Case Results

Philadelphia DUI Case Dismissed for Discovery Violation

March 2017

My client, T.K., a Philadelphia college student, made the mistake of drinking and driving.  As a result, T.K. was arrested and charged with a first offense DUI; specifically, DUI: Gen Impairment/Incapable of Driving Safely - 1st Offense (75 § 3802).  It was not T.K.'s first contact with the Philadelphia criminal justice system however.  He had a prior drug possession charge and this made the prospective resolution of his case more involved.  Although T.K. was working towards completing his college degree, he was also interested in pursuing a skilled trade; namely, work as an electrician or a HVAC specialist.  While attending school, T.K. worked for a private contractor as an electrician apprentice.  Knowing that T.K. was working hard towards his future goals, as with all clients' cases, I took it upon myself to do everything possible to resolve his criminal case as best as possible.

What is the likelihood of getting "ARD" for a DUI charge if a person has a recent prior conviction?

Although I figured the Philadelphia District Attorney's Office would not be receptive to allowing T.K. to resolve his DUI case through the Accelerated Rehabilitation Diversion program (also known as the "ARD" program) in light of his prior criminal conviction (despite it being for misdemeanor drug possession only), there would be no harm in requesting as such.  (My general approach to all clients' case is to explore all possible options in an effort to get clients the best possible result.)  It was a long shot because T.K. was not a "first-time offender," but with the prospect of ARD in mind, I drafted a comprehensive ARD application for submission to the Philadelphia District Attorney's Office.  As part of the ARD application, I had T.K. obtain character letters from concerned people in his life, including his employer, college professors, family, friends, and so forth.  Because of the sensitive nature of the criminal case against T.K., I had suggested that the character letters could speak to his good deeds as a person in general, and that the character letters did not have to reference the charges.  I also suggested that the character letters could be addressed in a general manner, rather than having to reference who I intended to submit the letters to at the Philadelphia District Attorney's Office on T.K.'s behalf. 

Once the ARD application was complete, I submitted to the Chief of the Diversion Unit at the Philadelphia District Attorney's Office.  The Chief and I went to law school together, and although he cannot always agree to a request for consideration that I may seek on behalf of a client, he will always consider a request from me as diligently as possible.  In that regard, the Chief and I had a conversation once regarding the work I submit to him on behalf of clients.  The Chief informed me that unlike most attorneys who submit a "barebones" request, my work on behalf of clients is without comparison, and that although he cannot always agree to such a request, he will do everything possible to allow for requested consideration in light of my exhaustive efforts on my clients' behalf. 

I have fighting for clients as an attorney for close to a decade, and I know how a case is likely to be received by District Attorney Offices throughout Pennsylvania.  Knowing that T.K.'s ARD application would most likely be denied because of his (recent) prior criminal conviction, this in fact turned out to be the case.  I was disappointed, but not surprised - I always try to "win them all," but at times, other measures need to be taken to achieve a favorable outcome.  I explained the decision of the Philadelphia District Attorney's Office to T.K. and informed him that we could still achieve a favorable outcome, and more specifically, a potential "Not Guilty" verdict, by going to trial for the DUI charge.

How is a the constitutionality of a DUI checkpoint determined?

With it now confirmed that ARD would not be a option to resolve T.K.'s DUI charge, I continued with trial preparation for T.K.'s case.  In that regard, I continued reviewing and analyzing the "discovery" that was obtained from the Philadelphia District Attorney's Office.  The discovery in a Philadelphia DUI case generally consists of applicable Philadelphia Police reports, any traffic citations related to the car stop (known as "T.V.R.'s" in Philadelphia), and the Breathalyzer or blood test report (in T.K.'s case a blood test was performed which indicated he had marijuana/THC metabolite in his blood sufficient to be deemed driving under the influence of a controlled substance at trial).  Additional discovery may also be applicable depending on the nature of the DUI case.  Regarding T.K.'s DUI charge, that was in fact the case - Because T.K. had been stopped at a checkpoint, I wanted to review the checkpoint discovery to determine if there were any issues to be raised concerning whether the checkpoint, and also T.K.'s being stopped at the checkpoint, was constitutional.  (When the location of a Philadelphia DUI checkpoint is proposed, a "supervising" Philadelphia Police Officer, such as a Lieutenant at the applicable Police District, will review the location of DUI arrests to establish grounds for a proposed checkpoint location.  If the DUI statistics do not support a proposed checkpoint location in Philadelphia, the checkpoint, if established, will be declared unconstitutional if challenged in Court through a "pre-trial motion.")

At the trial listing, I informed the Philadelphia Municipal Court judge that I sought to obtain checkpoint discovery from the Philadelphia District Attorney's Office.  The judge ordered the Philadelphia District Attorney's Office to provide me with the checkpoint discovery within ten days of the next court listing, and T.K.'s case was continued until that later date.  The Philadelphia District Attorney's Office is known for providing discovery as late as possible, and it did not surprise me that I waited for the checkpoint discovery and it never arrived prior to T.K.'s next court date.   It may be a tactic to delay discovery in some instances because arguably the less time a defense attorney has with the discovery, the less prepared the attorney will be at the time of trial.  Having reviewed and analyzed countless clients' checkpoint discovery in the past, I know exactly what needs to be ascertained and I can do so whether I have the checkpoint discovery a month before trial of the morning of trial.  My obvious preference would be to have any and all information regarding a case as early as practical, but knowing that the Philadelphia District Attorney's Office was in violation of the judge's order regarding discovery, I intended to use the delay of the Philadelphia District Attorney's Office to my advantage on the day of court.

Can a DUI discovery violation allow a DUI case to be dismissed?

T.K.'s next trial listing came and I approached the assigned Assistant District Attorney prior to the start of court.  It is of course at times necessary to "lock horns" with a prosecutor, but in many instances, it can be more effective to be diplomatic when addressing a client's case.  Because the Assistant District Attorney (ADA) who was prosecuting T.K.'s case at this time was not the same ADA as at the earlier trial listing, I explained that I had requested checkpoint discovery "on the record," that the Philadelphia Municipal Court judge had ordered that the Philadelphia District Attorney's Office provide the checkpoint discovery within ten days of the trial date, and the discovery had not been received.  The ADA reviewed his file and tried to indicated that the checkpoint discovery had been emailed on a a prior date.  Knowing that discovery in Philadelphia criminal cases is often available by email, not only had I checked my email on multiple occasions in the weeks prior to court, I had also previously accessed the First Judicial District of Pennsylvania Criminal Electronic Fling System to confirm whether or not the checkpoint discovery had been provided in any capacity - It had not which was of no surprise.  Although the ADA was doing his job, he was a gentleman about the matter which is always appreciated.  In closing, I explained that I would be seeking the dismissal of T.K.'s DUI case because of the discovery violation.  The ADA explained that he would object; having successfully resolved countless DUI cases in Philadelphia, the position of the Philadelphia District Attorney's Office also came of no surprise.

The time came for T.K.'s DUI case to be called, and the judge asked if I was ready to proceed.  I explained the circumstances to the judge and also the conversation I had with the Assistant District Attorney earlier than morning.  The judge asked me if I had received the checkpoint discovery as I had previously requested.  I explained to the judge that the Philadelphia District Attorney's Office failed to provide me with the requested discovery as ordered by the judge who presided over the DUI case at the last trial listing (Philadelphia Municipal Court judges' schedules rotate on a weekly basis).  As expected, the ADA tried to explain that the checkpoint discovery had been emailed.  The judge asked me to confirm whether or not this had taken place, and knowing that a defense attorney "who is well prepared has half the battle won," I explained all of the specific steps I had taken on several occasions prior to confirm that the checkpoint discovery had not been emailed.

I made a motion to the judge that the DUI case should be dismissed - The judge's response, "Case dismissed for lack of prosecution."  With those words being spoken, T.K.'s criminal case was over, and more importantly, was over in his favor.  He would be able to continue with his classes and his work no longer having this burden on his mind.  People make mistakes - That is the nature of life.  Having worked with T.K. for several months, I came to know him as a good person who made a mistake and learned a lesson.  As with all clients, I am pleased that I could help T.K. continue working towards his goals.

Philadelphia Attorney to Fight DUI Checkpoint Arrest | Lawyer to Fight Philadelphia DUI Checkpoint

If you or a loved one is facing a Philadelphia DUI charge, whether the arrest was at a DUI checkpoint or was due to other circumstances, contact the Lento Law Firm today.

Practice area(s): DUI / DWI

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Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Joseph D. Lento has nearly a decade of experience advocating for his Family Law clients in courtrooms in New Jersey as well as Pennsylvania. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and protects their interests.

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Attorney Joseph D. Lento has nearly a decade of experience successfully resolving clients' criminal charges in Philadelphia and the Pennsylvania counties. If you are having any uncertainties about what the future may hold for you or a loved one, contact the Lento Law Firm today! Criminal defense attorney Joseph D. Lento will go above and beyond the needs of any client, and will fight until the final bell rings.

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