Preparing for the IRS Trust Fund Recovery Penalty Interview

September 16, 2014 by

Stop, pay your taxes!

If you fail to pay over the federal employment tax you withhold from your employees’ salaries the IRS will eventually come knocking on your door. This problem generally occurs when a business runs short of cash to pay both operating expenses and payroll. There may be enough cash to pay vendors and pay net payroll, but not enough to pay the federal government the employer and employee withholding taxes. Employer withholding taxes are 7.65% of gross payroll which consists of 6.2% social security tax and 1.45% medicare tax. The employee withholding consists of federal income tax and state income withheld in addition to the 6.2% social security tax and 1.45% medicare tax.

When the quarterly 941 federal employment tax return is filed with the IRS, the Government gives the employee credit for the tax withheld listed on the quarterly 941 returns whether the employer pays over the employer and employee withholdings or not. That is why the tax withholdings are called trust fund taxes because the employer is holding the money in trust for the federal government. The funds do not belong to the employer and if the employer uses the money for something else he is in essence stealing from the federal government.

If you fail to pay over the employer tax withholding every month or quarter a Revenue Officer will show up at your business unexpectedly and want to interview you. You should hire a tax attorney before speaking with the Revenue Officer. I have handled many trust fund recovery interviews and have been able to reduce the proposed assessments dramatically if I was involved before the IRS Form 4180 interview took place. IRS Form 4180 is the form the Revenue Officer completes during the interview. The Revenue Officer will try to determine if you are the responsible party by asking:

  1. Did you make deposits or sign the business checks;
  2. Did you determine what bills were paid;
  3. Did you have ability to hire and fire employees;
  4. Did you sign the federal employment and income tax returns;
  5. Did you sign loans on behalf of the business;
  6. Were you involved in the day to day operations of the business;
  7. Did you make or authorize payment of federal tax deposits.

If the Revenue Officer determines that you are the responsible party he will issue Form 2751 which is a Proposed Assessment of the Trust Fund Penalty. I will help you determine If you do not agree with the proposed liability you can submit an appeal request within 60 days of the issuance of the notice. If the case is not resolved in IRS Appeals you can file a complaint in federal district court.

If a Revenue Officer does call or visit your business, please call Gregory J. Spadea of Spadea & Associates, LLC at 610-521-0604, in Ridley Park, Pennsylvania.

Filed Under: Tax Law Tagged With: , , , , , , , , ,

What Happens to Your Debts When You Die?

September 9, 2014 by

When you die, your executor has responsibility to pay all your remaining debts if your estate has enough probate assets to pay them. Probate assets are assets that were in your name alone and pass by your will. Before your executor pays any creditors he or she must first pay the estate administration expenses such as funeral costs, grave marker, probate fees, medical bills, attorney fees and rent for the previous six months prior to your death. After the administrative expenses are paid, the secured creditors are paid and any probate assets remaining will go to pay unsecured creditors.

If the estate is not solvent, and a creditor is paid more than he is entitled to receive, the executor can be held personally responsible to the extent of the overpayment. The executor also may be personally liable if he or she distributes estate property without having given proper notice to those having a claim against the estate.

As a general rule, debt collectors may not try to collect from your heirs. However, there are several exceptions. The first exception is if an heir was a co-signer of a particular debt in which case they would be responsible for that debt or if someone held property jointly with you, they would be responsible for any debts on the joint property. The third exception is if an heir inherits a car or a boat that had an outstanding loan, they would have to pay the loan off or the car or boat would be repossessed by the lender.

Creditors cannot be paid from any assets that pass directly to a beneficiary. Assets that pass directly to a beneficiary are called non-probate assets and include jointly owned bank accounts and any account or life insurance policy with a named beneficiary. Therefore a jointly held bank account would pass directly to the joint owner, and the funds in that account could not be used to pay creditors. Similarly, life insurance policies pass directly to the beneficiaries, so creditors do not have access to those funds. In addition creditors cannot access funds held in an irrevocable trust.

A debt collector may not contact your heirs or relatives to try to collect payment unless they were co-signers of the debt or the debt was a jointly owned debt. Debt collectors are allowed to contact the executor of your estate, or your spouse, or your parents if you were a minor, to discuss the debts but may not discuss the debts with anyone else.

Contact Gregory J. Spadea

If you have any questions or need help probating an estate please contact Gregory J. Spadea at 610-521-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Filed Under: Estate Planning, Family Law Tagged With: , , , , , , , , , , , ,

Probating a Pennsylvania Estate

September 2, 2014 by

Probating estates is also referred to as estate administration which is the process of managing and distributing a person’s probate property after their death. If the person had a will, the will goes through probate, which is the process by which the deceased person’s property is passed to his or her heirs and legatees (people named in the will). The entire process usually takes about 18 months. However, distributions from the estate can be made in the interim.

Here we set out the steps the surviving family members should take. These responsibilities ultimately fall on whoever was appointed executor in the deceased family member’s will. You should meet with an attorney to review the steps necessary to administer the decedent’s estate. Bring as much information as possible about assets, taxes and debts. Estate administration in Pennsylvania include the following steps:

  1. 1. Filing the original will and Death Certificate at the County Register of Wills in order to be appointed executor. You will take an oath, sign the petition and pay a probate fee to get the letters testamentary issued to you appointing you as executor. In the absence of a will, heirs must petition the court to be appointed administrator of the estate and may have to post a bond.
  2. 2. Giving formal notice to all the beneficiaries named in the will, and then filing a report with the Register of Wills.
  3. 3. Collecting all the assets. This means that you have to find out everything the deceased owned. You need to file a list, known as an Inventory with the Register of Wills within nine months of the date of death. You will also need to open an estate bank account to consolidate all the estate funds. Bills and bequests should be paid from the estate bank account, so that you can keep track of all expenditures.

    4. 4. Paying the federal estate tax if applicable and Pennsylvania inheritance taxes. If the estate was over $5,490,000 then a federal estate tax return needs to be filed for 2017. If any assets pass to anyone other than the spouse you need to file a Pennsylvania inheritance tax return. If you prepay the Pennsylvania Inheritance Tax within three months of the date of the death you receive a 5% discount. The Pennsylvania inheritance tax return is due nine months after the date of death, but you can apply for a six month extension to file the return.

    5. Filing final income tax returns. You must also file a final federal and Pennsylvania income tax return for the decedent for the year of death. If the estate holds any assets and earns over $600 of interest or dividends, or over $600 from sales of property a fiduciary income tax return for the estate will need to also be filed.

    6. Paying the administrative expenses and all the debts of the estate. The estate needs to pay for the funeral, probate fees, attorney fees and other administrative expenses first. The secured creditors are paid next, and then the unsecured creditors are paid with whatever is left. If creditors are not paid in the proper order, the executor may be held personally liable for the estate’s debts.

    7. Filing a Disclaimer with the Orphan’s Court within 9 months of the date of death.

    8. Distributing property to the heirs and beneficiaries. Generally, executors do not pay out all of the estate assets until after all the known creditors are paid, and the period runs out for other creditors to make claims.

  4. 9. Notifying the Pennsylvania Attorney General for any specific bequests over $25,000 or any bequests paid as percentage of the estate or any charitable bequests that will not be made.
  5. 10. Filing an informal final account. The executor must file an informal final account with all the beneficiaries listing any income to the estate since the date of death and all expenses and estate distributions. Once the beneficiaries sign a receipt and release approving the informal final account, the executor can distribute whatever is left in the reserve, close the estate bank account and file a status report with the Register of Wills.

If you need help probating an estate please contact Gregory J. Spadea of Spadea & Associates, LLC at 610-521-0604.

Probating estates is also referred to as estate administration which is the process of managing and distributing a person’s probate property after their death. If the person had a will, the will goes through probate, which is the process by which the deceased person’s property is passed to his or her heirs and legatees (people named in the will). The entire process usually takes about 18 months. However, distributions from the estate can be made in the interim.

Here we set out the steps the surviving family members should take. These responsibilities ultimately fall on whoever was appointed executor in the deceased family member’s will. You should meet with an attorney to review the steps necessary to administer the decedent’s estate. Bring as much information as possible about assets, taxes and debts. Estate administration in Pennsylvania include the following steps:

  • 1. Filing the original will and Death Certificate at the County Register of Wills in order to be appointed executor. You will take an oath, sign the petition and pay a probate fee to get the letters testamentary issued to you appointing you as executor. In the absence of a will, heirs must petition the court to be appointed administrator of the estate and may have to post a bond.
  • 2. Giving formal notice to all the beneficiaries named in the will, and then filing a report with the Register of Wills.
  • 3. Collecting all the assets. This means that you have to find out everything the deceased owned. You need to file a list, known as an Inventory with the Register of Wills within nine months of the date of death. You will also need to open an estate bank account to consolidate all the estate funds. Bills and bequests should be paid from the estate bank account, so that you can keep track of all expenditures.

    • 4. Paying the federal estate tax if applicable and Pennsylvania inheritance taxes. If the estate was over $5,490,000 then a federal estate tax return needs to be filed for 2017. If any assets pass to anyone other than the spouse you need to file a Pennsylvania inheritance tax return. If you prepay the Pennsylvania Inheritance Tax within three months of the date of the death you receive a 5% discount. The Pennsylvania inheritance tax return is due nine months after the date of death, but you can apply for a six month extension to file the return.

    5. Filing final income tax returns. You must also file a final federal and Pennsylvania income tax return for the decedent for the year of death. If the estate holds any assets and earns over $600 of interest or dividends, or over $600 from sales of property a fiduciary income tax return for the estate will need to also be filed.

    6. Paying the administrative expenses and all the debts of the estate. The estate needs to pay for the funeral, probate fees, attorney fees and other administrative expenses first. The secured creditors are paid next, and then the unsecured creditors are paid with whatever is left. If creditors are not paid in the proper order, the executor may be held personally liable for the estate’s debts.

    7. Filing a Disclaimer with the Orphan’s Court within 9 months of the date of death.

    8. Distributing property to the heirs and beneficiaries. Generally, executors do not pay out all of the estate assets until after all the known creditors are paid, and the period runs out for other creditors to make claims.

  • 9. Notifying the Pennsylvania Attorney General for any specific bequests over $25,000 or any bequests paid as percentage of the estate or any charitable bequests that will not be made.
  • 10. Filing an informal final account. The executor must file an informal final account with all the beneficiaries listing any income to the estate since the date of death and all expenses and estate distributions. Once the beneficiaries sign a receipt and release approving the informal final account, the executor can distribute whatever is left in the reserve, close the estate bank account and file a status report with the Register of Wills.

If you need help probating an estate please contact Gregory J. Spadea of Spadea & Associates, LLC at 610-521-0604.

Filed Under: Estate Planning, Real Estate Tagged With: , , , , ,

When Does an Estate Fiduciary Income Tax Return Need to be Filed

August 26, 2014 by

The estate must file a 1041 fiduciary income tax return if the estate has income or property sales over $600 during the tax year. So if the executor receives a 1099 under the Estate Tax Identification Number for over $600 of interest or dividend income, or real estate is sold in a subsequent year after death, a fiduciary income tax return will have to be filed. The federal estate fiduciary 1041 income tax return is due 3½ months after the close of the tax year.

Normally, estate fiduciary returns result in “excess deductions on termination”, which can be divided equally among all the beneficiaries, and used by them as itemized deductions on their personal federal income tax returns to increase their income tax refund.

There is no income tax on inheritances except to the extent that such items represent tax deferred items such as pension plans, annuities, IRA’s, and accrued E bonds or to the extent that they represent income earned after death, there is no inheritance tax on such post-death income. Income tax on such tax deferred items is due by the beneficiaries in the year they receive the income. A final federal income tax return for your loved one must be filed, assuming he met the filing threshold which for the 2014 tax year is $11,700, excluding social security for a decedent over the age of 65. In addition, if federal income tax was withheld, you would file to get the federal income tax refund regardless of the income earned.

There is never any Pennsylvania income tax due on inherited property including tax deferred property such as pension plans, IRA’s or annuities.

If there are U.S. Savings Bonds, the significant factors are: (a) the turnover date; and (b) income tax on accrued interest. The turnover date means that since bonds increase in value every six months, there is a loss of up to five months interest if cashing is not made in one of the two months in each year in which value increases. There are three choices with respect to reporting accrued interest on Savings Bonds: (1) Report it on the decedent’s final 1040 return; if he owes no tax, even with the interest included, this is the clear choice; (2) Report it on the estate’s fiduciary 1041 return, if this is done, ensure you have sufficient estate deductions to offset against the bond interest; or (3) Transferring the bonds without cashing, which makes sense if the beneficiary is in a low tax bracket.

If you were named as a beneficiary of an Individual Retirement Account (IRA), then you should consider the possibility of electing to stretch the pay-out over your own life expectancy if the plan administrator permits it. If not then you can take distributions over 5 years or elect to withdraw the entire balance. However, you must pay federal income tax on any distributions you receive in the year received.

Real estate, like stock, takes a stepped up basis at death, so that original cost to the decedent is irrelevant for income tax purposes. If you decide to sell a house and do not need the aid of a real estate agent to find a buyer, we can handle all the paperwork from the agreement of sale to closing for an additional fee. Keep in mind if you do not sell the property within fifteen months after the date of death we must value the property using the common level ratio or based on an appraisal.

Contact Gregory J. Spadea of Spadea & Associates, LLC at 610-521-0604 if you need help administering an estate or find yourself being appointed as an Executor.

Filed Under: Estate Planning, Real Estate, Tax Law Tagged With: , , , , , , ,

Is My Property Exempt From Pennsylvania Real Estate Tax?

August 19, 2014 by

A house

If you own a property that is regularly used by a charity or falls into one of the 8 categories below you may be exempt from paying real estate tax. To qualify for an exemption your property must be:

  1. Zoned in your Current Municipality for a Real Estate Tax Exemption

  2. An actual place of regular religious worship;

  3. A non-profit burial place;

  4. Property used regularly for public purposes;

  5. Owned Occupied and used by any branch or post of honorably discharged service persons and regularly used for charitable or patriotic purposes;

  6. Actually and regularly used by an institution of purely public or private charity for the purpose of the institution;

  7. A Hospital or institution of learning (schools) or charity including fire and rescue station founded and maintained by public or private charity; or

  8. A Public Library, museum, art gallery or concert music hall provided and maintained by public or private charity.

If your organization falls into any one of the seven categories listed above you can apply for an exemption from real estate tax in the county you are located. If you have any questions call Spadea & Associates, LLC at 610-521-0604.

Filed Under: Real Estate Tagged With: , , , , , , , , , ,

Police Cannot Search The Digital Information on a Cell Phone Without A Warrant

August 12, 2014 by

One hand holding a smartphone.

On June 25, 2014, the Supreme Court in a unanimous decision, ruled that police may not, without a search warrant, search digital information on a cell phone seized from an individual who has been arrested. The Court settled two conflicting cases Riley v. California and United States v. Wurie. In the Riley case, the Ninth Circuit Court of Appeals found that the search of the cell phone was permissible as a valid search incident to arrest, as it was “immediately associated” with his “person” when he was arrested. Because the cell phone was on Riley’s person when he was arrested, the police were justified in performing a full search incident to his arrest. In the Wurie case the First Circuit Court of Appeals held that warrantless cell phone data searches are unlawful under the search incident to arrest exception. It noted that the government failed to demonstrate that a cell phone search under such circumstances was necessary to promote officer safety or prevent the destruction of evidence. The fact that the officers had Wurie’s keys and his cell phone which they used to locate and enter his apartment without a warrant to “freeze” it while they obtained a search warrant was unconstitutional.

The Supreme Court in reviewing both cases indicated that the search incident to arrest exception to the Fourth amendment warrant requirement is inaccurate because warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant. The opinion then laid out a discussion of the handful of Supreme Court precedent in the search incident to arrest area, beginning with the seminal case limiting the scope of a search incident to arrest, Chimel v. California, 395 U.S. 752 (1969) (disallowing the search of an arrestee’s home even where he is arrested therein), and United States v. Robinson, 414 U.S. 218 (1973) (permitting the search of a cigarette pack found on the arrestee’s person at the time of arrest). The Supreme Court applied a balancing test for warrantless searches, which compares the degree to which a warrantless search intrudes upon an individual’s privacy versus the degree to which the warrantless search is needed for the promotion of legitimate governmental interests, the opinion discussed the difference between the search of digital information contained in a cell phone and the search of physical objects like the cigarette pack in the Robinson case. The Court then discussed the two rationales weighing in favor of permitting a search incident to arrest established in the Chimel case and followed in the Wurie case, to promote officer safety or prevent the destruction of evidence. As for the need to uncover and disarm weapons from a defendant, the court held that law enforcement officers are still free to search the physical aspects of a cell phone to make sure there are no physical threats. However, the digital information contained with a cell phone poses no physical danger to a police officer. Then, as for the interest of preventing the destruction of evidence, the Court held that there is not much of a threat of this, and that there are reasonable, cost-effective options available to law enforcement which can ensure that data will not be lost if they thereafter choose to apply for a search warrant.

Contact Our Office

If you are ever arrested or have your cell phone confiscated by police call Gregory J. Spadea of Spadea & Associates, LLC at 610-521-0604, located in Ridley Park, Pennsylvania.

Filed Under: Criminal Law Tagged With: , ,

Wrongful Death Proceeds Are Not Subject to Pennsylvania Inheritance Tax or Federal Income Tax

August 4, 2014 by

The Pennsylvania Wrongful Death statute allows the personal representative of an estate to bring an action for the benefit of a decedent’s spouse, children or parents to recover damages for the death of the decedent caused by the wrongful act, neglect, unlawful violence of another. The statute entitles a plaintiff to recover damages for pain and suffering, loss of earning power, medical and hospital bills, funeral expenses and certain estate administration expenses.

Wrongful death proceeds are not taxable for Pennsylvania Inheritance purposes or for federal income tax purposes. On the other hand survival action proceeds are subject to Pennsylvania inheritance tax. Since Pennsylvania taxes survival actions but not wrongful death actions, you, through your attorney want to maximize the wrongful death recovery amount. The court tends to allocate the proceeds of wrongful death actions and survival actions based upon the facts of the case and the evidence presented by your attorney.

Under the Pennsylvania Probate, Estate and Fiduciary code the Pennsylvania Department of Revenue is an interested party in any orphan’s court proceeding. Therefore your attorney must get written consent from the Pennsylvania Department of Revenue regarding the proposed allocation since its interests will be adversely affected by the amount allocated to the wrongful death action.

Survival Actions are valued at the decedent’s date of death for Pennsylvania Inheritance tax purposes. Any unpaid Inheritance tax is due within thirty days after the estate receives the proceeds. If there is any tax due beyond thirty days the Pennsylvania Department of Revenue begins charging interest on the unpaid balance which is currently 6%.

Contact Gregory J. Spadea

If you have a question about a wrongful death action or survival action please contact Spadea & Associates, LLC online or at 610-521-0604, located in Ridley Park, Pennsylvania.

Filed Under: Estate Planning, Tax Law Tagged With: , , , , , , , , , , ,

What Business Expenses Are Deductible?

July 31, 2014 by

Coffee cup and tax forms

If you are a self-employed sole proprietor or operate an LLC taxed as an S-corporation, any expense that your business incurs that is ordinary and necessary is deductible under Section 162 of the Internal Revenue Code. Therefore, list the total spent on each of the expense categories listed below:

  • Accounting, legal and professional fees;
  • Advertising;
  • Car expense – indicate total annual miles driven, then break out total annual business miles plus parking and tolls including business log with date, miles driven, business purpose and destination or
    total annual miles driven, actual fuel invoices, auto insurance, repairs and total miles driven and total annual business miles plus parking & tolls;
  • Fixed Assets – If you bought a vehicle, computer, equipment, office furniture or placed it in service during the tax year, even if you already owned it. Also provide a copy of the purchase invoice so the total cost can be expensed it under IRC Sec. 179;
  • W-3 – Salaries that your company paid to others. List officer and shareholder salary separately;
  • Employer share of employment taxes like FICA and FUTA;
  • Commissions or fees paid to other contractors. Have them fill in form W-9 if they were not incorporated so a 1099 can be issued by February 1;
  • If you already issued them a 1099, please provide the 1096 showing total independent contractors paid.
  • Professional Liability Insurance, Workmans Compensation Insurance and Health insurance;
  • Office Supplies;
  • Materials or Purchase of inventory for resale;
  • Travel, Hotel, Airfare and Car Rental;
  • Meals – keep track of date, place, person entertained and business purpose. If you do not have a digital calendar (such as Outlook or Google Calendar) then you need a receipt for everything If you have a digital calendar then you only need receipt if you pay more than $75.00;
  • Telephone including local, long distance, fax, land lines and mobile;
  • DSL, cable and internet charges;
  • Postage including shipping costs like Fed Ex and UPS;
  • Continuing education and business seminars and conferences;
  • Interest expense paid on business loans and provide year end balances;
  • Rent for office space or equipment;
  • Utilities like electricity, fuel oil, water or gas.
  • Prior year PA franchise (Capital Stock) tax from Page 2 of the PA RCT-101;
  • Prior Year Local Income Tax paid;
  • Total State sales tax paid if you included it in gross sales revenue.

Never pay any personal expenses from your business bank account. Instead take draws from your business account and transfer money to your personal account and pay the personal bills directly from your personal account. Contact Spadea & Associates, LLC at 610-521-0604, if you have any questions or need your tax returns prepared.

Filed Under: Tax Law Tagged With: , , , , , , ,

Bail Requirements in Pennsylvania

July 29, 2014 by

Money and a gavel

If you get arrested please remember my silence is golden rule – do not give any statements or speak to anyone without your attorney present. Do not even discuss the facts of the case over the phone with your family, since most conversations in a correctional facility are recorded. Do not apologize, express regret or anything that makes you sound guilty.

It normally takes 24 to 48 hours for the District Justice in the town you were arrested in to set bail. Bail will be based on the severity of the crime, the number of counts and if this is your first offense. If the District Justice reviews all the factors above and finds that you have no criminal record and you are neither a flight risk nor a danger to the community, the District Justice may release you on a personal recognizance bond. That means you are released on your signature.

The specific purpose of a bond is to assure that you appear at court and answer the charges. A District Justice may consider “the nature and circumstances of the charges, the weight of the evidence, the history and characteristics of the putative offender and the danger to the community.” U.S. v. Salerno, 481 U.S. 739 (1987). Prior criminal history and your personal characteristics are the most important factors the District Justice uses to set the bail amount. Your prior criminal history is going to involve anything you have ever been arrested for. It doesn’t matter if you were a juvenile or if it happened in another state. The District Justice can review anything that may help in determining if you are a danger to the community. When examining the characteristics of a defendant, the judge will want to know if you have a job, and how long have you been working for that employer. Do you own a home or rent? Are you married? Do you have any children? Where did you go to high school? What are your ties to the community? In other words, how much skin do you have in the game and how much will you lose if you decide to run? The judge will weigh all these factors to determine how high the bond will be. Obviously, the more serious the crime, the higher the bond.

You may not be entitled to bail if you are already on probation or parole for another offense. Probation is court supervision in lieu of incarceration. Parole is early release from prison for good behavior. In both cases, committing a new offense is considered a new violation. Under these conditions you may be given a bond on the new violation but may be held with no bond on the old offense since you violated the condition s of your probation or parole. However, your lawyer may be able to persuade the District Justice for a bond on the old case based on your specific facts and circumstances.

Immigration status is another factor that may affect your ability to get a bond. If you are not a U.S. citizen, Immigration and Customs Enforcement may place a detainer on you until your case is adjudicated. This includes legal permanent residents who are in the United States with a valid visa or green card. If you are arrested or have any questions about bail, please call Gregory J. Spadea at 610-521-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Filed Under: Criminal Law Tagged With: , ,

Avoiding Intent to Distribute Mandatory Minimum by Pleading Simple Drug Possession in Pennsylvania

July 21, 2014 by

Fingerprinted due to a drug arrest

Many individuals believe that to be convicted of a crime involving illegal drugs, weapons, or any other type of contraband a person must actually possess the item on their person, which is simply not the case. In fact actual possession is not a requirement for a conviction. The prosecution can meet its burden of proof of guilt beyond a reasonable doubt, based on the concept of constructive possession. While constructive and actual possessions are very different, a person is subject to the same criminal penalties if they are convicted including mandatory minimum sentences.

Constructive possession requires that the prosecution show that (1) the individual had the power to exercise control over the item and (2) the individual had the intent to do so. While the mere possession of an item in the area where an individual is arrested is not sufficient, the prosecution can use other factors which could lead to a conviction. For example, items found in an individual’s trunk can be problematic for a defense attorney if the car is registered to the individual or the prosecution can show that the individual was the exclusive user of the car.

The same rule would apply to apartments, bedrooms, or living areas. Evidence helpful to the defense would be equal access or control to the areas in question. However, equal access such as multiple roommates having keys to the apartment is a double edged sword as law enforcement can bring charges against every roommate who had access to the illegal drug. While the mere presence of an illegal item is not enough to convict a person, your defense attorney must make that argument and persuade a judge or jury.

It is important to keep in mind, however, that even if a person is found to constructively possess any illegal drugs the weight itself is not enough to trigger a mandatory minimum sentence. The prosecution must still establish intent to distribute the items. Therefore prosecutors try to focus on the item’s packaging and other paraphernalia found near the items or on the individual’s area of immediate control. However, there is a substantial difference between a conviction for drug distribution and simple possession. In Pennsylvania, simple possession is a misdemeanor whereas intent to distribute is a felony with a mandatory minimum sentence.

Since simple drug possession is a misdemeanor, it is possible to qualify for an intervention program like Veterans Court, Drug Court, Home Confinement or the Accelerated Rehabilitative Disposition Program if it is your first offense and other factors.

If you are arrested for possession or on any drug related charge, please contact Gregory J. Spadea online or at 610-521-0604, of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Filed Under: Criminal Law Tagged With: , , ,

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