Felony Convictions — Pennsylvania Drug Act Cases — Professional License Revocation, Suspension, and Reinstatementts

A series of recent cases have just been decided that address automatic suspensions and revocations of health care professional’s licenses (and thus the time period after which reinstatement is possible). These are very important decisions effecting every professional confronted with criminal charges, to what charges they should not plead guilty, and the collateral consequences of a felony conviction.

The first case was decided in 2014. That case is Packer v. Bureau of Professional and Occupational Affairs, Department of State, State Board of Nursing, 99 A.3d 965 (Pa. Cmwlth. 2014), petition for allowance of appeal denied, 109 A.3d 680 (Pa. 2015). The second case is McGrath v. Bureau of Prof’l & Occupational Affairs, 2016 Pa. Commw. LEXIS 367 (Commw. Ct. Aug. 24, 2016). McGrath reverses Packer, discussing more in depth the 1985 law that amended the Nursing Act to provide for automatic license suspensions and 10 year reinstatement periods based upon felony Drug Act convictions. The drug Act is found 35 P.S. § 780-113(a)(1-32).

Only felony criminal charges under the Drug Act, 35 P.S. 780-113(a)(1-32), trigger these cases. If a professional is convicted of a felony under the Drug Act, Section 14 of the Nursing Act (the “Act”) becomes effective, thereby allowing the Board to institute an automatic license suspension and/or revocations.  Section 14 of the Act states the Board has the discretion to refuse, suspend, or revoke any license if the Nurse is, among other things, convicted of a Drug Act violation. Section 15 of the Law addresses the procedures for suspensions, revocations, and reinstatement of licenses following a hearing before the Board:

All suspensions and revocations shall be made only in accordance with the regulations of the Board, and only by majority vote of the members of the Board after a full and fair hearing before the Board. All actions of the Board shall be taken subject to the right of notice, hearing and adjudication, and the right of appeal therefrom . . . . The Board, by majority action and in accordance with its regulations, may reissue any license which has been suspended. If a license has been revoked, the Board can reissue a license only in accordance with section 15.2. (Emphasis added.)

Section 15.1(b) of the Law, however, which was added in 1985, mandates that the Board automatically suspend licenses under certain circumstances prior to a hearing. Of relevance to the circumstance now before the Court, Section 15.1(b) of the Law provides, in part:

(b) A license issued under this act shall automatically be suspended upon the legal commitment to an institution because of mental incompetency from any cause . . . , conviction of a felony under the [Drug Act,] or conviction of an offense under the laws of another jurisdiction, which, if committed in Pennsylvania, would be a felony under [the Drug Act]. . . . Automatic suspension under this subsection shall not be stayed pending any appeal of a conviction. Restoration of such license shall be made as hereinafter provided in the case of revocation or suspension of such license.(Emphasis added.)

Section 15.2 of the Law, which follows immediately after Section 15.1(b), provides:

Unless ordered to do so by Commonwealth Court or an appeal therefrom, the Board shall not reinstate the license of a person to practice nursing . . . which has been revoked. Any person whose license has been revoked may reapply for a license, after a period of at least five (5) years, but must meet all of the licensing qualifications of this act for the license applied for, to include the examination requirement, if he or she desires to practice at any time after such revocation.All suspensions and revocations shall be made only in accordance with the regulations of the Board, and only by majority vote of the members of the Board after a full and fair hearing before the Board. All actions of the Board shall be taken subject to the right of notice, hearing and adjudication, and the right of appeal therefrom . . . . The Board, by majority action and in accordance with its regulations, may reissue any license which has been suspended. If a license has been revoked, the Board can reissue a license only in accordance with section 15.2.

These cases typically involve nurses convicted of drug offenses or prescription fraud matter.  While in jail or out of a job, the Board prosecutors (through either annual renewal, self-reporting, or automatic fingerprint notification upon arrest) learn of the drug charges and file a Rule to Show Cause with the Board seeking an automatic suspension without prior notice to the licensee. I typically see the Motion and the Order of Suspension that allows the licensee to respond to the Petition after the Board issues the automatic suspension and issues with Order with a right to a hearing on limited basis.

The final Order of Suspension language is the issue in these cases.  The suspension order states the licensee is ineligible for reinstatement for a 10 year time period. The Packer and McGrath claim that because there are no administrative regulations addressing implementation of the new automatic suspension law that the Board did not have the authority to institute in effective a mandatory 10 year license suspension. More importantly, the nurses objected to the Board action instituting a 10 year mandatory suspension versus consent agreements that offered a reduced reinstatement time period to 3 years. After reviewing much of the arguments, the court in Packer, which affirmed that new interpretation stating:

The Law is structured in a manner that affords the Board discretion (through decision making or regulation) to suspend or revoke a license under certain circumstances (Section 14 of the Law) and removes discretion from the Board in other circumstances by mandating that the Board suspend a license if certain circumstances exist (Section 15.1(b) of the Law). It would appear that the General Assembly, in mandating license suspensions under Section 15.1(b) for certain drug convictions and legal commitments based on mental incompetency, viewed those circumstances to be sufficiently serious such that it removed from the Board its discretion not to suspend or revoke a license. In other words, the General Assembly viewed those circumstances to be so serious that suspension is mandatory and automatic. Given that the General Assembly took measures to remove discretion from the Board by legislating automatic suspension, it would seem unlikely that the General Assembly would then allow the Board to exercise discretion and lift an automatic suspension at any time. Rather, it is much more likely that the General Assembly contemplated that an automatic suspension would remain in effect for at least some minimal period of time, which is consistent with the Board’s interpretation of the Law.

However, in McGrath the entire Commonwealth Court reviews Packer and the legislative process, overruling Packer, stating:

Because we conclude that Packer’s punitive interpretation of the ambiguous statutory provisions of the Nursing Law violates the principle that ambiguities in penal statutes must be strictly construed against the government, Section 1928(b)(1) of the Statutory Construction Act of 1972 (Statutory Construction Act), 1 Pa. C.S. § 1928(b)(1); Richards v. Pennsylvania Board of Probation and Parole, 20 A.3d 596, 600 (Pa. Cmwlth. 2011) (en banc) (discussing the common law rule of lenity), we overrule Packer. Therefore, we reverse the Board’s Order to the extent that it mandates a 10-year suspension of Ms. McGrath’s license and requires, based on Packer, Ms. McGrath to reapply for a new license under Section 6(c)(1) of the Nursing Law, rather than request reissuance of her suspended license pursuant to Section 15 of the Nursing Law, 63 P.S. §§ 216(c)(1), 225.

This effectively eliminates 7 years of an automatic suspension that became a revocation requiring 10 years prior to becoming eligible for reinstatement of a nursing license. This is huge.  Importantly, the court sets forth a statutory history of the Board’s apparent interpretation and use of its automatic license suspicion process as

Previously, the Board interpreted this statutory language as permitting it to consider each automatic license suspension on a case-by-case basis to determine the length of the suspension and to approve consent decrees setting forth the term of the suspension. Packer, 99 A.3d at 967, 970. The Board’s interpretation relied on Section 15, which gives the Board discretion in imposing and reviewing license suspensions under the Nursing Law. 63 P.S. § 225. However, in 2013, the Board changed its interpretation of these provisions without, as observed in Packer, engaging in either formal interpretation, i.e., promulgating regulations, or informal interpretation, i.e., issuing policy guidelines, regarding its new interpretation. Packer, 99 A.3d at 969-71. Rather, the Board “altered its application of the [Nursing] Law based upon a directive from its parent agency, the Department of State [(Department)], Bureau of Professional and Occupational Affairs [(Bureau)].” Id. at 970. According to the Board, “the [Bureau] made the determination that the language in all the acts with automatic suspension provisions authorized the boards to impose a year automatic suspension and that all healthcare providers should be treated equally.” Id. at 970 n.10 (internal quotation omitted). Thus, “until . . . the Bureau or the Department issued an unidentified directive in 2013 to all health profession boards” indicating that “the Board (and apparently prosecutors in the Bureau)” had to apply Sections 15.1 and 15.2 in a non-discretionary manner, the Board and the Bureau’s prosecutors interpreted the statutory language as authorizing the exercise of discretion in determining the length of a suspension issued pursuant to Section 15.1(b). Packer, 99 A.3d at 970.

After discussing the legal and legislative process the McGrath Court makes the following remarkable statement,

The impact of Packer on the individuals affected is to preclude them from engaging in their profession for 10 years before the Board has the authority to even review their requests to reissue their suspended licenses. It prevents the Board from exercising its discretion, as it does in all other suspensions, to determine whether the Commonwealth’s citizens will be harmed by the reinstatement of a particular nurse. Such a result prevents individuals from earning their livelihood during that time period, which is particularly important because, based on the ambiguousness of Section 15.1(b) and 15.2 of the Nursing Law, licensed individuals have no guidance regarding what actions result in what punishment under the Nursing Law. We believe that our continuing reliance on Packer, therefore, creates [35] a “great injustice or injury” to those individuals.

This is the first time I have read a court case worried about a convicted felon professional’s ability to secure employment. This Commonwealth Court decision is finally taking a step to curtailing the conservative legislature from stopping hard working professionals who secured a license from every practicing their profession again. The court does not state suspension or revocation of the license is improper. It does state, however, that these individuals should be allowed to try to get their licenses back sooner, through hard work, and become working members of society again.  The Board has the discretion and the legislature can not take that away from them.

This is a momentous decision pushing back the General Assembly from issuing mandates to Pennsylvania’s  licensing boards. The legislature has previously given the Boards extensive discretion in deciding cases. The courts have routinely enforced this discretionary authority. The en banc Commonwealth Court is now telling the legislature these mandatory pronouncements are unnecessary and constitute legislative overreach. As well, the Court is telling the legislature in these hard economic times, let the professionals go back to work.

The import of these cases can not be understated. First and foremost, have proper counsel in any criminal matter involving the Drug Act violation so that your professional license is able to be reinstated at the appropriate time. Thereafter, make sure you properly respond to all license disciplinary action petitions. The Boards attempt to unilaterally interpret its governing law and regulations is many times wrong. Appellate review is proper. Courts really do objectively look at the evidence below and the legal actions taken by the Board. These cases involved convicted felons who were professionals and they still won their case. Call me to discuss these important cases and their affect on you license.

Pennsylvania’s New Prescription Drug Monitoring Program

Pennsylvania’s prescription drug monitoring program is now active on the State Department of Health website.  As of June 24, 2016, all Schedule II-V dispensed prescriptions must be reported to the PDMP system within 72 hours of being dispensed. Click here for more information.  The laws requirements place additional record keeping and professional conduct and corresponding responsibility requirements on Pharmacists, doctors, and physicians’ assistant.

With regard to Pharmacists, I have extensively blogged on Pharmacists’ corresponding responsibility. As per Act 191, The new prescription monitoring database reporting requirements establish Pharmacists legal responsibility of reporting any opiate dispensing to an individual who presents for lawful prescription. The linchpin to Act 191’s reporting responsibilities, Pharmacists reporting sets off a cascade of responsibilities to all other prescription providers. By this I mean medical practitioners are now required to check the prescription database which will contain pharmacy opiate prescription histories. This will preclude physicians in other pharmacist from dispensing multiple opiate prescriptions to drug seek patients.

The ABC-MAP Program is intended to increase the quality of patient care by giving prescribers and dispensers access to a patient’s prescription medication history through an electronic system that will alert medical professionals to potential dangers when making treatment determinations. This information may assist in the assessment and referral of treatment  programs, allowing patients to make educated and thoughtful health care decisions. Additionally, the system will aid regulatory and law enforcement agencies in the detection and
prevention of fraud, drug abuse and the criminal diversion of controlled substances.

Physicians writing prescriptions will now have to establish an office procedure to have their staff check the prescription database to insure their patients are not securing multiple prescriptions, schedule II or otherwise, from multiple providers.  The Pennsylvania Prescription Drug Monitoring Program (PA PDMP) system is a powerful new tool to help combat the opioid epidemic. With the PA PDMP system, prescribers will be able to easily look up patients’ controlled substance prescription history before prescribing or dispensing. That means no more guesswork.  Eighty percent of heroin users began their battle with drug use by abusing prescription medication. By using the PA PDMP system, you will play a key role in reducing opioid abuse and overdoses.

Dispensing practitioners are required to report Schedule II-V controlled substances they dispense to patients within 72 hours of dispensation. This requirement took also effect on June 24, 2016. A Dispensing Practitioner is a medical practitioner that stocks controlled substances and distributes the medication to a patient, who then leaves the facility and is responsible for administering the medication themselves. If you are a dispensing practitioner please visit the dispenser page for instructions on how to report to the new PDMP system.

Physicians or their staff positions who do not check the database will expose themselves to professional malpractice liability claims and professional conduct course of care disciplinary action. Physicians involved in heavy pain management practice or are engaged in treating post-surgery patients that require significant opioid prescriptions are required to check the database to insure there is no duplicity in the prescriptions written. It will be very easy to establish between the DEA prescription records, patient Medicaid/Medicare/private insurance billing payments for prescriptions, and the new prescription reporting database which physicians are not complying with their regulatory requirements and carelessly writing opiate prescriptions for the drug seeking patient. Unfortunately the drug addict the patient does not care about the medical professionals liability for professional conduct.

Please call me to discuss any contact by any professional Ford investigator regarding prescription drug martyring program lax is. Please call to discuss establishing a professional course of conduct in protocol in your medical practice for pharmacy to inshore compliance with the new regulations.

IP Addresses and an Expectation of Privacy — NIT and Government Malware

My criminal practice recently focused on a significant case involving IP addresses and privacy rights. The case involves government use of online surreptitious surveillance methods, an NIT, in a criminal investigation to determine a potential defendant’s Internet Protocol (“IP”) address, and thus home address, to subsequently serve criminal subpoenas and search warrants on that home address. The government maintains in these types of investigations potential criminal defendants have no expectation of privacy in their IP address. However, various criminal statutes, regulatory provisions, and sentencing guidelines reflect Congress’ intent to provide a national reasonable expectation of privacy rights in “IP” addresses and thus location data. This blog shall identify several federal statutes that establish Congressional privacy rights in IP or location address data.

In one criminal statute, Congress makes it illegal under 18 U.S.C. § 1030(5) to “knowingly cause[s] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer.” Subsection 1030(f) “does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States.” Congress’ requirement of a warrant in subsection (f), “prior authorization” through a judicially approved legal procedure and probable cause, indicates the privacy and constitutional rights that are applicable to these searches, when the take place in searching a defendant’s home pre-arrest.

In these cases, the Government maintains defendants do not have a reasonable expectation of privacy in their IP location data. They are wrong. The government thinks it is OK to hack private individual’s computers through a code or command sent to that computer. Courts have held these types of investigations are searches, requiring an authorized warrant, and thus judicial oversight. Required judicial oversight is Congressional recognition of privacy rights in location data.

This position is supported by a recent national criminal case. In 2013 various Chinese state co-conspirators were indicted for violating 18 U.S.C. §§ 1028 and 1030, et seq. At paragraphs 15, 18, and 43 of the indictment, the Government alleges these officials engaged in acts constituting violations of 18 U.S.C. § 1028(a)(1), 18 U.S.C. §§ 1028A(b), 1028A(c)(4), and 2. The blatant and outrageous criminal conduct at paragraphs 52-53 includes illegally taking personal identification information of another, without authorization. The Government equates stealing personal IP address and location data with violations of the United States Code.

The United States Sentencing Guidelines include a specific guideline provision devoted to theft of personal privacy data. For sentencing purposes, confidential information under 18 U.S.C. § 1039(h)(1)(A) includes personal location data. U.S.S.G. §2H3.1 addresses the manner in which federal courts are to assess offense levels and sentencing enhancements for violations of 18 U.S.C. § 1039.

In the context of active location data provided through cellular telephone surveillance capabilities, there has been extensive litigation over the definition of Other Information that is generated when utilizing a cellular telephone. Congress defines Other Information as historical and real time “cell site location information” (“CSLI”), which discloses location data of persons utilizing cellular telephones. In In re Application, 620 F.3d 304 (3d Cir. 2010), the Third Circuit addresses probable cause requirements in warrants seeking this information based upon the privacy issues attached thereto. See (http://www.phila-criminal-lawyer.com/Publications/005061214-Hark.pdf).

In 1997 Congress passed amendments to the Communications Act of 1934. Congress, and the FCC, through enabling regulations, passed numerous rules identifying and then delineating the exact nature of customers’ privacy rights to their personal information and telecommunication companies’ duty of protecting such from commercial exploitation. 47 U.S.C. § 222 was added to the Communications Act by the Telecommunications Act of 1996. Section 222 of the Act establishes a duty of every telecommunications carrier to protect the confidentiality of customer proprietary network information (” CPNI”). CPNI is “information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship.” 47 U.S.C. § 501 makes it a crime to knowingly and intentionally violate (disclose this information) the Act.

The Privacy Act of 1974 addresses privacy of federal employees’ personal information. “No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains [subject to 12 exceptions].” 5 U.S.C. § 552 a(b). 32 CFR 505.7 – relating to Freedom of Information Act disclosures of Federal Employees personal information states at subsection (e) (1) states “The release of home addresses and home telephone numbers normally is prohibited.”

Release of personal location information is normally considered a clearly “unwarranted invasion” of personal privacy and is exempt from mandatory release under the FOIA. 32 CFR § 505.7(d)(1)(vi) identifies home addresses as personal information not to be release without prior consent of the individual. There is an entire Department of Justice Overview of this Act on its website. The DOJ has its own Chief Privacy and Civil Liberties Officer enforcing provisions of the Privacy Act on Federal employees and agencies. https://www.justice.gov/opcl/overview-privacy-act-1974-2015-edition.

Congress has established privacy obligations on the private sector through legislation affecting the financial services, health care, government, and Internet sectors. Federal regulations issued to carry out federal privacy laws impose obligations on covered entities to implement information security programs to protect unauthorized dissemination of private individual’s personal information. Protected personal information (“PPI”) in each service field typically includes name, address (location) date of birth, and social security numbers of the persons affected. A short list of CFR sections addressing PPI includes 32 CFR 701.115, 32 CFR 505.7, and 36 CFR 902.56.

In light of numerous federal statutes criminalizing any disclosure of personal privacy information (address location data) of both private and government employees, every defendant or target has a reasonable expectation of privacy in their location data, to which a legal and proper warrant is required for the Government to discover such information.

Please call me to discuss your case.

Network Investigative Techniques, Federal Criminal Search Tools, and Your 4Th Amendment Rights

My involvement for twenty five years in federal criminal matters has resulted in me handing many different Motions to Suppress. Recently, in the context of Federal internet criminal investigations, I have gained extensive experience fighting the new federal investigative techniques, (“NIT”) that reveal personal identity and location data.

Once such case involves the Government’s use of an NIT or Network Investigative Technique. The NIT is a malware program placed on a computer server that launches itself into each computer accessing that server to engage in alleged criminal activity.  The accessing computers utilize the TOR network for anonymity purposes.  Upon accessing specific areas of the server, the malware on the server then sends to the activating computer (in another state typically inside a person’s home) a code instruction to search, secure, and transmit back to the server the user’s IP address. Thereafter, search warrants secure the personal identification and location information of the accessing computer owner.

I have filed motions to suppress this search technique.  The Government bears the burden of showing, under the Fourth Amendment, the reasonableness of each individual act constituting a search or seizure. The burden of proof is by a preponderance of the evidence. The court is presented with the choice of two tracks of analysis. Does the court choose to evaluate these defendants’ constitutional rights affected by the NIT Warrant under the:
1) Reasonable expectation of privacy test set forth in United States v. Katz, 389 U.S. 347 (1967); or
2) The property-based Fourth Amendment test set forth in United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012). There, the court exclusively applied the property-based approach to determine whether a search occurs when the Government physically occupies private property of another for the purposes obtaining information. This approach keeps easy cases easy.

  1. PROPERTY-BASED FOURTH AMENDMENT PROTECTIONS

The court must choose the property-based search analysis set forth in JonesJones holds that surveillance on a person through electronic means without a warrant constitutes a trespass and may be an unconstitutional invasion of privacy. 132 S.Ct. at 953–54. Even though Jones involved warrantless global positioning system (“GPS”) searching, the analysis applies because the NIT warrant is illegal. Jones makes clear the constitutional nature of computer searches, especially in the privacy of one’s home.

Florida v. Jardines, 569 U.S. 1 (2013), follows Jones’ property – based Fourth Amendment jurisprudence.  The Jardines court held that a warrantless dog sniffing through the front door of Jardines’ home constitutes an unconstitutional search of a constitutionally protected area.  In Jardines, as here, “the officers learn what they learned only by physically intruding on Jardines’ property to gather evidence.”  This search activity is enough to establish that a search occurred. These cases stand for the proposition that the “Fourth Amendment, at its very core, stands for the right of a man to retreat into his home and there be free from unreasonable Government intrusion.” Jardines, supra.

There is no evaluation or discussion of an expectation of privacy under the property-based Fourth Amendment jurisprudence after JonesJardines, 569 U.S. at *9.  The court recognizes a simplistic procedure.  If the Government goes on the property of another, (trespassing or not) it needs a warrant due to Fourth Amendment’s constitutional property rights. These NIT cases, the Government understood this legal necessity and secured the NIT warrant. However, the NIT warrant was illegal.

  1. The Constitutional Character of the NIT Search is Per Se Prejudicial

In today’s society, disclosing an Internet Protocol (“IP”) address is, in essence, disclosing protected location privacy. Similar to Jones‘ GPS coordinates in tracking devices or cellular telephones, location data reveals a great deal about a person.  As such, cases discussing governmental activity and search techniques that reveal a defendant/target’s location are relevant to the court’s analysis of prejudice and the constitutional level of protections in these motions to suppress.

United States v. Maynard, 615 F.3d 544, 562 (D. C. Cir. 2010), affirmed, United States v. Jones, supra, stands for this proposition. Analogizing IP address location data to cellular telephones, Justice Alito writes that “society’s expectations have been that police agency and others will not secretly monitor and catalog every single movement of an individual’s car for a very long period of time.” Jones at 945.

Thereafter, in Riley v. California, ___ U.S. ___, 134 S. Ct. 2473 (2014), the Supreme Court following Jones, specifically references location privacy as a reason to limit police searches of cellular telephones incident to arrest.  The Riley Court determines that due to the wealth of information electronic devices “contain and all they may reveal, they hold for many Americans the privacies of life.” Riley at 2494–95.

Riley even states, “The fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely. Not every search “is acceptable solely because a person is in custody.” Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 26). To the contrary, when “privacy-related concerns are weighty enough” a “search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.” Ibid. One such example, of course, is Chimel. Chimel refused to “characteriz[e] the invasion of privacy that results from a top-to-bottom search of a man’s house as ‘minor.’” 395 U. S., at 766–767, n. 12. Because a search of the arrestee’s entire house was a substantial invasion beyond the arrest itself, the Court concluded that a warrant was required.” Riley, supra.  Cellular telephones and home computers are simultaneously offices and personal diaries containing the most intimate details of our lives. United States v. Cotterman, 709 F. 3d. 952, 964 (9th Cir.. 2013).  Several circuits recognize these facts, uniformly requiring a warrant prior to searching a computer. United States v. Paton, 573F.3-D 859 (9th Cir. 2009); United States v. Andrus, 483 F.3d 711, 718 (10th Cir. 2007).

The Eastern District of Pennsylvania addresses surveillance issues of GPS warrants in United States v. Ortiz, 878 F. Supp. 2d. 515 (E.D.Pa. 2012). In the Court’s discussion of location data and the privacy issues, it concludes that the Government’s warrantless surveillance technique “produces location data while inside the garage of a home or other Fourth Amendment protected place”, potentially yielding information that the Supreme Court specifically found in United States v. Karo, 468 U.S. 705 (1984), is protected by the Fourth Amendment.

An unreasonable search within the meaning of the Fourth Amendment occurs where, without a warrant, the Government surreptitiously employs an electronic device to obtain information it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually    located at a specific time in the private residence and is in the possession of the person or persons whose residence is being watched.  Even if visual surveillance has revealed that the article to which the beeper is attached  has entered the house, the later monitoring not only verifies the officers about observations but also establishes that the article remains on the premises. United States v. Karo 468 US at 715.

Ortiz at ___.

Review of these controlling Supreme Court cases and their emphasis on the data produced through cutting edge surveillance techniques (including an NIT) on electronic mediums (cellular telephones and home computers) render’s applicable the Fourth Amendment privacy protections afforded to Jones, Jardines, and Riley.

  1. Expectation of Privacy in an IP address

An expectation of privacy in location data that IP addresses reveal is both objectively and subjectively reasonable based upon people using the TOR network and how the Government secures those person’s IP address.  The Government typically argues that because these defendants may have initially disseminated their IP address through an internet service provider (“ISP”), they have no expectation of privacy in an IP address.  This is factually wrong.

  1. Third Party Doctrine

The case of Smith v. Maryland, 442 U.S. 735 (1979), addresses warrantless access to information possessed by a third-party. This is the third-party doctrine set forth in United States v. Jones, 132 S. Ct. at 957.  Third party dissemination and reduced expectation of privacy has no applicability here because of the NIT’s mechanism of search and how Government secures that defendant’s IP address from his computer, not a third-party ISP. The court requires factual testimony on this issue.

United States v. Stanley, 753 F.3d 114 (3d. Cir. 2014), specifically addresses the no expectation of privacy of IP addresses when a defendant uses his neighbor’s wireless router without permission. The Government found Stanley’s computer’s wireless signal piggy backing illegally on his neighbor’s unsecured wireless router. Such unauthorized use of the neighbor’s IP address through which a third-party provider secures individual media access control (“MAC”) addresses of moochers of other people’s wireless routers. The Court found this fact alone reveals that Stanley had no expectation of privacy in his IP or MAC address. Stanley‘s finding that there is not an expectation of privacy in an IP address is not binding here as such is not the basis of the Government’s investigation in this case.

These defendants’ IP addresses are not disclosed anywhere throughout the use of the TOR or his third party ISP.  Declaration, Special Agent Daniel Alfin, document no. 74-1, filed June 1, 2016, U.S. v. Matish, 4:16-cr-00016, attached hereto at Exhibit 3.  This declaration makes clear that the NIT did not secure any other defendant’s, IP address from a third-party ISP or through the TOR network. Rather, the NIT searched for and secured the accessor’s IP address SOLELY from their own computer programming.

The NIT transferred directly to the Government from that defendant’s computer, his IP address not through the ISP.  The Government must acknowledge this fact in response to court’s inquiry of how the NIT worked in Matish. The Government bluntly concedes that but for the IP address, it could not locate these defendants.  These IP address would have been unknown.  The accessing defendants’ personal location data is collected from the accessing computer. See Exhibit 3, Alfins’ declaration, ¶¶ 22 and 25; Exhibit 2, Alfin’s May 19, 2016 Testimony, page 13-17, 21–26.  Alfin makes clear this factual point.

Once put to the test in a Motion to Compel Discovery, Alfin’s testimony is in stark contrast to the NIT Affiant Special Agent Douglas Macfarlane’s affidavit stating that the NIT instructions “are designed to cause the user’s ‘activating’ computer to transmit certain information to a computer controlled by or known to the government,” including the “activating” computer’s actual IP address. See Affidavit in Support of Application for Search Warrant, at ¶ 33.   The NIT would deploy “each time that any user or administrator log[ged] into Playpen by entering a username and password.” (Id., Ex. 1 ¶ 36.) The FBI could then link a username and its corresponding activity on the site with an IP address. (Id., Ex. 1 ¶ 37.)  This is factually wrong when compared to Alfin’s declaration and testimony regarding how the NIT worked its search functions performed when an accessing computer logged onto the Playpen Website.

The Government was less than candid with the tribunal by not advising it that the NIT would send a computer search and seizure program to the user’s home computer and then send back to the FBI computer an IP address.  The FBI was not linking a username and corresponding activity to an IP address. Further, the record is unclear if the Government told  the Magistrate that it was concurrently filing a Title III warrant.  This would have disclosed both its strategic use of a magistrate to issue the NIT Warrant and its seizure gathering mechanism of electronic information for which it required Article III judicial authorization.

The NIT that accessed these defendants’ computers operates in the computer memory locations, retrieved information, and then leaves the computer. The same situation is presented when the Government comes into your house, searches your house, and then leaves. The Government is required to advise you of the search (giving you the search warrant) and then leaves you an inventory of items seized. None of that was done in this occasion.  Jones, Riley, Jardines affirm this constitutional requirement to which Rule 41(B) codifies into a procedure implementing the Fourth Amendment’s warrant provision.

As such, the question is not whether there’s a reasonable expectation of privacy in an Internet IP address (as Werdene concluded there was not), but does a person have a reasonable expectation of privacy in the area where the search (his home) occurred and in the information seized (his location).   Rakas v. Illinois, 439 U.S. 128 (1978). Darby and Matish conclude yes.  This court must choose the property-based Fourth Amendment analysis and afford these deendants the constitutional protections because the NIT searches a home-based computer.

Call me to discuss your NIT, Playpen based federal government internet criminal matter.

Client Represention Begins with Hearing Preparation

Throughout the course of every licensing case many issues arise. The primary focus of addressing important legal issues in court is through having appropriate and credible evidence before trial. Presenting the best evidence in a hearing, upon which an appellate court may review the discretionary conduct of the licensing board, is paramount to effective representation of every client.

Due Process requires every hearing officer to give great latitude to each licensee/respondents’ counsel in the choice, character, and quantity of evidence presented. I begin accumulating trial evidence immediately upon being hired. Thereafter, I routinely contact clients several months before a hearing for additional references, job evaluations, and confirm witness availability and travel plans to court.

Much of my trial organization takes place before and after client meetings through constant email contact. Sufficient lead time is provided to every client whose hearing is going to take place. Every document request to a client is based upon individual case facts, evidence issues, and trial strategy. Each piece of evidence becomes a small piece of the larger picture that I want to present in court.

Once witnesses are confirmed, case theory, client meetings and hearing preparation begins with earnest. Job evaluation, work related emails, and criminal discovery documents flesh out case theory and provide background evidence for the hearing officer’s decision. Meeting with clients and family provides insight into the character of every licensee. Grown children, spouses, co-employees, and supervisors provide unique character references.

Disciplinary actions are typically based upon criminal convictions, employment conduct, professional competence claims, or impairment issues. Each requires different preparation. Through the years I have developed extensive emails seeking appropriate documents for every type of trial. Attention to detail by both counsel and the client is paramount to effective representation.

All trial preparation leads to a cohesive presentation in court. The trial picture presented allows hearing officers to render a balanced decision based upon admissible facts. A thorough record and fact-based credibility decision eliminates much discretion from the licensing board reviewing the trial court decision. Please call me to discuss your disciplinary action.

Pennsylvania’s Professional License Disciplinary Enforcement Environment

These are tough times.  I am receiving more calls then ever.  The issues range from PHMP and PNAP case worker treatment, prosecution enforcement actions, to delays in decisions on cases.  More than ever, experienced counsel is necessary to help navigate the treacherous waters of Pennsylvania’s over reaching, over bearing, and heightened enforcement environment.

The first set of calls I receive focus on the lack of information PHMP case workers provide when discussing the proposed monitoring agreements.  These case workers are not attorneys.  They are also not your friends.  They do not care about you.

They do not have authority or time to explain the intricacies or legal ramifications of signing the PHMP/PNAP/SARPH contract.  More importantly, again, they do not care.  The new file that has just been dropped on their desk has your name on it.  All they want to do is be done with it.  They are overworked, underpaid, and have too much legal power and responsibility over too many people to do their job fairly, correctly, or with any sense of compassion.

Their goal is to get you to sign the contract, trick you into agreeing to terms of an enforcement process of which they know you probably will not be able to perform, get you to violate the terms, and then close your file so it can be referred back to the prosecutor to file revocation proceedings.   These case workers are merely cogs in a  wheel enforcing regulatory compliance on all program participants.  They have no authority to change the terms and conditions of the program.  They don’t care how much it costs, that you can not afford it, can’t work in the beginning, have kids, have a family, have a life.  DO NOT SIGN ANYTHING UNTIL WE TALK.

The second set of calls regards attorneys who do not know the collateral consequences of criminal matters on the professional’s license and the impairment issues.  DUI charges are the typical example.  Under the new regulations, nurses must report criminal charges within 30 days of the arrest.  Under the DUI ARD process, the applicant must go to a CRN evaluation and may try to get in patient treatment to avoid jail if they are not ARD eligible.

This process conflicts with the new enforcement mechanism in every case of compelling nurses to go to Mental and Physical evaluations (see my other blogs in the archives) with the DUI pending.  Part of the Mental and Physical evaluation process is providing all mental and medical treatment records.  The newly created medical record with diagnosis and treatment recommendations, you just created by going to the in-patient program to avoid jail, from non-experts now must be provided to the Board’s expert.

Going to treatment to save jail time impacts the professional license.  Talking too much at the CRN evaluation impacts your processional license.  Hiring the wrong attorney to handle your DUI to save money on that part of the case will impact your processional license.  Too many times I have to clean up the mess made by good intending but uninformed attorneys.

DO NOT HIRE THE WRONG ATTORNEY FOR YOUR DUI OR MENTAL AND PHYSICAL EVALUATION.  IF THEY CAN NOT ANSWER PHMP OR PNAP QUESTIONS — MEANING THEY DO NOT MAKE YOU FEEL CONFIDENT OF HOW TO HANDLE THE LICENSING ISSUES — CALL ME.

Lastly, questions regarding when will a decision be handed down, what to do next, and what does the decision in my case mean — have been cropping up.  Hearing officers are over whelmed. Enforcement actions are filed involving every licensing board for any professional with criminal charges, employment related investigations, and course of care cases.  Hearings are pushed out 30, 60, 90 days.  After a hearing, briefs should be submitted in almost every case, delaying formal decisions for months.  Once a proposed adjudication and order is filed, the board reviews the decision and must accept that decision.  This takes many more months.

Then implementation of the decision takes place.  Importantly, all the while, licensees are still practicing. These delays are not good but at a minimum, the licensee is still practicing and making money.

This process is harder on the applicants without a license or the individual whose lost their license and has filed for reinstatement.  The documents were request to be accumulated during this time are huge in securing timely reinstatement of any license.

However, the Boards can and do only go so fast.  That is why fighting the case from the outset to insure no license suspension or revocation, or not going into the program and fighting the case with a license is better than losing your license with either no attorney or the wrong attorney and being at any Board’s mercy of when they will reinstate your license.  CALL ME TO PROPERLY HANDLE YOUR LICENSE DISCIPLINARY ACTION.

Major US Supreme Court DUI Decision and Pennsylvania Licensees

On June 23 the United States Supreme Court decided  BIRCHFIELD v. NORTH DAKOTA, three consolidated cases addressing important substantive and procedural legal issues regarding driving under the influence (“DUI”) cases.  In each case, the North Dakota motorist, lawfully arrested or under investigation for drunk driving, was convicted of a separate crime or otherwise received an enhanced criminal penalty for refusing to submit to a warrantless blood test measuring the alcohol in their bloodstream.

All three state court cases results depended upon the proposition that criminal laws ordi­narily may not compel a motorist to give evidence against themselves in the form a blood sample or breath test unless a warrant authorizing such testing is issued by a magistrate.  The specific issue considered was how the search-incident-to-arrest doctrine applies to breath and blood tests incident to DUI arrests. The court ruled while compelled evidence from breath tests are constitutional based upon the limited inconvenience and invasion of privacy to the motorist, compelled blood tests are unconstitutional for those same reasons.

In Pennsylvania, 75 Pa C.S.A. § 1547 of the motor vehicle laws addresses motorists’ civil license suspension consequences for refusing to submit to a DUI investigation breath or blood test. Depending on how many refusals the operator of the car has previously engaged, a driver’s license suspension based upon a breath or blood test refusal starts at one year and may escalate. The court ruled that these civil collateral consequence license suspension for refusing the test remains constitutional. “Our prior opinions have referred approvingly to the gen­eral concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.”The Birchfield case did not question the constitutionality of those civil collateral consequence refusal laws, and the Supreme Court limited its ruling stating that “nothing should be read to cast doubt on them.”

In 2015 the Supreme Court ruled that the natural dissipation of alcohol from the bloodstream does not always constitute an exigency justifying the warrantless taking of a blood sample. That was the holding of Missouri v. McNeely, 569 U. S. ___, where the State of Mis­souri was seeking a per se rule that “whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circum­stances will necessarily exist because BAC evidence is inherently evanescent.”  This case set the stage for Birchfield, where the individual defendant’s objected to being criminally penalized for not submitting to the warrantless blood draw or were criminally penalized when the warrantless blood draw produced evidence that was used against them in trial.

Pennsylvania’s DUI statute, 75 Pa.C.S.A.§3802D, provides for enhanced criminal penalties for refusing to submit to a breath or blood test stemming from a DUI investigation. DUI offenders with multiple prior DUI convictions faced enhanced license suspensions and jail sentences based upon the same refusal. In Birchfield, after reviewing all of the prior case law regarding car stops, privacy concerns, and search incident to arrest case law, the court held that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.  Motorists can not be compelled criminally to give evidence against themselves without a warrant signed by an independent magistrate.
The court has finally drawn a constitutional line in the sand limiting the extent to which a state may utilize driving-on-our-roads informed consent laws to compel motorists to give evidence against themselves so the state may investigate and prosecute them for criminal conduct. In Pennsylvania, this will mean enhanced criminal penalties associated with refusing a blood test, not breathalyzer, in any criminal DUI prosecution may no longer be constitutionally permissible.  Please call to discuss your DUI charge, your medical or professional license issue and potential discipline on your license from stemming from your first or subsequent DUI.

Pennsylvania Criminal Expungement and the Pennsylvania Licensee

Expungements are major issue with every professional licensee.  Many licensees are involved in some type of criminal conduct that result in enrollment into Pennsylvania’s pretrial probation – Accelerated Rehabilitative Disposition –  program (ARD).  Some cases also involve Drug Court or Section 17 dismissals under Pennsylvania’s Drug Act. I field many telephone and Internet inquiries regarding criminal convictions and ARD results that require reporting to Pennsylvania licensing boards.  Reporting is either within 30 days of arrest (Nursing Board), 30 days of conviction, or enrollment in the ARD or Drug Court programs.

An issue has arisen regarding expunging dismissed criminal records from one’s Pennsylvania administrative licensing board record.  Typically, licensees who win their criminal cases seek to have those criminal records expunged at the earliest possible date. The expungement process is found under 18 Pa. C.S. § 9122. This Chapter is known as the Criminal History Record Information Act (“CHIRA”). This provision is part of the same statutory chapter, 18 Pa. C.S. § 9161(3), that renders admissible criminal convictions in administrative licensing proceedings. As such, the necessity of expunging criminal arrests that result in not guilty, dismissals or ARD is of key value to every Pennsylvania licensee. But for the criminal charges, there is no administrative disciplinary basis under CHIRA to commence a disciplinary process.
The problem, however, unlike other states, for example Ohio, is that Pennsylvania expungement rules do not specifically provide for an expungement of a criminal arrest record subsequently dismissed that became the basis for an administrative licensing disciplinary proceeding. Pennsylvania’s expungement process allows only for specific administrative licensing expungements in drivers license matters. This is in contrast to Ohio law at section Ohio revised code 2953. 32 and 2953. 52.  This conclusion is drawn because one provision of Pennsylvania’s expungement law, § 9122(a)(3), specifically states “the court shall order the expungement of all criminal history record information and all administrative records of the Department of Transportation.” Leaving absent all other administrative licensing boards allows these Boards to not expunge their Board proceedings that rely upon criminal charges that were eventually dismissed or expunged.
This is a complex reporting issue for Pennsylvania’s nurses.  In October 2015 Pennsylvania Nursing Board regulations changed, requiring reporting of criminal arrests within 30 days of the arrest.  Other licensees who receives ARD or other pretrial probationary dismissal of offenses under the Drug Act only have to report upon the conclusion of the offense.   I am now finding that nursing license prosecutions are commencing soon after the initial reporting of the criminal arrest and not upon its conclusion.  This creates important 5th Amendment self-incrimination questions for the licensee trying to maintain their profession and their license in the midst of a criminal case.

Other cases affected by this expungement rule include enrollees of Pennsylvania Drug Act, Section 17 drug use dismissal cases, and county Drug Court programs for felony drug sale or possessory offenses. Typically, satisfactorily completing these county-based criminal court diversion programs result in dismissal of criminal charges. Thereafter, the licensee is eligible for the expungement in criminal court of those dismissed criminal allegations. Nonetheless, the licensee will have already reported on their annual renewal or initial licensure application their involvement in these criminal cases. Reporting of Drug Act or pretrial ARD or Drug Court involvement automatically results in licensure disciplinary action even though the charges are eventually dismissed and expunged.

Pennsylvania’s expungement rules do not waiver on this issue.  As well, CHIRA and the Drug Act specifically provides for automatic Licensing Board disciplinary action of any licensee enrollment in any Drug Act pre-trial probation program that eventually results in dismissal and expungement eligibility.  It is the old fashion Blue Law, religious based abstinence theory of the Pennsylvania laws that have not progressed with the rest of the country.  Kicking people out of their jobs and taking their licenses, rather than treatment and keeping them productive members of society, like in OHIO, is how Pennsylvania currently functions.

The VRP and the “Letter of Concern” — They Are Not Concerned!

I have written about this issue many times.  I, though, continue my one attorney crusade against the PHMP improperly offering a drug and alcohol treatment-abstinence program to vulnerable licensees who neither suffer from drug or alcohol addiction nor are incapable of safely practicing their profession.  By this I mean offering any professional enrollment in the Voluntary Recovery Program “VRP” whether or not they suffer from an addiction or impairment.

The VRP does this by targeting professionals charged for the first time with a DUI or other minor alcohol or drug related summary offenses.  These professionals received the VRP “letter of concern” at a very vulnerable time.  Especially nurses who must report criminal charges with in thirty (30) days of arrest, not conviction. However, first time DUI offenders are typically eligible for Pennsylvania’s ARD pre-trial diversion program.   As such, there will be no conviction.  Professionals receiving the “letter of concern” while the DUI prosecution is just starting are terrified of losing their license. Many unilaterally, without consultation of licensing counsel like me, go to the VRP assessment and then sign a PHMP consent agreement thinking it saves their license while the prosecution is pending. It only makes the problems worse.
The 2006 case Wittorf v. State Board of Nursing, 913 A.2d 956 (Pa. Cmwlth. 2006) is on point. Wittorf voluntarily entered the VRP to save his license after a first time DUI offense.  (If he had competent counsel he would not have entered the VRP to start and his license would never have been affected.) Soon after, however, the rigors of the abstinence-based PNAP administered PHMP became clear.  Work and life affected Wittorf’s ability to comply with every condition of the program.  He sought to exit the program.  Wittorf claimed he did not suffer from a drug or alcohol addiction that rendered him an impaired nurse. Wittorf presented numerous witnesses at the hearing supporting his lack of addiction and any professional impairment. Wittorf lost his petition to exit the VRP and have his license returned to non-probationary status.
Wittorf forgot he signed the standard PHMP agreement/contract and Board Consent Agreement.  Each document contains admissions that the signatory is an alcoholic (or drug addict) and such impairs their ability to practice their professional safely. This is the only legal fact upon which the Court needed to rely in denying Wittorf’s motion.  By signing the agreements Wittorf (and every other licensee in the same position) stipulates to both their addiction and impairment when asking to voluntarily enter the VRP.  One must do so to be eligible for the VRP.  Its the worst thing to do.
Every VRP “letter of concern” includes the personal data information sheet and medical authorization releases. Do not sign any of these documents if you wish to retain your medical, nursing for other professional  license.  Do not go to the requested assessment as one is not legally required. If you are reading this blog or column, you should call me immediately.
If you are reading this blog after being charged with a DUI and compelled to go to a COAD (Council on Addictive Diseases) assessment, hire competent counsel to handle your licensing issue along with the DUI. This is because typically the mandatory ARD DUI COAD assessors are the local PHMP referred VRP assessors. Once that assessor learns that DUI ARD applicant sitting in front of them is also a professional licensee – especially nurses and doctors – the assessment turns into a VRP assessment that I advise my clients to avoid.  Being prepared for this assessment, similar to be prepared for the Mental and Physical Evaluations (see my other blogs int he archives), is just as important.
The only way I can fight against the unfair tactics of the VRP is by representing as many professionals as I can.  These are trained but incompetent unlicensed case workers implements are highly structured regulatory process.  They have no authority to deviate from any condition of the program.
The PHMP, PMP, VRP, PNAP case workers deal with these issues every day and have honed their trapping skills over the years.  I read the same case workers names on every VRP and PHMP “letters of concern”.  This is the first time you have read this letter.  You need experienced counsel who has honed his skills to battle these experienced case workers.  Call me.

Pennsylvania’s Medical Marijuanna Law and the Medical Licensee

Medical marijuana is close to reality in Pennsylvania. However, a reality check is necessary at this time. Do not be mistaken and think that as a licensed professional you are not subject to losing your job or license if you test positive for legalized THC in your blood while on the job.

This blog will discuss various provisions of Pennsylvania’s new medical marijuana law and it’s enforcement on Pennsylvania licensed professionals. This blog will not discuss violations of the Medical Marijuana Act by licensed practitioners and patients.

Pennsylvania’s MEDICAL MARIJUANA ACT is found at 2015 Bill Text PA S.B. 3, 2015 Bill Text PA S.B. 3.  The main provision of the Act as it pertains to use of marijuana by a licensee is § 510, (4).  The clause states that:   “A PATIENT MAY BE PROHIBITED BY AN EMPLOYER FROM PERFORMING ANY DUTY WHICH COULD RESULT IN A PUBLIC HEALTH OR SAFETY RISK WHILE UNDER THE INFLUENCE OF MEDICAL MARIJUANA. THE PROHIBITION SHALL NOT BE DEEMED AN ADVERSE EMPLOYMENT DECISION EVEN IF THE PROHIBITION RESULTS IN FINANCIAL HARM FOR THE PATIENT.

This provision does not have THC blood level nano gram cut off for the amount of medical marijuana in patient/professional’s blood.  The language “Under the Influence” is repeatedly used.  Every drug/alcohol expert (not PHMP assessor) knows that a “Under the Influence” blood level is different for every person. This means any active medical marijuana patient/user who is a professional licensee is still subject licensing board prosecution and employment related disciplinary action for allegedly practicing “Under the Influence” of THC in violation of their licensing regulatory statute, regardless of what this provision provides.

Experts of what THC levels constitute “Under the Influence” mean will now abound.  Employment based random drug tests based upon appearances of “Under the Influence” will become rampant.  Each such positive drug test, with drug expert conclusions on what is “Under the Influence of THC” will become a reportable action to the professional board, which can still take action against the licensee.  This is especially true for the licensee who does not possess a medical marijuana patient card and tests positive for THC.  This conduct will still result in Board prosecution because marijuana use without a registration card is still illegal regardless of whether criminally charged or when THC is removed from Pennsylvania’s controlled substance schedules.

There are two provisions of the Act that support this interpretation. The first is § 1101.  This section states GRAPP governs enforcement of the Act. Grapp is Pennsylvania’s General Rules for Administrative Practice and Procedure. These  are the same procedural and substantive rules that apply to professional license prosecutions. As such, the same hearing officers that are familiar with how to and which disciplinary provisions apply to the licensed professional accused of violating their licensing regulations will review allegations of Medical Marijuana Act violations for either THC issues or violative conduct under the Act as a health care provider.

The next section is § 2103.  This provision deals with protections to licensees who are otherwise medical marijuana card carriers. However, the protections set forth herein only apply to proper use and application of the medical marijuana card.  Licensees accused of sharing their medical marijuana to a non-medical marijuana patient, or who engage in other criminal violations (DUI or a Drug Act violation) are still subject to disciplinary action under their own licensing regulations.

As well, subsection § 2103(B)(2) still allows for employment related disciplinary action for those professional’s medical marijuana use that places the public in harm’s way. If you are reading this blog, you are my typical medical professional client. You cannot got to work “Under the Influence” of THC even if it is a prescribed medication.  Even though working with THC in your blood is allowed and can not form the “sole” basis for disciplinary action, working in a negligent or reckless manner due to being “Under the influence” automatically puts patients at risk.  This conduct will become the basis for employment and licensing action. How and why such becomes known to supervisors is anyone’s guess.

The provision addressing this reality is § 1309.  Section 1309 does not prevent imposition any civil or criminal penalty for undertaking a task “Under the Influence” of medical marijuana when doing so would constitute negligence, professional malpractice or professional misconduct.  Further, if you are not a registered medical marijuana patient, § 2101, making primacy the Medical Marijuana Act over the Drug Act, does not protect you, the illegal possessor or distributor (sharing) of marijuana.

Finally, it cannot be overstated the potential affect on a professional’s license the suggestion of a medical disability warranting medical marijuana use.  Being a properly registered medical marijuana patient legally allows one to consume medical marijuana.  However, requesting your medical professional to verify under the Act’s procedures that you so suffer from a medical condition that medical marijuana is the primary medication may trigger Petitions for Mental and Physical Evaluation by your licensing board.

This would occur when a failed employment related drug test or occurrence is reported to the Board.  The obvious and typical “Under the Influence” allegations would be made.  While no specific direct disciplinary action could be the first salvo in a disciplinary prosecution, allegations of medical infirmity that creates a professional impairment will be lodged.  The Mental and Physical Evaluation that will follow will necessarily require production of all medical records, even those that form the basis for the medical marijuana card.  This raises the specter of a PHMP required monitoring program for which marijuana use is strictly prohibited.  Please read my other blogs on the PHMP and the 3-5 religious based abstinence program.

In sum medical marijuana is more of an indirectly but just as serious threat to many licensees who could become trapped in the maze of license prosecutions once blood tests are drawn and “Under the Influence” allegations are made.  Call me to discuss.

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