Recreational Marijuana is NOT Legal in Pennsylvania

“Over the past several years, nearly half of our Sister States and this Commonwealth have legalized medical marijuana. Some States have also repealed their prohibitions against recreational use; Pennsylvania has not.  A recent case emphasizes this point.

In this appeal, John Batista makes the novel argument that, because marijuana is now medically available in Pennsylvania, police officers may no longer rely upon its smell as a factor for developing probable cause. Like the trial court, we reject this theory. In certain instances, the smell of marijuana may still indicate that a crime is afoot, because the growth, distribution, possession, and use of marijuana without a state-issued permit remains illegal. Thus, the magistrate had a substantial basis to issue a search warrant for Batista’s garage, and we affirm the order denying suppression.”

Commonwealth v. Batista, No. 1130 EDA 2018 (PA. Super. September 27, 2019).

http://www.pacourts.us/assets/opinions/Superior/out/J-S42023-19o%20-%2010415891078797439.pdf?cb=1

IMPAIRMENT PROSECUTIONS – SAFE TO PRACTICE- FULL SUSTAINED REMISSION

Alcohol abuse, prescription pain medicine abuse, sleeping pill abuse, Adderall and ADHD medication abuse. Medical providers suffer from these disorders. However, if you go to work every day and professionally perform your care giving responsibilities should you voluntarily admit an impairment and go into the voluntary recovery program? NO
I tell my clients that unless until you are unable to safely perform your profession, as a medical professional you should never admit an impairment and/or an inability to practice safely. Admitting these fundamental facts could, in the long run, substantially impact your career.
Pennsylvania’s appellate courts are pushing back against the health related boards forcing and pushing practitioners in the PHMP drug and alcohol mandatory monitoring program. For a long time Pennsylvania’s health related boards scare professionals into admitting an impairment an inability to safely practice their profession to save their license. For many professionals, the PHMP, PHP, PNAP SARPH program was not legally or medically necessary and its restrictions too great.
The Courts are remind the boards and the experts they hire that if the license professional practices safely and there is no evidence of patient impact or safety issues, the Commonwealth cannot meet its burden of proof in these impairment cases.
In my recent case, my client plead guilty to two separate DUI offenses. One DUI was for drugs and one DUI was for alcohol. Both abuses stemmed from a medical injury and a psychiatric condition. In criminal court, the professional admitted his need for inpatient treatment. He was sentenced to county drug court, with 45 weekends (90 days) in custody. He was paroled to a drug treatment court, county certified halfway house in which he lived for two years.
The Petition for a Mental and Physical was filed while he was serving his weekend sentences. The Board expert’s report stated the obvious, he was impaired and needed monitoring. My client had nothing to lose. The Board would not offer his credit for time clean and on drug court. So, we fought the case.
Procedurally, we rejected a settlement agreement and waited for formal disciplinary action. That was the settlement offer — enrollment in the DMU. We waited for a hearing to be scheduled. My client remained clean, compliant with treatment conourt conditions, and was a model treatment court advocate. He was employed for the half-way house.
At the hearing, we presented proof of 36 months of negative drug tests and excellent employment references. Significantly, the professional was a nursing burn specialist. He remained employed throughout the entire course of the criminal case defenses, while serving his weekend criminal jail sentence, and living in a halfway house. He was given work release as well. As with every medical professional that fights the impairment prosecution, he remained employed while preparing for the Mental and Physical Evaluation, waiting for disciplinary action to be filed, a hearing scheduled, and the recent decision.
This is the employment history I introduced into the hearing record. The Hearing Examiner thought it was exceptional that throughout my client’s pending criminal cases his employer wanted and allowed him to keep working. The job references were stellar. The Board expert had to agree.
The decision recited these key factors that the Nursing Board’s expert conceded on the witness stand. The expert could not testify that my nurse client was unsafe to practice his profession. The expert also conceded 36 months of negative drug screens revealed the alcohol and drug use disorders were in full sustained remission.
The hearing examiner concluded the Commonwealth did not meet its burden of proof. The Commonwealth could not establish an ongoing, continuing alcohol, drugs, or medical condition that impaired my nurse clients ability to practice his profession. As well, The hearing officer credited my nurse’s employment references, annual job evaluations, and employer testimony come to conclude that he was, in fact, safe to practice.
Absent these two crucial elements in the Commonwealth’s case in chief, my nurse client is not required to go into the PHMP, PNAP monitoring program. This case is a perfect example of why medical professionals should never admit an impairment or inability to practice their profession. The time delay between criminal charges, mental and physical evaluations, and a formal hearing allows the medical professional to organize their life, prepare their defense, and successfully fight their case.
Call me to discuss.

%d bloggers like this: