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.


Good Moral Character? Moral Turpitude?

What is moral turpitude? What is good moral character? These questions arise in cases contesting a disciplinary action based upon a conviction of a misdemeanor or felony and in applications for reinstatement of a professional license after revocation. How does one prove that they are both a person of moral character and posses the moral turpitude that warrants either reinstatement or no disciplinary action?

Every licensing scheme possesses a provision allowing that licensing board to revoke or cancel a license when a licensee is found guilty of a felony charge or an felony or misdemeanor offense in conjunction with the practice of that license, or found guilty of conduct involving moral turpitude by court of competent jurisdiction or a jury. Moral turpitude is not defined in any of the licensing acts.  The Pennsylvania Supreme Court routinely defines moral turpitude to mean anything done knowingly contrary to justice, honesty, or good morals.  The terms good moral character and the lack of moral turpitude are used interchangeably to define each other in many cases.  ‘Fraud’ certainly has acquired a peculiar and appropriate meaning in the law. Black’s Law Dictionary 594 (5th ed. 1979) defines fraud as any kind of artifice employed by one person to deceive another.

In a March 2015 case, an individual convicted of 3rd degree murder, who served 10 years of a 10 year sentence, sought reinstatement of his podiatric license. He presented character witnesses, proof of some rehabilitative efforts, and efforts to maintain up-to-date on podiatric medicine continuing education requirements. The board rejected his application for reinstatement, concluding he had not presented sufficient evidence of rehabilitation and did not present sufficient remorse. Long v. Bureau of Prof’l & Occupational Affairs, 2015 Pa. Commw. LEXIS 130, (Pa. Commw. Ct. 2015).

Many cases state that the petitioner seeking reinstatement carries the burden of proof in establishing that they meet all of the licensure requirements for reinstatement. The pivotal issue on these types of cases, both for reinstatement and contesting disciplinary action, is what efforts were made by the licensee to rehabilitate their character such that they now or still possess good moral character to be trusted to hold a license at the time of reinstatement or disciplinary action. Garner v. Bureau of Prof’l & Occupational Affairs, 97 A.3d 437, 440, 2014 Pa. Commw. LEXIS 391, 5-7, 2014 WL 3734280 (Pa. Commw. Ct. 2014)

In reviewing the evidence a petitioner presents demonstrating good moral character, character witnesses, post jail release behavior, and the delay in time between criminal event and application for reinstatement are not enough. Proof of sufficient rehabilitation does not just include attending victim counseling, religious services, and paying restitution. Krichmar v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 850 A.2d 861, 864 (Pa. Cmwlth. 2004), requires clear and credible expressions or evidence of remorse and corrective community action. Lack of remorse itself is a sufficient basis to deny reinstatement. Storch v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 751 A.2d 263, 264 (Pa. Cmwlth. 2000).

Shallow and unimposing claims of entitlement to reinstatement that show little remorse for the victim of the crime will not carry the day. Licensing boards look for individuals to rehabilitate their character through established patterns of behavior that are honorable, trustworthy and consistent with the communities’ current ethical standards that show an absence of moral turpitude. The “determination of whether a crime involves moral turpitude turns on the elements of the crime, not on an independent examination of the details of the behavior underlying the crime.” Licensing boards will not re-litigate the facts underlying the criminal conviction.

Character witnesses must base their conclusions of an applicant’s credibility upon factual interaction and consensus amongst a large group of individuals. Bringing to a hearing just the respondent/applicant’s immediate social or family circle will not carry the day. Employment related job evaluations and supervisors and coworkers who may provide the Board with significant and weighty testimony about the applicant’s established pattern of honorable and trustworthy behavior consistent with current community ethical standards is a priority in the evidence presented.

Call me to discuss your disciplinary action or attempts at reinstatement of your professional license.

Police Search Trash and Secure Evidence for Trial -Suppression Denied

Depending from where a homeowner’s trash is removed and what arguments are raised on suppression, evidence derived from these trash pulls is admissible in court. Commonwealth v James, 2013 Pa. LEXIS 1096 (May 31, 2013) evidences when inexperienced counsel make incorrect arguments which allow the Commonwealth to fix their otherwise faulty case, your better off with trained legal counsel.

On April 11, 2007, based upon an anonymous tip, police search the garbage from Darrell Tyrone James PA residence, discovering drug paraphernalia, marijuana and cocaine residue. We do not know from where the trash was pulled.  The police investigation further reveals James’ five prior narcotics arrests and one firearms violation conviction. A confidential informant (“CI”) subsequently told police James was selling drugs from his house. Police surveillance was conducted, revealing individuals coming and going from the residence in brief increments of time and several vehicles pulling up in front of the residence. No drug buys were witnessed or staged with a CI. On April 19, 2007, police conducted a second trash pull of James’ garbage, discovering more drug paraphernalia and residue.

Based upon this information, an affidavit of probable cause is drafted to secure a search warrant to search the residence. James was arrested after the search revealed guns and drugs. James files a Motion to Suppress, arguing the affidavit did not specify from where the trash was actually taken when the police seized it. If the trash was on the curb awaiting collection, it was abandoned, and police could lawfully search it without a warrant; if it was on James’ porch, he retained a privacy interest in it, and the trash pull was unlawful.

The trial court granted suppression due to the factual omission of from where the trash was taken. The Commonwealth argued for reconsideration claiming that because James contested the truthfulness of the allegations in the affidavit, and not just the legality warrant based upon the facts as stated, the suppression court was permitted to receive additional evidence outside of the warrant’s four corners. The trial court reconsidered its ruling and permitted the Commonwealth to augment the affidavit of probable cause with testimony outside the four corners of the warrant. This is a significant procedural fact.

What evidence a judge issuing a search warrant may consider is set forth in Pennsylvania Rule of Criminal Procedure 203. There, that rule, the James Court held, plainly states the issuing authority may not consider evidence outside the affidavit in making the probable cause determination, and the suppression court, in reviewing this determination, may only consider the affidavit. However, since 1973 the Pa Supreme Court has also held that a defendant has the right to test the veracity of the facts recited in the affidavit in support of probable cause. Commonwealth v. Hall, 302 A.2d 342, 344 (Pa. 1973).

In Hall, the court stated, “‘To rule otherwise, would permit police in every case to exaggerate or expand on the facts given to the magistrate merely for the purpose of meeting the probable cause requirement, thus precluding a detached and objective determination.'” Id. (quoting Commonwealth v. D’Angelo, 263 A.2d 441, 444 (Pa. 1970)). Accordingly, our Supreme Court has concluded the defendant “at the suppression hearing should have been afforded the opportunity through ‘the traditional safeguard’ of cross-examination, to test the truthfulness of the recitals in the warrant[.]”

This is a Frank’s hearing in federal court, based upon the case of Franks v. Delaware, 438 U.S. 154 (1978), which addressed whether a defendant has the right, under the Fourth and Fourteenth Amendments, to challenge the truthfulness of factual averments in an affidavit of probable cause. After a defendant makes a substantial preliminary showing the affiant knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the affidavit, the Fourth Amendment requires a hearing be held at the defendant’s request.

The issue in James became when a defendant in state court challenges both the factual averments in the affidavit and the legality of the affidavit, may the Commonwealth present additional evidence at the suppression hearing upon which the court may rely in rendering a decision. The James Court said yes.

Because the procedural rules specifically require a defendant to state all of his/her basis for suppression, thereby giving the Commonwealth notice of what police behavior it is defending, the Commonwealth typically presents evidence of the affiant at the suppression hearing. Cross-examination may reveal lies, ambiguities, and factual divergences between the testimony and the affidavit as drafted. However, the suppression court is permitted to look at the totality of the circumstances presented in the warrant and to which the officers testified, in conjunction with weighing the credibility of the officer’s testimony, to render a conclusion on the factual and legal validity of magistrate’s action of approving the warrant.

The import of this case is simple: be careful of the legal basis for the relief you seek in court. Had counsel simply argued the four corners motion without alleging officer credibility and lies (a federal Frank’s motion) then the court is only permitted to consider the warrant, which was facially deficient and suppression would have occurred. Once, counsel alleged officer fabrication, the Commonwealth was able to augment the warrant and present its officers testimony at the suppression hearing, which testimony the court properly considered in denying the Motion to Suppress.

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.

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