PNAP Conditions for Nursing License Reinstatement

The recent Commonwealth Court case of Blair v. Board of Nursing, 2013 Pa. Commw. Unpub. LEXIS 388 (May 28, 2013), reviews a Pennsylvania Nursing Board decision affirming the substantial and egregious hurdles PNAP places on reinstatement of nursing licenses. Blair, unfortunately, plead guilty to a misdemeanor drug possession charge in 2006 and admitted to heroin addiction stemming from migraine headaches. Over the next several years he entered and successfully completed several drug treatment and detoxification programs, securing temporary reinstatement of his license. Blair was compliant with all recommendations of PNAP even though he refused to enroll in PNAP. Blair rejected PNAP because he successfully worked as a home nurse in a setting without the ability to be monitored. This monitoring was PNAP’s only condition, of forty-two, to which he could not comply and PNAP would not waiver, requiring the institution of disciplinary proceeding. This case discusses the disciplinary action the Board of Nursing took against Blair and the results.

Importantly, the appellate court’s review of Department of State licensing board decisions is limited to determining whether the findings of fact are supported by substantial evidence and whether the board committed errors of law or constitutional violations. The licensing board may accept or reject the testimony of any witness, either in whole or in part. When reviewing a board decision, the appellate court may not reweigh the evidence or second guess the board’s credibility determinations. Appellate review of a board’s disciplinary sanction (requiring monitoring in this case) is limited to determining whether the board flagrantly abused its discretion or executed its duties or functions in a purely arbitrary and capricious manner. This is a very high burden.

In Blair, several facts are significant. Blair plead guilty in 2006 to heroin possession, Blair voluntarily submitted to a mental and physical examination, Blair was diagnosed as suffering from heroin dependence disorder in remission, and the finding that Blair “is safe to practice professional nursing only if he participates in a structured monitoring and treatment program for three to five years for his opiate dependence disorder.” Blair’s examination was performed pursuant to 63 P.S. §224(a)(2), which states in part, “in enforcing this clause … the Board shall, upon probable cause, have the authority to compel a licensee to submit to a mental or physical examination as designated by it.” Blair’s admission of heroin dependence gave the Board probable cause to seek the mental and physical examination. A conviction for violating any provision of the Drug Act is both an automatic one year suspension and probable cause for an evaluation upon reinstatement. DUI’s do not automatically constitute a basis for evaluation but the Board will try to use it as a basis to seek voluntary enrollment in PNAP. Don’t fall for this.

Once compelled to be examined (through voluntary enrollment in PNAP or by order), the trap is set. The catch is the report language the Board’s doctors know to employ becomes the death blow to any license. The Commonwealth’s attorneys uniquely and solely rely on their expert to hang their entire license stripping case. No other evidence is necessary.  The Board’s doctors performing these examinations are aware that a diagnosis of any condition, regardless of remission, is the kiss of death for any license. The Board’s doctors employ the same language in every medical and physical report involving individuals with drug use histories. Softly concluding the licensee’s medical condition of drug addiction or use is in “full remission” is a meaningless phrase which the Board ignores.

Once diagnosed, the doctor typically concludes that the licensee must still undergo treatment and monitoring in PNAP. Once PNAP is recommended, the proposed consent decree/settlement agreement with PNAP becomes the problem. This is because, as the Blair court stated, “PNAP’s standard treatment contract, which is modeled after the Bureau of Professional and Occupational Affairs’ (Bureau) Professional Health Monitoring Program (PHMP), prohibits participating nurses from practicing either in a home care setting or without direct supervision in the workplace. As part of its agreement with PHMP, PNAP cannot modify the contract provisions prohibiting practice…”

It is this important statement, of which every Board attorney knows, the Board knows, and the licensee does not know. The forty two conditions of every PNAP agreement, contract, stipulation, settlement, or Board Order, are non-negotiable. It’s a take it or leave it settlement. Unfortunately, once PNAP is proposed, Blair reveals that the hearing officers and the Board will compel the exact same forty two conditions regardless of the licensee’s individual circumstances, which conditions the appellate courts will not disturb. This is why experienced counsel is necessary to avoid consensually stepping into this PNAP trap. Please call me to discuss your case.

Police Illegally Use Hidden Camera –Evidence Suppressed

Evidence secured through a hidden camera inside a house is in admissible in court. Really! In Mercer County, Pa the narcotics task force utilized a confidential informant to gain access to an alleged drug dealer’s house. During the coordinated drug purchase in the defendant’s house, the confidential informant wore a police provided, small video camera (that did not record sound), which video recorded drug transactions between the defendant and the confidential informant.  The police could not see the drug transaction and required either the video or the CI to testify at trial to secure a conviction.  Defendant Dunnavant file a motion to suppress the video evidence, knowing the government would not identify the CI.

The trial court granted the Motion to Suppress, concluding that the video evidence was secured illegally and the evidence contained in the video was not essential for the government to prove its case. Rather, the Government could produce the identity of the confidential informant, who would then testify about the transactions and identify the seller of the drugs.  The Commonwealth, instead, chose not to identify the CI, and appealed the trial court’s decision granting the Motion to Suppress.  The police stipulated to the facts of the case, but claimed the suppression court decision constituted an error of law.

The Commonwealth relied on a case in which the defendant there secreted a video camera in a house and took videos of sexual acts of the house member.  That evidence was suppressed because a “defendant has a legitimate expectation of privacy not only in their home, but also in the reflection of their home as depicted in the video.”  Commonwealth vs Kean.  The Pennsylvania Supreme Court did not review this decision and the law still stands that any government video inside a private residence, not properly supported by a warrant and probable cause, is in admissible.  Kean.

Pennsylvania has long granted greater protections to its citizens than the federal constitution. In this context, our Superior Court in Commonwealth v. Dunnavant focused on the improper behavior of the government in having its agent enter the home of another for the purposes of video taping a meeting without a warrant. The court found the use of a camera amounted to a search of the residence through a lens of the digital hidden images that the camera produces. Significantly, the court emphasized the government’s inability to identify any case supporting its argument that the inadvertent video recording would be legally admissible.

The importance of this ruling is clear: the Pennsylvania courts are policing the police in their use, and the admissibility, of surreptitiously secured electronic data. The federal and state laws addressing surveillance and eavesdropping, either consensual or via warrant, have opened up vast amounts of evidence to be used in criminal prosecutions. However, with the additional opportunities to secure evidence, at the cost of significant civil liberty infringement, the courts understand they are the last bulk head protecting citizens from over zealous police investigative techniques.

This is one clear case where the courts push back the government’s investigative techniques where a warrant is not secured and there is an alternative way to present the criminal acts to a fact finder.  The government used this case as a test case on how little few people it could call to testify at trial about evidence of criminal activity.  The trial and appellate courts drew a line in the sand.  Anytime video evidence of criminal acts secured through the placement of a camera inside a potential defendant’s house, a warrant, at a minimum, must be secured.  Here no was secured.

The boundaries of proper policing must be questioned in every case. Motions to Suppress should be filed in every case. The motions should address the legality of police conduct to properly limit illegally secured evidence from making its way into trial.  Call me to discuss your case.

Accomplice Liability in Pennsylvania

The recent case of Commonwealth v Toritto, provides a good chance to review ACCOMPLICE LIABILITY IN PENNSYLVANIA. In this case, Toritto was charged with conspiracy based on tangential evidence of involvement in a drug deal. The Commonwealth argued his liability was based upon either conspiracy or accomplice liability.  The jury found him not guilty of conspiracy, but found him guilty of the drug delivery based upon accomplice liability and the specific jury instructions the Commonwealth asked the judge to read to the jury during the trial.

The Commonwealth argued, and the jury found, that Toritto’s criminal liability was based upon allegations of being the driver not the main defendant or co-conspirator who allegedly committed the drug deal. He was the friend who drove himself and another to a drug deal partially aware that he was transporting drugs or money to the deal. Factually, the evidence was that after arriving at a bar and meeting the undercover officer in the bar together, Toritto gave the keys of his car to his co-defendant friend, allowing him to retrieve the narcotics from Toritto’s car. Furthermore, Toritto was intermittently present while the co-defendant discussed the transaction with the undercover agent, but did not participate directly in the transaction. After the drug deal Toritto and his friend were arrested as they left the bar.  The jury found him guilty and he was sentenced to 7-14 years in prison.

Another, more typical, example of accomplice liability is where a friend drives another to a bank for a withdraw and waits in the car. Unbeknownst to the driver, the friend in the bank is forging or kiting checks and committing bank fraud. (This is not a bank robbery with the driver sitting in the get-a-way car aware of the bank robbery taking place.) While there may not be enough facts to establish an actual conspiracy (two persons acting on concert to achieve a common purpose, scheme or design), in some counties, the District Attorney will charge the driver/friend with participating in the drug or bank fraud forgery case as an accomplice.

Toritto took his case to a jury trial, arguing that he had no idea of the drug deal in which his cousin was involved, was not an “associate” of the drug gang, and his “mere presence” at the scene of the crime was insufficient as a matter of law for a jury to find him guilty. He lost.  On Appeal Superior Court, sitting en banc, or with nine appellate judges not three, decided the case was important enough to review and present a clear statement of what is accomplice liability based upon mere presence. The court found held that the evidentiary proof necessary to establish accomplice liability “need not be substantial so long as [the evidence establishes that a defendant’s presence] was offered to the principal to assist him in committing or attempting to commit the crime.” Commonwealth v. Murphy, 577 Pa. 275, 286, 844 A.2d 1228, 1234 (2004).

Applying this standard, Superior Court held that the critical facts presented to the jury allowed it, a reasonable person, to draw the inference that Toritto intentionally aided his friend in the sale of narcotics, first by driving him to the bar, then by remaining with him during the conversations, and finally by giving him the keys to his car to retrieve the drugs. The court stated, “A defendant cannot be an accomplice simply based on evidence that he knew about the crime or was present at the scene. However, the circumstances change if there is additional evidence that the defendant intended to aid in the commission of the underlying crime, and then did or attempted to do so.

The lesson in this case is very clear: The Courts are bending over backwards to send the message that any person who provides even minimal help to another in the commission of a crime, regardless of whether that person benefits from the criminal act, can and will be held accountable as an accomplice to the commission of the criminal act.  The penalty for this liability will be equal to actually committing the crime. The old saying, “In for a penny, in for a pound,” will be propounded by every prosecutor in every jury trial seeking to have a person held accountable for helping another accomplish a crime.

Remember, Update Your Registered License Address

A recent Common Please Court cased presents an opportunity to discuss the importance of timely renewal of all professional licenses and your registered address with the State Board of Occupational Affairs. In the case of Joel Poskin v State Board of Nursing, Poskin sued the State Board of Nursing seeking to have the Court compel the Board to expunge his disciplinary record of sanctions for his own failure to timely renew his license and thereafter for practicing nursing without a license. He complained that the Board failed to timely update his mailing address, which failure resulted in him not receiving his license renewal information and, consequently, causing his license to lapse and him practicing without a license, warranting sanctions that now permanently affect his ability to secure employment.

Poskin posited his claim as one of a denial of Due Process under the State Constitution based upon the effect of the disciplinary action was having on his ability to gain employment. Poskin argued that the Board’s failure to identify license suspensions for administrative versus substantive causes was arbitrary and capricious without a basis under the due process clause.  As a result of the improper licensing disciplinary scheme, Poskin argued the State Board of Nursing denied him is procedural Due Process constitutional rights.

The State board of Nursing objected to the entire complaint/cause of action, arguing that the trial Court did not have jurisdiction and the complaint itself did not state a cause of action for which any remedy existed. The Court reviewed the State Due Process clause and concluded that Poskin’s argument had no place in a judicial court; rather, sufficient procedural safeguards exist in the State administrative procedures code for Poskin to seek redress there. However, because Poskin sought to have the Court compel the Board to change its administrative procedure, his claim was more of a Mandamus action for which the court had no ability or jurisdiction to entertain.

The Court emphasized the fact that Poskin did not update his address for over twelve months, causing his own contravention of the regulations which were properly promulgated and in effect. The result was that Poskin’s case against the Board was dismissed, his prior disciplinary record was not expunged, and he spent even more money on counsel fees. All of this conduct was potentially precluded merely by keeping up to date on all board registered license addresses and notifications so that no license is lost or disciplinary action taken due to mere inadvertence.  Use email addresses, maintain diligence of notification telephone numbers, and, by all means, keep addresses updated.

Strip Searches in Pennsylvania

This blog shall review the legality of body cavity searches in light of a recent case discussing the issue. Typically employed as a result of either highway traffic investigations or specific, fact-based search warrants, the courts are approving of this search mechanism more and more.

The recent case of Commonwealth v Martinez, 2013 Pa. Super 102 (May 2013), highlights the typical fact pattern and legal issues. Martinez was identified by a confidential source “CI” as a heroin supplier to be picked up in Lancaster and transported to Chester County to deliver heroin. The CI identified the location of Martinez’ pick up, the car in which he would be traveling, and was provided the buy money to purchase the drugs from Martinez.  All of this information was attested to in an affidavit in support of a search warrant to stop and search the vehicle in which Martinez and the CI were traveling.  The state troopers handling the case executed the search warrant by initiating a specious motor vehicle traffic violation stop on the vehicle and its occupants on the PA Turnpike, in Chester County.  The car was searched, but no heroin was found. Martinez was taken back to the State Trooper barracks, where he was subdued, tazered, and forced to submit to a strip search, which revealed over 14 grams of heroin. At trial, Martinez filed a motion to suppress, which was denied. After a non-jury trial, Martinez was found guilty of Possession With Intent to Deliver and was sentenced to 5-10 years in state custody.

On appeal, Martinez contested the legality of the strip search and the factual basis supporting the warrant to search a specific person versus the place where that person may be found. In rejecting Martinez’ argument, Superior court reviewed federal and state court cases addressing legal strip searches. The court held that searching naked individuals was less of an important fact than the extent of the search techniques employed. The appellate court was more impressed with the regularity with which drug dealers secret their booty in or on their persons, thereby warranting the strip search, as compared to tazing an individual and removing his clothes with force and penetrating his body under the auspices of an approval from a magistrate to stop the drug trade. The appellate court did not consider that the entire drug transaction was set up by the government’s confidential source for the purpose of arresting Martinez, the alleged source of the drugs.

Because the state troopers in Martinez set up the drug buy, all facts in the warrant were known to them, set forth with precision in the warrant, and magically testified to with remarkable clarity and consistency at the suppression hearing. Finding that all of the facts “matched and supported” a conclusion under the totality of the circumstances, that drugs would be found in the car or the vicinity of where Martinez was sitting, even though none was found, both the trial and appellate court found sufficient probable cause existed which support both the warrant and search of Martinez’ naked body, which was in the vicinity of the place to be searched. The courts found the search, conducted in private by a trooper of similar gender, was not malicious and supported the state’s interest in securing evidence of criminal activity.

Significantly, the the trial and appellate courts sanctioned strip searches conducted with the level of invasion and penetration reasonably necessary to uncover the contraband that was alleged to be present in the search warrant. This conclusion is disturbing in that it authorizes police investigations to proceed to any level of invasiveness when an investigator says drugs will be present and claims to know such, therefore they are there, so we must search everywhere to find them. It’s the old sociological term “self-fulfilling prophecy.” Privacy interests and personal dignities give way to the overriding interest of the state to investigate, find, and prosecute all persons engage in the illegal drug trade. Call me to discuss the legality of your strip search or body cavity search.

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