Social Media — Facebook, Instagram and State Licensing Board Prosecutions

Social media and the advent of voluntary public display of everything is starting to affect Pennsylvania’s professional licensing board investigations.  For the last ten years I have consistently represented client’s under investigation for drug diversion and theft.  These cases typically stem from hospital and nursing home based investigations.  A new twist in the investigatory practices of these cases has emerged.
It is important to realize how state board investigators are now utilizing social media as an investigatory tool.  Voluntary picture posts on Facebook, Instagram, or other websites will are now used as the professional’s own statements. Facial recognition software identifies and attaches names to various people in most photographs.  Aspiring and licensed professionals should pause when choosing which if any photographs to post or in which they are included that others are posting. This should give you the professional great concern.
Pennsylvania’s Department of Attorney General, Bureau of Narcotics Investigations (BNI) and licensing board investigators have begun to search social media for names, addresses, the identity of complaining witnesses, and/or information to aide their criminal and licensing prosecutions.  Investigators are learning —  through a target’s own social media self-promotion — the target’s social activities, accomplices, associates, friends, and favorites hang outs.  Many witnesses that would otherwise never be found are located, interviewed, and intimidated.
As well, during a client’s recent Nursing Board Mental and Physical Evaluation, the western Pennsylvania based psychiatrist asked my nurse client of her social media participation. This psychiatrist revealed he had searched Facebook, Instagram, and other social media outlets in preparation for the psychiatric drug impairment evaluation. The doctor sought evidence to confirm and corroborate my client’s statements during her evaluation about her social activities and drinking tendencies. The psychiatrist sought photographic and statement evidence which could reveal my professional client’s evaluation statements may have been inconsistent with social media and/or statements is medical records to her doctors.

Credibility is the most important piece of evidence in an independent medical examination and at a licensing application or disciplinary hearing.  The witnesses I  present at a licensing hearing (live, via telephone, or in a letter) corroborate and strengthen my professional client’s reputation, character, and credibility.
Photographs of social celebration in the context of disciplinary hearings based upon accusations of drunk driving or drug and alcohol impairments constitute important cross-examination evidence.  When a professional voluntarily hands to a psychiatrists, criminal or licensing board investigators evidence against them (or life style pictures that may poorly depict that licensee) it makes my defense harder and the prosecutor or psychiatrists impairment investigation easier.  DO NOT DO THIS  TO YOURSELF.
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Serious Medical Conditions according to Pennsylvania’s Medical Marijuana Law and How They Relate to Medical Professionals

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Pennsylvania began the legalization of medical marijuana with specific limitations on the medical conditions for which a practitioner can issue a prescription for medical marijuana (“MM”).   Act 16 of 2016, Section 403 (a) – Conditions for issuance – allows a physician to certify medical necessity only if all of the following requirements are met:

(1)  The practitioner has been approved by the department for inclusion in the registry and has a valid, unexpired, unrevoked, unsuspended Pennsylvania license to practice medicine at the time of the issuance of the certification.

(2)  The practitioner has determined that the patient has a serious medical condition and has included the condition in the patient’s health care record.

(3)  The patient is under the practitioner’s continuing care for the serious medical condition.

(4)  In the practitioner’s professional opinion and review of past treatments, the practitioner determines the patient is likely to receive therapeutic or palliative benefit from the use of medical marijuana.

The regulations define Serious medical condition as:

 (i) Cancer.
 (ii) Positive status for Human Immunodeficiency Virus or Acquired Immune Deficiency Syndrome.
 (iii) Amyotrophic lateral sclerosis.
 (iv) Parkinson’s disease.
 (v) Multiple sclerosis.
 (vi) Damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity.
 (vii) Epilepsy.
 (viii) Inflammatory bowel disease.
 (ix) Neuropathies.
 (x) Huntington’s disease.
 (xi) Crohn’s disease.
 (xii) Post-traumatic stress disorder.
 (xiii) Intractable seizures.
 (xiv) Glaucoma.
 (xv) Sickle cell anemia.
 (xvi) Severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain in which conventional therapeutic intervention and opiate therapy is contraindicated or ineffective.
 (xvii) Autism.

For the medical licensee seeking a medical marijuana card, the significance of these medical conditions cannot be understated.  A Pennsylvania medical licensee (nurse, doctor, dentist, and all others)  will have to suffer from a serious medical condition.  A referring medical marijuana practitioner  will have to certify the professional licensee’s serious medical condition necessitates marijuana for therapeutic or treatment reasons.  The practitioner will have to perform a completed and full assessment of the patient’s medical history and current medical condition, including an in-person consultation with the patient.  Reviewing the prescription drug monitoring history of that patient/licensee will also be necessary.

A MM practitioner will have to credibly determine that imminent disability is present, warranting therapeutic medical marijuana as all other drugs have or are failing.   Well, if the medical professional is disabled, they can not do their job.  If they are high on medical pot, the Boards think these licensees probably should not be permitted to practice their profession.

The burden of proof in disciplinary cases involving drugs or alcohol is whether the licensee suffers “from a drug or alcohol addiction or impairment or a medical condition that renders them incapable safely practicing.”  If a medical licensee’s MM practitioner suggests to the Department of Health the licensee is medically disabled to a degree that requires the therapeutic use of medical marijuana, a medical record has been generated stating the licensee is almost medical disability from practicing their profession. The medical impairment burden, it could be argued, has been met.

Conversely, if the medical licensee is prescribed medical marijuana (but not disabled), the use of medical grade marijuana renders the licensee under the influence of drugs or alcohol to such an extent that renders them in capable of safely practicing.  This logical reasoning jump  — using marijuana automatically renders one unsafe the practice — is found in other provisions of Pennsylvania law.  Those include the Drug act and Pennsylvania’s DUI statute.

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Pennsylvania’s DUI statute, 75 Pa. C.S.A. §3802(d) provides for legal intoxication if the mere presence of marijuana is in one’s bloodstream.  (Pennsylvania is not a drug recognition state where the prosecutor has to put into evidence testimony from a drug recognition expert, a “DRE”, that the level of marijuana in somebody’s blood renders them under the influence and incapable of safely driving.)  Pennsylvania is a per se violation state.  This means that the legislature has determined as a matter of policy, that any marijuana or other schedule II prescription medication in a person’s blood, renders that person automatically incapable of safely driving.

It is not a hard legal argument to suggest that if you can not safely drive because you are high on pot (any amount), the medical professional can not perform their medical  duties because they are high on pot.  Here is where the confidentiality provisions of the Act are important.   Section 301(A)(4) of the Act establishes an electronic database to include activities and information relating to medical marijuana organizations, certifications and identification cards issued, practitioner registration and electronic tracking of all medical marijuana as required under the Act.

Section 301(B)(a) allows for confidentiality of Patient information.–The department shall maintain a confidential list of patients and caregivers to whom it has issued identification cards. All information obtained by the department relating to patients, caregivers and other applicants shall be confidential and not subject to public disclosure, including disclosure under the act of February 14, 2008 (P.L.6, No.3), known as the Right-to-Know Law, including:

(1)  Individual identifying information about patients and caregivers.
(2)  Certifications issued by practitioners.
(3)  Information on identification cards.
(4)  Information provided by the Pennsylvania State Police under section 502(b).
(5)  Information relating to the patient’s serious medical condition.

My concern is that these provisions in conjunction with other Pennsylvania rules and regulations will be employed against the medical professional who seeks and secures a medical marijuana card.  Your doctor must provide this information to the Department of Health.  If pot is found in a medical licensee’s blood, getting the medical records from their doctor (who will be discovered through the data base) is very easy.  Or, the licensee will be compelled to identify and provide their MM practitioner and his records at a Board ordered evaluation.

My experience in Pennsylvania’s heightened enforcement environment strengthens my conviction on this point. Currently every single DUI, workplace positive drug test, or other minor legal infraction is generating Board ordered mental and physical evaluations. The Boards are getting ready for a waive of intoxicated professionals.  They are gravely concerned for the well being of the Commonwealth’s citizens.  The Boards figure, get any current licensee help, stripped of their license, or at least in the Board’s radar so that when that licensee starts legally or illegally getting high and they learn of it they will be ready.   Any issue that brings the medical professional – high on legal Pennsylvania medical pot – to their respective Board’s attention will become the subject of a targeted enforcement scheme to strip their license.

 

Call me to discuss your medical condition, medical needs, and how to proceed.

 

 

 

Northampton County’s 1861 Court Room!!

Finding the diamond in the rough. That describes my recent drive to the Northampton County Courthouse. As my law practice takes me from the Philadelphia’s suburban counties to northeastern Pennsylvania, I routinely travel on the Pennsylvania Turnpike and its Northeast extension.
The drive this July week was rough. The weather forecast proved accurate; rain and fog through the Lehigh Valley. It was raining so hard, I missed my exit off Rt 476E at Rt 22 E. I drove an additional 20 miles each direction, turning around in Jim Thorpe. (I love the Carbon County Courthouse – see my other blogs – but I was not going there today.)
 I was uncharacteristically late, arriving at 9:25 am for a 9:00 am hearing.  I was otherwise safe.  The judge was extremely gracious and polite. The case was handled quickly.  Opposing counsel – a local assistant district attorney – offered a tour of the courthouse as I expressed my appreciation for our hearing taking place in the old courthouse, courtroom 3, as compared to the new 2004 building.
The county website states, “The original court house was built in  1764. Nearly a century later and after the courthouse had experienced a number of historical events, which included being used as a barracks by Revolutionary troops, a group of citizens petitioned for a new County Courthouse at a different location. On August 23, 1860, the County Commissioners decided to accept land offered at a price of $1.00 that was located several blocks west of the original facility.   A new brick structure was later built on a steep hill at a cost of $53,000. The first term of court was held in the new facility on June 18, 1861.  Since then, two additional wings were constructed to accommodate the growth of Northampton County and satisfy the judicial needs of the expanded population.  The second part of the courthouse was built in 1978 and the third in 2004. “
I was interested in the 1861 building and court room 1.  Finished at the out set of the Civil War.   Wow!! A majestic legal theater, refurbished in 1978 to match the import to the community when the courthouse was built. Original woodwork, plaster, and paint are renewed. County Commissioners rightfully chose to not clutter the court room with of a phalanx of computer cables, microphones, and other modern day accoutrements that clutter some other county courtrooms in which I practice.
The pictures below reveal the courtroom’s grand entrance, judicial bench, and the jury box of the times. The remarkable woodwork and attention to detail immediately reveals itself. The artisans of Pennsylvania’s counties knew their work would be on display at every important and public event of the times. The honor and respect they earned working for their local government on the most important building in the county.

Road Riding in the Counties

My personal and business travel is taking me to more counties throughout the Commonwealth of Pennsylvania than ever before. The local courthouse houses in the county seats are really interesting for me. The court houses — arenas of legal combat — are throw backs to more glorious days when the local big trial was the event of the year.
In the past I took for granted these architectural gems that are spread throughout the various townships and boroughs within which I practice.   Now, I seek out and explore the courthouses. Whether by car or bike, I am having fun.
This spring I bought myself a road bike. I ride ferociously around the eastern part of Pennsylvania. I have the pleasure of routinely riding through Philadelphia,  Conshohocken, Norristown, and Valley Forge Park. All are within 5-15 miles of my house.  Sometimes I ride from my house to Philadelphia and back.
A recent Saturday took me on a further ride — from West Chester to the City of Lancaster. The road ride began in West Chester and ended in Lancaster County, behind the Court House. We departed West Chester through its southern rolling-hills of Brandywine Township. We followed Brandywine Creek through East Bradford Township, Downingtown  to West Fallowfield Township. One word — marvelous.
After 90 minutes the group ride, with me at the back of the pack, entered Lancaster County. I was greeted by signs for farm fresh brown eggs, personally constructed homes, garages, sheds, and wonderful antique tractors.
Tractors, tractors, tractors. But not your ordinary tractors.  These were green, yellow and red tractors, pulled by horses. The drawn mowing tractors were hard at work, gas free, mowing lawns and fields. Some tractors were too tired to work, gathering rust. There was no worry about rubber tires rotting. Metal wheels needed no repairs.
The morning aromas changed with each turn in the road. Pungent cow, horse, pig dung awoke my sinuses.  Crushed wild blackberries and dripping vines of honeysuckles permeated homesteads. The morning dew clung to grass blades and tree branches through the Brandywine Creek bike route. Entering Lancaster and riding down Duke Street brought with it fresh bakery smells and the Lancaster County brewing Company.
In each county seat, I look for a small coffee shop. Lancaster’s Prince Street Café did not disappoint. The fresh cappuccino after a 50 mile ride awakened all of my exhausted senses. Orange juice and fresh eggs on a croissant made me even happier. The pictures below reflects the quaintness of the café and the wonderful effort the bakers and barista’s gave the Saturday morning breakfast crowd.
An unexpected joy came as I began to get ready for my drive home. Just to the west of the Prince Street Café is the Lancaster County Donuts Shop. Homemade donuts and holes are sold with every conceivable topping — as if I was in an ice cream shop — tantalized my taste buds. The sublime chocolate with vanilla cream cheese frosting carried me through the rest of my day.
I could not have been happier. Content and satisfied by a hard work out, great ride with new friends and a bulging stomach.  Blair and Clearfield counties also did not disappoint. I’ll keep you posted.

My County Practice – The Licensee Attorney on the Road

It is a cool, crisp 78° as I gander at the Pennsylvania Turnpike’s Blue Mountain and Kittatinny tunnels cutting through the middle of Pennsylvania. It’s 95° and 100% humidity in Philadelphia. The Blue Mountain Tunnel is one of two tunnels through Blue Mountain in Pennsylvania, located west of Newburg. It is one of seven tunnels completed for the Pennsylvania Turnpike mainline, … The Blue Mountain Tunnel is 600 ft (180 m) to the east of the Kittatinny Mountain Tunnel, separated by the Gunter Valley.

As I drive through these Pennsylvania mountains, including the tunnel at Tuscarora Mountain, I marvel at Pennsylvania’s endless greenery. Towns such as McCalloch, Lynnsburg, Sheepskin Hollow, and Mount Union dot the landscape but are surrounded by majestic trees and forests..

On Route 99 I snake through the mountain passes of Blair County. Smoke screened with early morning fog, panoramic views give way to county towns spread along the Juanita and Little Juanita River valley. Route 99 was carved out of the Lock Mountain. Its rolling hills provide necessary access to the historic railroad town of Holidaysburg. Local roads are named after long since passed farm owners who settled this area. Canoeing ramps, hiking and biking trails shunt off from the many state park.

Driving up Bald Mountain, through Phillipsburg, I left Tyrone behind. I scamper up Bald Mountain, through the pass, on the way to Clearfield County. Route 350 welcomes me with Victorian style homes. Phillipsburg is a brief one  light hamlet. Leaving Phillipsburg, I approach the Upper Susquehanna River and Clearfield Creek. Here the rolling mountains roads are dotted with roadside homes, businesses, and flow slowed by summer road construction.

Arriving in Clearfield County I am surprised by the size of the borough. I am taken aback at the age of the courthouse. Pictured below, its courthouse is regal, sturdy and welcoming.

 

 

 

 

Pennsylvania’s Accepts the Interstate Medical Licensure Compact Act

Pennsylvania has finalized its membership in the Interstate Medical Licensure Compact Act.  Found at 63 P.S. §395.2, the General Assembly authorizes the Governor to execute the Interstate Compact for Medical Licensure of non-Pennsylvania based physicians.  As I wrote previously last summer, the proposal substantially strips Pennsylvania medical licensees of many due process rights.

Pennsylvania based physicians who seek licensure in member states become subject to those jurisdictions’ criminal and disciplinary process, investigations and actions.  My prior blog addresses the significant pit falls of that process.  Reviewing the definition section of the enabling legislation (which is a nationwide standard set of definitions and procedures) helps understand how and why Commonwealth Pennsylvania physicians seeking multi-state licensure are at substantial exposure to extra jurisdiction disciplinary action without the many protections of Pennsylvania’s administrative due process.

A physician’s medical license, granted by a member state to an eligible physician, is subject to this new law’s legal definitions. First and foremost is the definition of conviction of any type of criminal act. Conviction means: a finding by a court that an individual is guilty of a criminal offense through adjudication, or entry of a plea of guilt or no contest to the charge by the offender. Evidence of an entry of a conviction of a criminal offense by the court shall be considered final for purposes of disciplinary action by a member board.  Potential criminal acts — any “Offense” means: a felony, gross misdemeanor or crime of moral turpitude.

At issue for Pennsylvania and/or New Jersey doctors is the difference in criminal versus administrative matters.  A DUI in Pennsylvania is criminal versus New Jersey it is administrative.  There are many matters in Pennsylvania that result in a summary resolution, not a felony and misdemeanor conviction.  What is a gross misdemeanor?  The Act does not differentiate.  In Pennsylvania, criminal charges are brought after a  preliminary hearing.  Many states proceed by indictment.  The Act does not distinguish enrollment in a non-conviction based diversion program.  How difference states render disciplinary action based upon different standards of conduct (from that of Pennsylvania Medical Board) and resolution – which each member state will now have to unilaterally accept – is significant.

These huge differences apply to all physicians.  Who is a physician.  Physician under the Act means a person who:

1. is a graduate of a medical school accredited by the Liaison Committee on Medical Education, the Commission on Osteopathic College Accreditation or a medical school listed in the International Medical Education Directory or its equivalent;
2. passed each component of the United States Medical Licensing Examination or the Comprehensive Osteopathic Medical Licensing Examination within three attempts or any of its predecessor examinations accepted by a state medical board as an equivalent examination for licensure purposes;
3. successfully completed graduate medical education approved by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association;
4. holds specialty certification or a time-unlimited specialty certificate recognized by the American Board of Medical Specialties or the American Osteopathic Association’s Bureau of Osteopathic Specialists;
5. possesses a full and unrestricted license to engage in the practice of medicine issued by a member board;
6. has never been convicted, received adjudication, deferred adjudication, community supervision or deferred disposition for any offense by a court of appropriate jurisdiction;
7. has never held a license authorizing the practice of medicine subjected to discipline by a licensing agency in a state, federal or foreign jurisdiction, excluding an action related to non-payment of fees related to a license;
8. has never had a controlled substance license or permit suspended or revoked by a state or the United States Drug Enforcement Administration; and
9. is not under active investigation by a licensing agency or law enforcement authority in a state, federal or foreign jurisdiction.

 

Licensees must identify a state of primary licensure.  That state will verify eligibility, conduct background checks, and maintain fingerprint and biometric data. However, these investigations and parameters are set through federal regulations, and not individual state law. Expedited licensure issued by the central processing state makes that interstate commission more powerful than the individual primary state. The interstate license is limited to a specific period of time in the same manner as required for the physicians holding a full unrestricted license within that state. And expedited license obtained through the compact shall be terminated if the physician fails to maintain a license in the state of principle licensure for a non-disciplinary reason, without re-designation of a new state or principle licensure.

Because there’s a coordinated information system, Pennsylvania’s law allows member boards to report to the interstate commission any public action or complaints against a licensed physician who has applied to receive the expedited license through the compact. Member boards report disciplinary or investigation information and determine if it is necessary and proper basis for disciplinary action by the interstate commissions. Member boards may report any non-public complaint, disciplinary or investigative information to the commission. Member boards will share complaint or disciplinary information.. This means even the most minimal initial disciplinary investigatory claims, unfounded, without final disciplinary decision, by a member state is automatically reported to the entire commission. Disciplinary action from the commission, not an individual state jurisdiction, could be the basis for disciplinary action. How does the physician defend himself or herself against this.

The Act specifically says “any disciplinary action taken by any member board against a physician license through the compact shall be deemed unprofessional conduct which may be subject to discipline by other member boards, in addition to any violation of the medical practices act or regulations in that state. Such a disciplinary action by one state may be deemed conclusive as to a matter of law in fact, allowing the member jurisdictions to impose the same or less or sanction or pursue a separate disciplinary action against position under its respective medical practices act, regardless of action taken and other member states.

 

Call me about your license application, conditional approvals, of pending discipline.

A Harsh Disciplinary Enforcement Environment for Pennsylvania Licensees

I write this blog in preparation for a Pennsylvania Nursing Board ordered Mental and Physical Examination (“MPE”) of a client.   It is startling the number of these board ordered evaluations or PHMP/PHP/PNAP assessments due to some type of licensee criminal conduct.  The heightened disciplinary activity among all boards reveals a much stricter atmosphere of licensee disciplinary enforcement.  Why?
Pennsylvania’s heightened disciplinary environment is based upon a single legislative occurrence and a single judicial decision.  Legislatively, passage of Pennsylvania’s medical marijuana regulatory scheme has prompted a review of all licensing laws in anticipation of increased licensee impairment and criminal activity due to marijuana usage (legal or not).
A prime example of this is Senate Bill 354 of 2017.  I wrote about this bill last week.  This bill seeks to compel any licensee charged with a crime (not convicted) to report such to their respective licensing board within 30 days of arrest.  Failure to report will constitute a separate basis for discipline.  This Bill seeks to bring the boards’ immediate knowledge of licensee’s criminal conduct so discipline can commence sooner.
Pennsylvania’s licensing boards subscribe to JNET – Pennsylvania’ criminal fingerprint data base.  The Boards already know of licensee’s criminal charges of which they already expect them to report upon conviction.  However, the Boards now want quicker reporting, with an additional and stronger basis for discipline.  False reporting and failing to report criminal conduct!!
But this bill is not not law.  So what’s the juice?  The juice is that current licensee’s facing disciplinary action for some really minor issues will think twice before smoking pot; they will tell their friends and co-workers to think twice before smoking pot and taking care of the public.  The health related boards are gearing up prosecutors for stricter supervision of all licensees.  In this conservative jurisdiction, pot is thought to be a gateway drug to heroin.  The prescription based opiate epidemic caught the health related boards with their pants down.  It will not happen again with the passage of medical marijuana.
The enforcement environment also extends to potential licensees enrolled in any health related school who apply for licensure with a criminal history of one or two DUI’s.  I represent many individuals whose licensure applications have been stalled based upon conditional denials and compelled PHMP enrollment.   A new regulation requiring  license applicants to be licensed within 12 months of taking their board examinations aides the Board in weeding out potential applicants who do not accept PHMP enrollment.
DO NOT go willy-nilly to the PHP/PHMP assessment and or evaluation with the expectation that you will pass and be given your license.  DO NOT answer the personal data sheet with out consulting an attorney.  DO NOT talk to the PHMP intake or assessors without attorney preparation.  They write everything down — your story of depression, injured or dead family members, your divorce, your child abuse history.  The PHMP people will always recommend enrollment in the VRP after you, the new licensee, admit your mental health treatment, drug use, and inability to practice safely.   How can you admit you can not practice safely if you have never practiced?  Applicants fighting their cases must be patient and call me ASAP. 
The Birchfield decision (written about in other blogs) is the judicial decision most affecting disciplinary actions.  Birchfield focused on the admissibility of blood alcohol levels as a result of a non-consensual blood draw in a DUI investigation. This case has rippled through every Pennsylvania county’s drunk driving enforcement efforts.  Birchfield ruled inadmissible DUI blood evidence that revealed drugs (illegal or prescription) and/or marijuana use.
Birchfield rendered blood drug use evidence an inappropriate basis for licensee disciplinary action.  The heightened reporting responsibilities of nurses (30 days from arrest), allow petitions for mental and physical evaluations based upon affidavits of probable cause reflecting alcohol or drug use even though blood evidence is not admissible in a court of law.  The Boards want to know right away what its licensees are smoking or drugs they are ingesting.
Pennsylvania licensees need to fight every criminal case. The new notice provisions in Bill 354 will become law.  While criminal charges are pending licensees will have to provide a potentially incriminating personal statement to a licensing board.  This is crazy.  There is no 5th Amendment right against self-incrimination in a professional license defense.  Licensees need an attorney to help draft counseled answers to strategic legal questions and statements under these circumstances.  Now, more than any time in the recent past, licensees should utilize counsel to properly protect their license.
The Boards use their experts to determine impairment.  Why shouldn’t you use your expert to protect your license?  Licensees face workplace challenges, complex life issues, and now a crazy enforcement environment in Pennsylvania.    Mail from the PHMP, PHP, and PNAP present multi- faceted traps for even the most experienced licensees.  Licensee need their own expert — an experienced criminal and administrative law attorney to effectively protect their license.  Call me to discuss your criminal or license case.

Proposed Pennsylvania Law for All Licensee’s Criminal Charge Reporting Responsibilities

In February several Pennsylvania state senators introduced Senate Bill number 354 of 2017. This bill drastically changes licensees reporting responsibilities once they are charged with a crime. Currently, most licensees (Except nurses) must report a criminal charge only upon conviction. Senate Bill 354 as currently written specifically states:

Section 2.1.  Reporting of sanctions and criminal proceedings.

(a)  Duty.–An individual who holds a license, certificate or registration issued by the Bureau of Professional and Occupational Affairs shall, as a condition of licensure, certification or registration, do all of the following:

(1)  Report to the appropriate licensing board or licensing commission a disciplinary action taken against the licensee, certificate holder or registrant by a licensing agency of another jurisdiction.

(2)  Report to the appropriate licensing board or licensing commission an arrest, indictment or conviction of the licensee, certificate holder or registrant.

(b)  Time.–A report under subsection (a) shall be made as follows:

(1)  Within 30 days of the imposition of the sanction described under subsection (a)(1).

(2)  Except as set forth in paragraph (3), within 30 days of the earlier of:

(i)  an arrest under subsection (a)(2); or

(ii)  an indictment under subsection (a)(2).; or

(iii)  a conviction under subsection (a)(2).

(3)  In the case of a criminal action under subsection (a)(2) that is initiated prior to the effective date of this paragraph, within 30 days from the later of:

(i)  the date of conviction; or

(ii)  the effective date of this paragraph.

If a licensee does not report a new arrest within 30 days, the licensee is subject to additional disciplinary action.

All Pennsylvania licensees may soon become subject to disciplinary action as a result of accused, not convicted, criminal conduct.  This is a much different from the current scenario of disciplinary action upon conviction. The remaining subsection identified below is consistent with current procedural due process rights to a licensee whose license is subject to an immediate clear and present danger emergent suspension.

(a)  Temporary suspension.–A licensing board or licensing commission may temporarily suspend a license, certificate or registration under circumstances as determined by the board or commission to be an immediate and clear danger to the public health and safety. The board or commission shall issue an order to that effect without a hearing, but upon due notice, to the licensee or, certificate holder or registrant concerned at his last known address, which shall include a written statement of all allegations against the licensee or, certificate holder or registrant. After issuing the order, the board or commission shall commence formal action to suspend, revoke or restrict the license or, certificate or registration of the person concerned as otherwise provided for by law. All actions shall be taken promptly and without delay.

(b)  Hearing.–Within 30 days following the issuance of an order temporarily suspending a license, certificate or registration, the licensing board or licensing commission shall conduct or cause to be conducted a preliminary hearing to determine whether there is a prima facie case supporting the suspension. The licensee or, certificate holder or registrant whose license or, certificate or registration has been temporarily suspended may be present at the preliminary hearing and may be represented by counsel, cross-examine witnesses, inspect physical evidence, call witnesses, offer evidence and testimony and make a record of the proceedings. If it is determined that there is not a prima facie case, the suspended license, certificate or registration shall be immediately restored. The temporary suspension shall remain in effect until vacated by the board or commission, but in no event longer than 180 days.

(c)  Automatic suspension.–A license or, certificate or registration issued by a licensing board or licensing commission shall automatically be suspended upon:

(1)  the legal commitment to an institution of a licensee or, certificate holder or registrant because of mental incompetency for any cause upon filing with the board or commission a certified copy of the commitment; or

(2)  conviction of a felony under the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, or conviction of an offense under the laws of another jurisdiction which, if committed in this Commonwealth, would be a felony under The Controlled Substance, Drug, Device and Cosmetic Act.

(d)  Stay.–Automatic suspension under subsection (c) shall not be stayed pending an appeal of a conviction.

(e)  Restoration.–Restoration of a license or, certificate or registration shall be made as provided by law in the case of revocation or suspension of the license or, certificate or registration.

New to the licensing and regulatory scheme for every licensee is the ability of a licensing board to automatically suspend a license if the licensee is committed to a mental health facility for any reason or a conviction under the Drug Act. Restoration of the licensees license suspended under Senate Bill 354 shall be consistent with any other procedural due process rights.
Please call me to discuss your case

Pennsylvania’s New DUI Case Law

Since Birchfield v. North Dakota, 136 S.Ct. 2160, 195 L. Ed. 2d 560 (2016), Pennsylvania’s DUI statute as applied to blood draws and refusals to submit to blood draws has because unenforceable.  The illegal escalation of criminal penalties for refusing to submit to a blood draw, or even being told of the enhanced penalties, has created an untenable situation for every police department in the Commonwealth.  They are still doing it wrong. Do not plead guilty.  Fight these cases.

Some departments are still reading the old refusal warnings.  Some are still taking people to the hospital when a simple breath test will work.  Some are making up new refusal warnings.  Some are trying to get people to freely consent to a blood draw without telling them of the consequences.  These, I think are all illegal procedures.  The cases are coming down every week limiting how the Commonwealth can gather evidence and what evidence can be used to prosecute the cases under the post-Birchfield paradigm.

It is the Commonwealth’s burden of proof to establish a DUI suspect’s consent to give blood is the product of essentially free and unconstrained choice—not the result of duress, coercion, expressed or applied. Commonwealth v. Gaetano, 2017 Pa. Super. Unpub. LEXIS 1241 (April 4, 2017); Commonwealth v. Evans, 153 A.3d 323, 2016 PA Super 293 (Pa. Super. filed December 20, 2016). The standard for measuring the scope of a person’s consent is based upon an objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave such consent.

Gaetano and Evans  in applying Birchfield hold that the Commonwealth may not impose criminal penalties on the refusal to submit to a warrantless blood test.  Reading a person the now illegal O’Connell warning’s, or any other fabricated, constructed, newly designed version thereof, threat of enhanced criminal prosecution and incarceration vitiate consensual submission to a blood draw absent a warrant. Gaetano and Evans state it is the Commonwealth’s burden of proof to establish that a defendant’s consent is freely given and not the product of coercion.

It is not the a defendant’s burden of proof to establish or place in the record his subjective feelings of coercion. Commonwealth v. Fink, 2016 Pa. Super. Unpub. LEXIS 4704, *13 (Pa. Super. Ct. 2016).  The mere language of the O’Connell warning, or any other fabricated, constructed, newly designed version thereof, include a threat of enhanced criminal prosecution are coercive and the Commonwealth cannot establish coercive free consent.   Objective evidence of duress that is the basis for Gaetano and Evans will be present in almost every defendant’s arrest record, thus vitiating alleged voluntary consent to give blood draw.

Upon deciding a Motion to Suppress the blood evidence, trial courts cannot, and it is irrelevant to the constitutional evaluation under the Supreme Court precedent, put the burden on the defendant, as to what their objective state of mind was upon giving consent for a blood draw.

As for the specific refusal statute, 75 Pa.C.S.A. § 1547, Superior Court has concluded that it or police departments newly fabricated, constructed threat of enhanced criminal prosecution vitiates any consent given to a warrantless blood draw.  Gaetano and Evans maintain that subjecting defendants to warrantless blood draws based upon the illegal O’Connell warning consent provisions (or any other fabricated, constructed, newly designed but improper version thereof, threat of enhanced criminal prosecution) is illegal and unconstitutional under US Supreme Court and Pennsylvania appellate court jurisprudence.

In looking at the totality of the circumstances the court must determine that any consent is not voluntary and coerced. Birchfield’s review of the Supreme Court’s jurisprudence on blood testing compels a review of Missouri v. McNeely, 566 U.S ___ (2012),  where the Court refused to adopt a per se rule that “whenever an officer has probable cause to believe that an individual has been driving under the influence of alcohol, circumstances will necessary exist because blood alcohol content evidence is inheritably evanescent.”  Id. at ____, (slip op., at 8).

McNeely is applicable in Pennsylvania DUI cases because officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search.  The Fourth Amendment mandates that they do so.  They are no doing so.  The court has held that it is not enough to claim that “circumstances may make obtaining a warrant impractical such that the alcohol’s dissipation will support an exigency.” This is to be decided in each case on its facts.  The Court did not create a general rule based upon “considerable over generalization” that a per se rule would reflect.

Pennsylvania has said the same thing.  “The Fourth Amendment to the [United States] Constitution and Article I, Section 8 of [the Pennsylvania] Constitution protects Pennsylvania’s citizens from unreasonable searches and seizures.” Commonwealth v. McAdoo, 2012 PA Super 118, 46 A.3d 781, 784 (Pa. Super. 2012). “A search conducted without a warrant is deemed to be unreasonable and therefore constitutionally impermissible, unless an established exception applies.” Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 888 (Pa. 2000).  “Exceptions to the warrant requirement include the consent exception, the plain view exception, the inventory search exception, the exigent circumstances exception, the automobile exception . . . , the stop and frisk exception, and the search incident to arrest exception.” Commonwealth v. Dunnavant, 2013 PA Super 38, 63 A.3d 1252, 1257 n.3 (Pa. Super. 2013).

As for blood, the “administration of a blood test . . . performed by an agent of, or at the direction of the government” constitutes a search under both the United States and Pennsylvania Constitutions. Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308, 315 (Pa. 1992); Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966).  Since the DUI blood tests are typically performed without a warrant, the search is preemptively unreasonable “and therefore constitutionally impermissible, unless an established exception applies.”

In determining the validity of a given consent, the Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice — not the result of duress or coercion, express or implied, or a will overborne — under the totality of the circumstances.  The standard for measuring the scope of a person’s consent is based on an objective evaluation of what a reasonable person would have understood by the exchange between the officer and the person who gave the consent.  Such evaluation includes an objective examination of the maturity, sophistication and mental or emotional state of the defendant. Gauging the scope of a defendant’s consent is an inherent and necessary part of the process of determining, on the totality of the circumstances presented, whether the consent is objectively valid, or instead the product of coercion, deceit, or misrepresentation.  Commonwealth v. Smith, 621 Pa. 218, 77 A.3d 562, 573 (Pa. 2013) (internal citations, quotations, and corrections omitted).

I think the DUI case law requires that the police tell the arrestee of the consequences of a refusal to take the test so that he can make a knowing and conscious choice.  When requested to take a breathalyzer or blood test, the court insists that in addition to telling an arrestee that his license will be suspended for one year if he refuses to take a breathalyzer test, the police instruct the arrestee that such rights are inapplicable to the breathalyzer test and that the arrestee does not have the right to consult with an attorney or anyone else prior to taking the test. An arrestee is entitled to this information so that his choice to take a breathalyzer test can be knowing and conscious and we believe that requiring the police to qualify the extent of the right to counsel is neither onerous nor will it unnecessarily delay the taking of the test.  Commonwealth v. O’Connell, 521 Pa. 242, 555 A.2d 873 (1989).

In many cases, the police claim a defendant allegedly consents to the warrantless blood draw during a custodial interrogation after the police inform him of some fabricated, constructed, newly designed informed consent language not court or legislatively approved. This is not proper.  Currently, the only available law requires the police to advise a defendant that: “if you refuse to submit to chemical test and you are convicted or plead to violating § 3802(a)(1) related to impaired driving under the vehicle code, because of your refusal, you will be subject to more severe penalties set forth in § 3804(c)[,] relating to penalties, the same as if you were — if you would be convicted at the highest rate of alcohol.”

This makes the verbal consent to a warrantless blood draw  during a non-mirandized, custodial interrogation in illegal statement subject to suppression.  Absent verbal consent, there is none.  Further, since Birchfield held that  a state may not “impose criminal penalties on the refusal to submit to [a warrantless blood] test,” the police officer’s advisory to any defendant on the non-legislatively permitted language illegal. Birchfield, 136 S.Ct. at 2186. This then requires a court to conclude that the search incident to arrest doctrine does not justify  warrantless blood testing compelled through enhanced criminal sentencing provisions for refusing to take that blood test.  This in turn means that the enhanced criminal offense, both in charges filed and potential sentencing scheme set forth in 75 Pa. C.S.A. § 3802(b)(1)(2), compels this County Courts of Common Pleas to hold that “motorists cannot be deemed to of consent to submit to a blood test on fate of committing a criminal offense.”

Call me to discuss you DUI and blood draw evidence.

Another Really Nice Client Review with my Response

Here is another really nice and very accurate client review and my response. I can write blogs about this stuff. But, client testimonial about how aggressive and direct my representation is becomes the best blog.

I received a “letter of concern” from Pa nursing board after a charge of public intoxication.I unwittingly responded to the Board before contacting Richard.What a mistake!!!!The Board is not your ally-quite the opposite.Their job is to destroy you both financially and mentally.
Fortunately,Richard was able to expertly win our court case.Unfortunately,unbeknownst to me,I had been suffering from Bipolar disorder all the while,and the relentless emotional stresses caused by the Board caused me to suffer deep depression and a resulting manic swing where I had 2 DUI’s in a span of less than 2 weeks. Richard was right there for me and had my charges lessened significantly.Despite that,the Board required that I participate in their onerous,soul and money sucking program.I chose to voluntarily suspend my RN license rather than go through with that.I would not be able to work in my specialty during the 3+ years in the program,be out of thousands of dollars,and may not be employable when all is said and done.32 years as a nurse is enough for my lifetime anyway.
Richard Hark is an expert in protecting licenses of health care professionals and will work tirelessly to win your case.He is also very understanding and helpful with your anxieties at such a stressful and unsure time.I recommend him 100%.

Richard Quinton Hark’s response: “Thank you. I am so happy to help. I aggressively support every client’s need to take their medication without VRP and PHMP interjection in you, the professional’s, course of medical care and treatment. The one size fits all, regulatory approach does not work for everyone. We live in the best time of medical care and lawful prescription medication management of many medical conditions. Do not be ashamed or scared of your medical care as it pertains to your license. Anxiety, depression, ADHD are commonly diagnosed medical conditions for which properly administered and dosed medication management is no one’s business but the patient. Do not tell your job, your manager, the D.O.N., or any police officer in a DUI investigation. Do not respond to any letter of concern or sign medical authorizations releasing your medical care and treatment history to a social worker. Call me. This client and the others who have reviewed me attest to my aggressive defense of you, your privacy, and your license. I couldn’t be happier for this client who trusted my professional experience to help them, and won!!!!!!!”

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