patients to receive medical marijuana or otherwise treat patients at the dispensary.

(d) Limitations.–No dispensary may dispense to a patient or caregiver:

(1) a quantity of medical marijuana greater than that which the patient or caregiver is permitted to possess under the certification; or
(2) a form of medical marijuana prohibited by this act.

See 35 P.S. § 10231.801. See also § 10231.403. Issuance of certification 35 P.S. § 10231.403

FAQ— 9

I was stopped by the Police. I voluntarily made a statement because being honest will help me, right?

Short Answer: No

If stopped by Police, or Pennsylvania State Police [State Trooper], or any Government agent, simply ask if are you free to leave. If yes, then leave. If no, then politely ask for an attorney and say nothing else.

Everyone has a Fifth Amendment and Pennsylvania Constitutional Article I Section 9 Right to not incriminate oneself. Because whatever one says can and will be used against the person making the statement. Volunteered statements waive one’s Fifth Amendment and Pennsylvania Constitutional Article I Section 9 Right to not incriminate oneself. There is no duty for one to incriminate oneself and help prove the criminal case against oneself.

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