Reasonable Suspicion –DUI Traffic Stop –License Suspended Only

Commonwealth v. Farnan, 2012 PA Super 221 (Pa. Super. Ct. October 11, 2012) is the perfect new case to discuss what Superior court concludes is reasonable suspicion as the basis to perform of Commonwealth of Pennsylvania motor vehicle traffic stop. Right now, in Pennsylvania, a police officer has authority to stop a vehicle when he or she has reasonable suspicion that a violation of the Motor Vehicle Code is occurring or has occurred. This authority is pursuant to 75 Pa. C.S.A. § 6308.

The PA Supreme Court defines reasonable suspicion as “a less stringent standard than probable cause necessary to effectuate a warrantless arrest, and depends on the information possessed by police and its degree of reliability in the totality of the circumstances.”
In order to justify the seizure, a police officer must be able to point to “specific and articulable facts” leading him to suspect criminal activity is afoot. In assessing the totality of the circumstances, courts must also afford due weight to the specific, reasonable inferences drawn from the facts in light of the officer’s experience and acknowledge that innocent facts, when considered collectively, may permit the investigative detention. Commonwealth v. Holmes, 609 Pa. 1, 14 A.3d 89, 95-96 (Pa. 2011).

The Farnan case involved a factual scenario that is all too familiar to many rural police departments. Mr. Farnan was the operator of a motor vehicle near his home after the police were called to address a domestic disturbance. Upon arrival there was no criminal activity. However, the police officers knew Mr. Farnan and were aware that for at least thirty days Farnan did not possess a valid driver’s license due to a DUI conviction. Mr. Farnan drove past the home where his ex-wife and police officers were standing discussing the domestic matter. One officer, without checking the PA DOT driver’s license history, got into his patrol car and pursued Mr. Farnan for driving while on a DUI related license suspension in violation of 75 Pa CSA § 1543(b). This was the only motor vehicle infraction observed; no swerving, speeding, or any type of erratic driving was claimed to be an independent basis for the traffic stop.

Mr. Farnan was arrested and charged with violating 75 Pa. C.S.A. § 3802(a), (c) and § 75 Pa. C.S.A. §1543(b). He faced 180 days in jail. He complained that without actually checking his PennDOT license status there was no reasonable suspicion of criminal activity and, therefore, no basis to pull him over and, therefore, no basis for the officer to conduct a DUI investigation.

Stated more specifically, “the officer’s prior knowledge regarding Farnan’s license suspended status was approximately 30 days old when the vehicle detention occurred and, therefore, constituted stale information from which it could not reasonably be inferred that he had been driving with a suspended license at the time he was detained.”

The court, relying on §6308(b) and case law discussing the exact same facts except for the length of time of knowledge of a suspension, found that: 1) the officer had reasonable suspicion that a violation of the motor vehicle code was occurring; 2) the law permitted him to stop Farnan for the purpose of a) checking the vehicle’s registration, b) proof of financial responsibility, c) vehicle identification number or engine number or the driver’s license, or d) to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.75 Pa.C.S. § 6308(b).

No specific case dealing with the thirty day time period was found. In Commonwealth v. Stevenson, 2003 PA Super 347, 832 A.2d 1123 (Pa. Super. 2003), Superior Court held that the passage of three years invalidated an officer’s reliance on license suspension information to justify a vehicle detention. At the other end of the spectrum, in Commonwealth v. Hillar, 2008 PA Super 22, 943 A.2d 984 (Pa. Super. 2008), appeal denied, 598 Pa. 763, 956 A.2d 432 (Pa. 2008), Superior Court has stated an officer’s acquisition of license suspension information immediately prior to a traffic stop did, in fact, establish reasonable suspicion.

Although no Pennsylvania court case has considered the freshness, reliability, and validity of license suspension information the court specifically stated that “the 30-day period between [the police officer’s] acquisition of information regarding Farnan’s license status and the challenged investigative vehicle detention was not so lengthy as to deplete the officer’s knowledge of its probative value concerning the likelihood that Farnan was in violation of the Motor Vehicle Code at the time of the stop.”

Significantly, the court stated that this minor modicum of facts permitted the investigatory detention to determine the license status of Farnan, if nothing else. When his license was determined to be suspended and/or his appeared to violate another provision of the Motor Vehicle code, § 3802, such independent criminal investigation was permitted. The police “did not need to be absolutely certain that Appellant was driving under a suspended license in order to commence his investigation.”

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Health Care Fraud Cases

Being investigated by any governmental health insurance program carries with it both significant responsibilities and repercussions if the representation is handled incorrectly, wrong advice given, or false statements made to those investigators. Emergent counsel needs will become clear depending on the nature and extent of the investigation, employee conduct, and the amount of insurance proceeds secured through improper billing.

In the typical health care fraud indictment, the United States government charges both individuals in control of the company or the appropriate workers and the corporate with one or multiple counts of Health Care Fraud in violation of Title 18, United States Code, Sections 1347 and making False Statements Relating to Health Care Matters in violation of Title 18, United States Code, Section 1035(a)(2). Theft of government funds is also always present.

The factual allegations match the criminal violations of § 1347, by setting forth a factual scheme in which the perpetrators: knowingly and willfully execute, or attempts to execute, a scheme or artifice– (1) to defraud any health care benefit program; or (2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services.

Charges of violationing § 1035 relate to false statements relating to health care matters. Here, whoever, in any matter involving a health care benefit program, knowingly and willfully– (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; or (2) makes any materially false, fictitious, or fraudulent statements or representations, or makes or uses any materially false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry,

Lying to a § 1035 health care investigator regarding their investigation of the delivery of or payment for health care benefits, items, or services, garners imprisonment of not more than 5 years. Committing the fraud in any manner relative to falsifying submissions for payments of services not rendered in violation of § 1347 can warrant imprisonment of not more than 10 years. If someone is seriously injured due to the fraud (as defined in 18 USCS § 1365) the maximum is 20 years. If death to a patient results from the fraud, any term of years or for life is possible.

In one case, the court held that the record amply supports the jury verdict that the defendant, the owner of the company, directed his employees to falsify records so that they did not accurately reflect the deplorable conditions. The falsified records were then provided to the Pennsylvania Department of Health (“DOH”) for the specific purpose of deceiving it into believing that Atrium complied with applicable regulations, so that Atrium would maintain its certification under Medicare and Medicaid and, hence, the flow of government money. Bell was properly found guilty of health care fraud “based upon a scheme to falsify records” that she used “in an attempt to conceal from state and federal regulatory agencies the substandard care which was being provided to residents at Atrium. United States v. Bell, 2010 U.S. Dist. LEXIS 42947, 5-6 (W.D. Pa. May 3, 2010).

Please call to discuss your health care fraud investigation, questions, and compliance issues. Please visit my web site to review collateral licensure complications associated with any medical and nursing license issue.

PennDOT Refusal Creditibility Issues

In a recent case Janna Perry appealed a Commonwealth of Pennsylvania, Department of Transportation (“PennDOT”) suspension of her driving privilege for a period of one year. Perry v. Commonwealth, 2012 Phila. Ct. Com. Pl. LEXIS 296, 1-7 (Pa. C.P. 2012). The suspension was sought as a result of police officers alleging, during the course of a DUI – 75 Pa C.S.A. § 3802(b) investigation, that when they asked Ms. Perry to submit to a breath test in accordance with their rights under 75 Pa.C.S.A § 1547, she refused to take a chemical test.

The evidence presented was that Ms. Perry had not refused to take a chemical test at the police station after she was arrested; rather, she had followed instructions, successfully taken one test and tried in good faith to take a second test. PennDOT alleged she did not cooperate fully as she was required to and her refusal to cooperate constituted a deliberate refusal to take the test in violation of § 1547(b)(1)(i) of the Pennsylvania Vehicle Code, 75 Pa.C.S.A. § 1547(b)(1)(i).

Trooper Buch testified as to the facts regarding the traffic stop, her taking a portable breath test which she failed, and her being detained and taken to the station for further testing. He alleged he read Ms. Perry the O’Connell warning pursuant to state law and explained to Ms. Perry the proper way to perform the test.

He demonstrated the plastic mouth piece and the proper way to blow into the breathalyzer and instructed Ms. Perry to take one long steady continuous breath into the machine. Ms. Perry provided the first breath sample — a long continuous breath which is reflected in the report derived from the DataMaster. This first test provided an accurate reading of Ms. Perry’s condition. She then took a second test. Trooper Buch testified she did not produce the long continuous breath required for the second test, taking only short breaths. Trooper Buch testified that after Ms. Perry did not perform the second test, she was given a two minute window to provide a proper sample of breath. Trooper Buch testified he again instructed and demonstrated to Ms. Perry how to properly execute the breath test but Ms. Perry indicated she would not take the test.

Conversely, Ms. Perry testified she took two breathalyzer tests to the best of her ability. She testified she took the first test, breathing into the machine as instructed, and was told the test was successful. She further testified she took a second test, but was not told that test was incorrectly taken and was not asked to take a third test. Ms. Perry’s testimony was that she never refused to take any of the tests she was asked to perform both before and after being taken into custody.

To secure a § 1547 violation and suspension, PennDOT must establish the licensee: (1) was arrested by a police officer who had reasonable grounds to believe the licensee was operating a motor vehicle while under the influence of alcohol; (2) was asked to submit to a chemical test; (3) refused to do so; and (4) was specifically warned refusal would result in a license suspension. Ouick v. PennDOT, 915 A.2d 1268, 1271 (Pa. Cmwlth. 2007). PennDOT must produce evidence the arrestee deliberately attempted to produce an inadequate sample. The crucial, determinative factor gleaned from the cases is whether PennDOT’s evidence proves the licensee deliberately tried to delay or undermine the testing process. Bomba v. Commonwealth, 28 A.3d 946; 2011 Pa. Commw. LEXIS 462.

Here, the issue became one of credibility. The issue of credibility is resolved by the Court as the finder-of-fact. Bremmer v. Protected Home Insurance Company, 436 Pa. 494, 260 A.2d 785 (1970); Dudley v. USX Corp., 414 Pa. Super. 160, 606 A.2d 916 (1992).

As fact-finder, this Court concluded PennDOT failed to produce evidence sufficient to sustain its burden to prove a deliberate refusal. Rather, the evidence showed Ms. Perry obliged both Troopers throughout the stop. She was candid when asked if she was drinking. She performed all the requested tests at the scene to the satisfaction of Trooper Scrivani, including the portable breath test; curiously contrary to Trooper Buch’s testimony that Ms. Perry refused to complete all the tests.

The uncontroverted evidence showed the Troopers read the O’Connell Warnings and the PennDOT DL-26 form twice to Ms. Perry and, while at the police station; Ms. Perry cooperated with both Troopers’ requests regarding the chemical breath test, performing the first test with satisfactory results. The issue of “refusal” surrounded the second sample. Both Troopers stated Ms. Perry gave an insufficient second sample, and thereafter refused to re-take the test. Ms. Perry testified not only did she agree to subject herself to every test she was asked to take, both at the scene and at the police station, but she completed each one and was never advised that any were improperly completed.

Whereas the Troopers’ testimony conflicted as to whether Ms. Perry consented or refused to participate in all the tests at the scene prior to her arrest, calling into question their credibility, there was sufficient testimony to reasonably conclude that Ms. Perry cooperated fully throughout the entire process. Having found Ms. Perry credible and that PennDOT failed to meet its evidentiary burden to show Ms. Perry deliberately delayed or undermined the testing process, Ms. Perry appeal was sustained and the license suspension rejected.

Nurse License Renewal–ARD and Expungment Timing

Pursuant to § 21.29, the annual Nursing license expiration and renewal occurs on (1) April 30 in the even-numbered years, (2) October 31 in the even-numbered years, (3) April 30 in the odd-numbered years, and (4) October 31 in the odd-numbered years.
Upon receipt of the notice of the renewal, and the time period within which the application need be completed, the applicant for license renewal may complete and submit an application online or may mail a completed application form to the Board’s administrative office.
When applying for licensure renewal, a professional nurse shall, among other things, disclose any discipline imposed by a state licensing board on any nursing or allied health profession license or certificate in the previous biennial period and any criminal charges pending or criminal conviction, plea of guilty or nolo contendere, or admission into a probation without verdict or accelerated rehabilitative disposition during the previous biennial period. If the charges were expunged, then no reporting is required.
Timing of any ARD admission, completion of ARD and expungment of the ARD criminal record in conjunction with filing the renewal application is important. There are time lags when submitting any renewal application if the applicant must report being involved in the criminal justice system. Attaching court documents of ARD completion and expungment orders are important. Speeding up a criminal case to get in and out of ARD before renewal is important. If the criminal case is not over at the time of renewal, it must be reported. If it ends after renewal, and you ARD is entered and completed prior to renewal, with an expungment possible, but not granted, it must be reported.
It is very important to file an expungment application just prior to completion of the ARD so that court dates may be coordinated just after ending ARD and having an expungment granted. We have experience filing the petitions very quickly with the appropriate averments addressing licensing complications. While answering honestly and forthrightly in any renewal application is primary, there are always ways to minimize the impact of any criminal matter on a licensee’s future with ARD and expungments.

Nursing License Enforcement Mechanism

The strong enforcement mechanism of the Pennsylvania Nursing Board is found at 63 P.S. § 224. Under this provision, the Board may refuse, suspend or revoke any license in any case where the Board shall find that– (1) The licensee is on repeated occasions negligent or incompetent in the practice of professional nursing or dietetics-nutrition; (2) The licensee is unable to practice professional nursing with reasonable skill and safety to patients by reason of mental or physical illness or condition or physiological or psychological dependence upon alcohol, hallucinogenic or narcotic drugs or other drugs which tend to impair judgment or coordination, so long as such dependence shall continue; (3) The licensee has willfully or repeatedly violated any of the provisions of this act or of the regulations of the Board; (4) The licensee has committed fraud or deceit in all aspects of practicing nursing
Included in these enforcement powers is revoking a license if the licensee has been convicted, or has pleaded guilty, or entered a plea of nolo contendere, or has been found guilty by a judge or jury, of a felony or a crime of moral turpitude, or has received probation without verdict, disposition in lieu of trial or an Accelerated Rehabilitative Disposition in the disposition of felony charges, in the courts of this Commonwealth, the United States or any other state, territory, possession or country. The catch all provisions of acting in such a manner as to present an immediate and clear danger to the public health or safety and/or possessed, used, acquired or distributed a controlled substance or caution legend drug for other than an acceptable medical purpose will also get a licenses revoked.
If any of these major incidents occur, and there are others, the Board may (1) Deny the application for a license; (2) Administer a public reprimand; (3) Revoke, suspend, limit or otherwise restrict a license as determined by the Board; (4) Require a licensee to submit to the care, counseling or treatment of a physician or a psychologist designated by the Board; (5) Suspend enforcement of its finding thereof and place a licensee on probation with the right to vacate the probationary order for noncompliance; (6) Restore or reissue, in its discretion, a suspended license to practice professional or practical nursing or dietetics-nutrition and impose any disciplinary or corrective measure which it might originally have imposed. 63 P.S. § 224
A violation of any of these provisions does not have to be willful. Our Supreme Court has defined “willful” under § 14(3) as “an intentional, designed act and one without justifiable excuse.” However, no specific intent to violate the act or its rules and regulations is required to establish a willful violation. Commonwealth v. Rafferty, 508 Pa. 566, 572-574 (Pa. 1985)
The Supreme Court has stated that the pre-eminent interest of the Board is for patient care. The Board’s responsibility “[t]o assure safe standards of nursing practice through . . . the regulation of the practice of nursing in this Commonwealth.” 49 Pa. Code § 21.3(2). Commonwealth v. Rafferty, 508 Pa. 566, 572-574 (Pa. 1985). An interpretation of the term “willful” which incorporates an element of the nurse’s motivation would subordinate the interest in patient care to that of policing a nurse’s conduct.

State PCRA Deadline — Per State Supreme Court

In the case of Commonwealth v. Jones, 2012 Pa. LEXIS 2258, 4-6 (Pa. Sept. 28, 2012) the court addressed the lagging issue of serial PCRA petitions, including a second or subsequent one, and when they must be filed. The court ruled that in accordance with the statute, the filings must be completed within one year of the date the petitioner’s judgment of sentence became final, unless he pleads and proves one of the three exceptions outlined in 42 Pa.C.S. § 9545(b)(1). The These exceptions are: “(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; (ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.” 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Commonwealth v. Howard, 788 A.2d 351, 354 (Pa. 2002).

Importantly, the court further restricted PCRA filings that stem after discovered evidence “discovered during” federal PCRA, or as they are known in federal court, Habeas Corpis petitions. In this case, Jones alleged the discovery he received pursuant to the 2005 federal court order provided him with newly-discovered evidence which satisfied the “governmental interference” exception to the time-bar. See 42 Pa.C.S. § 9545(b)(i), (ii). Specifically, he contended many facts he learned about one of the Commonwealth’s key witnesses, Rodney Carson, could have been used to impeach Carson at trial. Therefore, he concluded the Commonwealth committed Brady violations by failing to disclose these allegedly exculpatory facts prior to trial.

The Jones state court PCRA judge dismissed the petition as untimely for appellant’s failure to file it within the 60-day period required for petitions subject to an exception. See 42 Pa.C.S. § 9545(b)(2). It is important to understand that this is the triggering date for any PCRA relief. The Jones court holds that: “A state court sentencing judgment becomes final at the conclusion of direct review by this Court or the United States Supreme Court, or at the expiration of the time for seeking such review. 42 Pa.C.S. § 9545(b)(3). The PCRA’s timeliness requirements are jurisdictional; therefore, a court may not address the merits of the issues raised if the petition was not timely filed. The timeliness requirements apply to all PCRA petitions, regardless of the nature of the individual claims raised therein. Murray, at 203. The PCRA squarely places upon the petitioner the burden of proving an untimely petition fits within one of the three exceptions. The PCRA further requires a petition invoking one of these exceptions to “be filed within 60 days of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). On appeal from the denial of PCRA relief, this Court decides “whether the findings of the PCRA court are supported by the record and free of legal error.” Commonwealth v. Jones, 2012 Pa. LEXIS 2258, 4-6 (Pa. Sept. 28, 2012).

Chief Justice Castile joins in this opinion, but writes separately to address a vexing problem with state PCRA cases that have also been dealt with in Federal court. In his mind, “the point of federal habeas review is not to go on fishing expeditions to find new facts and claims not already presented in state court; federal courts are to review only the federal constitutional claims properly presented to state courts, while showing required deference to the reasonable decisions of the sovereign state courts.” Citing to the new federal Habeas Corpus statute ,28 U.S.C.] § 2254(d)(1), Chief Justice Castile concludes that federal review “ is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that ‘resulted in’ a decision that was contrary to, or ‘involved’ an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time i.e., the record before the state court.” “Section 2254(b) requires that prisoners must ordinarily exhaust state remedies before filing for federal habeas relief. It would be contrary to that purpose to allow a petitioner to overcome an adverse state-court decision with new evidence introduced in a federal habeas court and reviewed by that court in the first instance effectively de novo.” Commonwealth v. Jones, 2012 Pa. LEXIS 2258, 10-13 (Pa. Sept. 28, 2012)

Essentially, our Supreme Court is now enforcing the legislative instruction to limit all PCRA relief to that which was before the trial court at the time of the trial and any evidence that is brought forth at the appropriate time within the state court PCRA rule. The Court is tired of the 10 year PCRA federal and state court proceedings which essentially become new trial many years after the criminal proceedings.

Medical License Revocation and Suspension Issues

In this day and age, the Pennsylvania licensing boards are finding any reason possible to suspend or revoke a licensee’s license. One of the easiest catch all phrases to invoke a license suspension/revocation is violating the “moral turpitude” provision of the administrative laws/regulations. This provision addresses all conduct that is contrary to honesty. Yurick v. Board of Osteopathic Examiners, 43 Pa. Commonwealth Ct. 248, 402 A.2d 290 (1979); Moretti v. State Board of Pharmacy, 2 Pa. Commonwealth Ct. 121, 277 A.2d 516 (1971). Pleading guilty to any crime of dishonesty thus involves “moral turpitude.” Admitting your guilt to any crime will give any of the Commonwealth licensing boards discretionary power to revoke or suspend a license. Section 16(3) of the Act provides the legal basis for the suspension.

The moral turpitude clause is not limited to physical conduct and acts between a doctor and a patient. Significantly, securing improper insurance payments, it has been held, has everything to do with the practice of medicine. In one case, the doctor asserted that his license should not be suspended because the misconduct to which he pled guilty did not involve a “doctor-patient relationship,” and thus did not relate to the practice of his profession. The court concluded, however, that the offenses to which the doctor pled guilty did relate to the practice of his profession; because he obtained the improper payments by exploitation of his professional position. See Derrick v. Department of State, Bureau of Professional and Occupational Affairs, 60 Pa. Commonwealth Ct. 543, 432 A.2d 282 (1981).

In another case, the state medical board ordered that the licensee be disciplined under the Medical Practice Act of 1985, Pa. Stat. Ann. tit. 63, § 422.41(7), because he knowingly allowed an unlicensed doctor to practice medicine in Pennsylvania and the doctor was acting as more than a consultant at the time of the infraction. Gleeson v. State Bd. of Med., 900 A.2d 430 (Pa. Commw. Ct. 2006).

In the case at bar, a Michigan-licensed medical doctor, was found to have engaged in the practice of medicine and surgery without a license (any of the three that may be obtained) based on the video observations that during a teaching/consultation session of a surgery he scrubbed in and wore surgical attire, touched the patient and performed an “invasive” procedure on the patient during a breast augmentation.

There are several different kinds of licenses that a medical doctor can obtain in order to practice medicine and surgery in Pennsylvania. See 63 P.S. §§ 422.25, 422.29-422.34. Of particular importance, a medical doctor licensed without restriction by another state can acquire a “temporary license,” which would empower him to “teach medicine and surgery or participate in a medical procedure necessary for the well-being of a specified patient within this Commonwealth.” 63 P.S. § 422.33(a)(1) (emphasis added). This particular Section of the Act provides a clear distinction between authorized practice of medicine and surgery and unauthorized practice of medicine and surgery, by requiring a doctor who “participates” in a surgical procedure to obtain, at a minimum, a temporary license in this Commonwealth.

The Board found that the Michigan doctor was not acting as a “consultant” and, therefore, exempt from licensure. See 63 P.S. § 422.16. The “consultation” exemption of the Act provides that: person authorized to practice medicine or surgery or osteopathy without restriction by any other state may, upon request by a medical doctor, provide consultation to the medical doctor regarding the treatment of a patient under the care of the medical doctor.63 P.S. § 422.16 (emphasis added).

The consultation exemption of the Act also makes clear that the act of “consulting” is strictly conducted between a doctor unlicensed in Pennsylvania and a licensed Pennsylvania doctor, not between a doctor unlicensed in Pennsylvania and a patient. Here, Dr. Grafton, as a doctor unlicensed in Pennsylvania, did not limit his involvement to consulting with licensee. Rather, as Dr. Kauffman testified and the videotape demonstrated, Dr. Grafton, “scrubbed” and in surgical attire, physically touched and actually performed a procedure on the patient that was invasive. Therefore, the Court concluded that Dr. Grafton’s actions clearly exceeded the scope of the consultation exemption. Gleeson v. State Bd. of Med., 900 A.2d 430, 436-437 (Pa. Commw. Ct. 2006).

Here no patient complaints were present. Someone complained to the Board about the private surgical practice and the Board took up an investigation of this one procedure. While apparently appropriate, it shows the lengths to which the Boards are now going to investigate any medical license issue.

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