Rural Nursing and the Scope of My Practice

Telephones are great.  Your reading this blog because of the internet.  You are concerned about a legal issue of which I have written about.  I write all of my blogs and wrote every article on my website and the topics contained therein.    All the AVVO reviews on my website are from great medical professional facing significant issues  of which I help them considerably.

Due to the Pennsylvania nursing impairment enforcement environment, my professional license defense practice (criminal and disciplinary hearing) take me to many rural counties throughout Pennsylvania.  My web and internet presence starts my legal relationships.  I meet with almost every client in either county district or Common Please Court, in Harrisburg for a hearing, or at a convenient place to prepare for the next step in the legal process.  I therefore drive a lot.

My driving throughout the Commonwealth brings me to really wonderful people, scenery, and vistas.  I have written about driving through the Lehigh Valley several times.  Last week I ventured off to Columbia County.  It could be considered the middle of the Commonwealth — a wealthy state it is.  Some pictures taken while driving reveal the early morning fog burning off.

 

The really interesting thing about this photograph is that the fog is coming from the cold water of the eastern branch of the Susquehanna River.  This branch meanders west and then south, merging with the northern branch that falls north to south from Lewisburg and Williamsport into Harrisburg, where my clients and I attend the Nursing, Medical Board and other hearings.

Coming back from Columbia County, Jim Thorpe and the Lehigh River bring me home through the Lehigh Tunnel.

 

I really like Carbon County, Jim Thorpe.  The town is great.  The court house is magnificent, and there is a bike rental and equipment shop next to the breakfast place.  The crazy monument controversy is alive and present in the town square.

Carbon County Square

Call me to talk about coming to your Pennsylvania County to handle your nursing license, medical license, or other professional license disciplinary or criminal matter.

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Riding the Bridges of South Jersey And Valley Forge

My administrative law blog followers are eagerly awaiting a new blog. The summer months have been slow with regard to new legal decisions or laws and/or regulations that substantially change my practice.

The various health related professional board’s summer meetings have kept me very busy.  After a licensing board meeting, clients’ matters that are on the agendas – accepting the decision of a hearing officer, approving an consent agreement, or ordering a Mental and Physical Evaluation – generate a lot of work.

Great weather affords me the opportunity to ride my bike a little bit more.  Averaging 125 miles a week takes me across many bridges, rivers, and bike trails, while traversing local county roads. My escapade to the Lancaster County Courthouse via West Chester and the Brandywine Valley was well documented.

Down the Shore, calm winds and little rain allows me to ride throughout the Garden State Parkway’s mainland beach communities. Leaving Margate, Atlantic County, I ride through Somers Point, along the Great Egg Harbor River up to Mays Landing. Turning left on Route 50 (The Pine Barrens Byway), I have had the pleasure of being joined or joining other riders into Cape May County.  We ride to Marmora, or across to Milmay, Estell Manor,  Tuckahoe, Corbin City, Ocean City, and back through Longport New Jersey.

The pictures reveal the geographic flatness of these rides. The hills are man-made and provide a reasonable perch through which one can take in mother nature’s wonders. The artificial elevations are gentle, well paved, and are really fun way to end the ride.

The South Jersey Pine Lands provide a wonderful misty fog, with a crispy pine flavor, in the early morning cool air. This differs from the Schuylkill River Trail, the new pedestrian bridge at Route 422, and riding through Valley Forge Park at sunrise.  It’s a hard choice as to which is a better ride; 50 to 60 miles of flats in just over two hours, or 25 miles of hills and the history of the Valley Forge and Brandywine valley in the same amount of time.

The one constant in all of these rides are the bridges. Large or small, tall or short, long or brief, they allow walkers and riders to go from one place to another without which the rides could not take place. It’s just great to be out there, getting energized and ready for each day.
 Call me to discuss you licensing matter.

A Major Constitutional Decision from the Pennsylvania Supreme Court

In 2011 the General Assembly enacted, consistent with federal mandate, Pennsylvania’s latest version of Megan’s Law.  Entitled SORNA or the Sex Offender Registration and Notification Act, the law became effective on December 12, 2012.

SORNA, 42 Pa.C.S. §§ 9799.10 to 9799.41, classifies offenders and their offenses into three tiers, 42 Pa.C.S. §9799.14. Those convicted of Tier I offenses are subject to registration for a period of 15 years and are required to verify their registration information and be photographed, in person at an approved registration site, annually, 42 Pa.C.S. § 9799.15(a)(1), (e)(1). Those convicted of Tier II offenses are subject to registration for a period of 25 years and are required to verify their registration information and be photographed, in person at an approved registration site, semi-annually, § 9799.15(a)(2), (e)(2).  This registration scheme greatly extended the registration responsibilities for defendants whose criminal acts occurred prior to December 2012.

I have written several blogs on this issue: SORNA’s retroactive registration requirement for those previously convicted of crimes enumerated within the law purview.  The law specifically states that any individual under supervision (probation, parole, or prison – but not registration supervision) on December 12, 2012 was subject to reclassification of their registration scheme.  The reclassification effectively altered every supervised defendant’s SORNA’s registration requirements from 10 years to 15, 25 or life and changed the annual to quarterly registrations.

My blogs focused on the Pennsylvania State Police’s effort to reclassify offenders who were not under supervision, but were still registering consistent with their guilty plea or sentencing scheme.  In these cases the defendants served their sentence, had complied with their guilty plea agreement, but the State Police sought to reclassify and extent their registration requirements.  The Supreme and Superior court decisions in these cases (Nase, Haisworth and Martinez) dealt with these cases, declaring the State Police’s unilateral reclassification of non-supervised defendant a breach of the guilty plea agreement.

Various state court judges not willing to terminate a SORNA registration requirement found every way possible to deny these defendants post-conviction non-PCRA relief.

On July 19, 2017 the Pennsylvania Supreme Court issued the decision in Commonwealth v. Muniz, 2017 Pa Lexis 1682.  The facts are as follows: On February 7, 2007, after a bench trial in Cumberland County, appellant was convicted of two counts of indecent assault arising out of an incident where he touched the breasts of his girlfriend’s twelve-year old daughter.  Sentencing was scheduled for May 8, 2007, at which time appellant would have been ordered to register as a sex offender with the Pennsylvania State Police for a period of ten years pursuant to then-effective Megan’s Law III. See 42 Pa.C.S. §9795.1 (expired).  However, appellant failed to appear for his sentencing hearing and absconded until he was apprehended on unrelated charges in Rhode Island in September 2014. N.T., 10/14/14 at 2. During his absence, the General Assembly [*3] had replaced Megan’s Law III with SORNA. Under SORNA, persons convicted of indecent assault of a person less than thirteen years of age, 18 Pa.C.S. §3126(a)(7), are categorized as Tier III offenders and are required to register as sex offenders for the remainder of their lives.

Appellant Muniz was sentenced to four to fourteen months’ imprisonment and ordered to comply with lifetime registration requirements under SORNA. Appellant filed a post-sentence motion seeking application of the ten-year registration period under Megan’s Law III, which was the law in place at the time of his offense and conviction, instead of lifetime registration under SORNA. The trial court denied Muniz’ motion and he appealed to the Superior Court, claiming retroactive application of SORNA violates the ex post facto clauses of the United States and Pennsylvania Constitutions, and the reputation clause of the Pennsylvania Constitution.

Importantly, the court found that Muniz’ seven year absence from the Commonwealth is of no moment. SORNA applies retroactively to any individual serving a sentence for a sexual offense or any individual who had not completed their registration period under prior registration statutes as of SORNA’s effective date of December 20, 2012. 42 Pa.C.S. §9799.13. Had Muniz been sentenced in 2007 and subject to registration under Megan’s Law III, he would not have completed his ten-year registration period when SORNA became effective and thus his ten-year registration period would have been converted to a term of lifetime registration.  This foot note number 3 applies to every case for which pre-December 2012 defendants may now seek to contest their post-sentencing reclassification!

Appellant filed a petition for allowance of appeal raising two questions regarding SORNA’s “sexual offenses and tier system” provisions set forth at 42 Pa.C.S. §9799.14:
1) Does applying [42 Pa.C.S. § 9799.14]  retroactively violate the Federal Constitution?
2) Does applying [42 Pa.C.S. § 9799.14] retroactively violate the Pennsylvania
Constitution?

The Pennsylvania Supreme Court said YES to both questions:   The retroactive application of SORNA’s new harsh, punitive shaming registration scheme to defendants whose sex related crimes were committed prior to December 12, 2012 is unconstitutional.   The Court rules that SORNA increases punishment for conduct which occurred before its enactment and such retroactive application violates both federal and state constitutional bans on ex post facto laws; in doing so, the court finds that the Pennsylvania Constitution provides greater protection than the United States Constitution, that SORNA is therefore unconstitutional as applied to someone like Muniz whose conviction predated its enactment. The Pennsylvania State Police can not now lawfully retroactive apply SORNA and reclassify defendants (under supervision or not) for criminal conduct occurring prior to December 2012.  This is huge.

Call me to discuss your case.

Call a Lawyer, Not the Licensing Board, When Contacted by Board Counsel or Investigators

My administrative law practice takes me before many of Pennsylvania’s licensing boards and in hearings that address a variety of disciplinary actions.  It is during Pennsylvania’s professional licensing boards’ bimonthly meetings that disciplinary matters are commenced, reviewed, or finalized.  This is why after a given board’s monthly meeting I typically receive a wave of calls from new clients, mail that initiates disciplinary action in pending cases, or final decisions in cases.

Potential disciplinary actions a board may commence include: 1) reciprocal disciplinary actions; 2) emergency petitions to immediately take a license; 3) objections to license applications; 4)  approval of different consent agreements; 5) approval or rejection of hearing officer’s proposed adjudications; and 6) reviewing cases sent back from the Commonwealth Court for issuance of revised disciplinary action. Also, several boards have subcommittees that approve probable cause petitions compelling licensees to undergo mental and physical of evaluations.

After bimonthly board meetings I receive calls from both current or potential clients inquiring “What I should do? Who should I talk to?  or What information should be disclosed?   Many callers disclose prior conversations with board counsel, investigators, PHMP assessors, or other board representatives. I cringe when I hear this.

 

Board representatives, prosecutors, administrators, and/or medical professionals do not represent the licensee. These people are tasked with enforcing board regulations. They are tasked with complying with each and every administrative procedural requirement (of which the licensee has no idea). They are tasked with securing information against the licensee who is potentially, or actually, subject to disciplinary action. These people do not look out for the best interest of the licensee.  DO NOT TALK TO THESE PEOPLE ABOUT YOUR CASE, FACTS, OR MEDICAL CONDITIONS.  THEY WRITE EVERYTHING DOWN.

 

Board administrators and PHMP office staff are not sophisticated licensed professionals. They are unfamiliar with the actual medical issues, legal issues, or licensing process. They merely perform administrative functions. They lack any authority to adjust, regulate, or modify any correspondence.  Relying upon statements from these administrative level workers is frustrating and leads to incorrect practices.

 

I have heard on many occasions board clerical staff and social workers advise licensees and/or license applicants to cooperate – give statements or do other inaccurate suggestions – that are not in the licensees best interest.  Administrative workers routinely do not recommend hiring counsel to secure a better, more complete, or correct legal advice on how to respond to the legal correspondence  just received in the mail.

 

That is why I say do not contact these boards, rely upon what any administrator says, or even hope that they give you correct advice. Call an attorney and secure proper legal advice.  The best analogy I can give is: Do you call a doctor’s office and follow medical advice dispensed by the phone receptionist or want to talk to RN, LPN, or M.D.?  The obvious answer is no.  So why would you do that when calling a licensing board about your professional license you utilize every day?

 

Please call me to discuss the recent board ordered disciplinary correspondence you just received!

Try to Recognize when an Attorney is Needed

When is it important to hire an attorney in a licensing and criminal defense case? When case agent first contacts you!  Do not talk to them.  Just say thank you, I will call you back; can we meet next week; no you can not come into my house!!
Every day licensing board investigators, police detectives, human resource departments, or other government investigators reach out to targets or “individuals of interest” in a wide range of potential investigations. These law enforcement officers (most state investigators are retired police detectives) are trained to secure statements from the subject of the investigation.  They call you, show up at your house, or try to meet with you at work.  This is when you know you need a lawyer.

My blogs generate phone calls from potential clients.  A recent theme of these calls sticks out;  investigators are employing consistent, heightened and aggressive investigative techniques to surreptitiously secure statements and admissions of criminal conduct, unprofessional licensing behavior, or illegal behavior.  This is explained in one sentence; why do an investigation when an admission from the target will solve the case.

Targets give statements for one reason: ignorance and naïve understanding of the law.   Targets  or potential criminal defendants give statements because they think they are obligated to cooperate, should cooperate, or that cooperating is in their best interest.  These reasons are incorrect.
Admitting to engaging in questionable or criminal conduct eliminates investigator’s obligation and duty of proving their case through means other than an admission by the target.  Admissions to detectives and investigators eliminates their need to perform basic investigator police work.  It satisfies  the police officer’s burden of proof in securing evidence of illegal or criminal conduct against you.
Licensees who admit to a Board investigator to practicing outside the scope of their license, stealing from their clients, overcharging for services, or any other offense does the investigator’s job.  In many cases, before the statement is secured, there is only a mere suspicion of inappropriate behavior.  There is no specific evidence of a criminal act. The statement itself becomes the evidence against you. The person giving the statement creates the criminal evidence for the investigator that they did not otherwise have.   (I feel the same way  about licensees who cooperate in the PHMP VRP assessments.  Do not give the Board’s any evidence they do not have.)
Once a criminal admission is given, the police officers don’t do anymore work. The state investigators don’t do anymore work. This is why there is no legal obligation to cooperate.
Giving statements to employers in work place investigations has the same ultimate result. I have written about this many times. Choosing to not give a blood test, write a personal statement, or even provide copies of medical records cannot be held against you. You can be fired, but it can’t be held against you. At times it’s more important to choose to remain silent then to keep your job.  Anything you say in the employment setting is merely turned over to the board investigator or police.
Remaining silent and not cooperating with any investigation  — not disclosing truly damaging information — sometimes is the best defense of your license or against criminal charges.  Do not succumb to the police officer bullying. Suggestions by police that they can secure search or arrest warrants should not persuade you to give up your constitutional rights.
You do not have to give a statement. You do not have to give a DNA test. You do not have to participate in any polygraph evaluation.   If the officer does not believe your word or accept your version of events, agreeing to provide objective forensic evidence will not change their mind. You will just be giving them evidence to accumulate and use against you at a later date.
Hopefully you have the opportunity to read this blog before you have spoken to an investigator about a licensing issue, participated in the workplace related investigation, or cooperated with any police inquiry inquiry about your job or your behavior. If not, call me as soon as possible.
Whether you hire me or any other lawyer, stop stop cooperating with any police investigation.

Major US Supreme Court DUI Decision and Pennsylvania Licensees

On June 23 the United States Supreme Court decided  BIRCHFIELD v. NORTH DAKOTA, three consolidated cases addressing important substantive and procedural legal issues regarding driving under the influence (“DUI”) cases.  In each case, the North Dakota motorist, lawfully arrested or under investigation for drunk driving, was convicted of a separate crime or otherwise received an enhanced criminal penalty for refusing to submit to a warrantless blood test measuring the alcohol in their bloodstream.

All three state court cases results depended upon the proposition that criminal laws ordi­narily may not compel a motorist to give evidence against themselves in the form a blood sample or breath test unless a warrant authorizing such testing is issued by a magistrate.  The specific issue considered was how the search-incident-to-arrest doctrine applies to breath and blood tests incident to DUI arrests. The court ruled while compelled evidence from breath tests are constitutional based upon the limited inconvenience and invasion of privacy to the motorist, compelled blood tests are unconstitutional for those same reasons.

In Pennsylvania, 75 Pa C.S.A. § 1547 of the motor vehicle laws addresses motorists’ civil license suspension consequences for refusing to submit to a DUI investigation breath or blood test. Depending on how many refusals the operator of the car has previously engaged, a driver’s license suspension based upon a breath or blood test refusal starts at one year and may escalate. The court ruled that these civil collateral consequence license suspension for refusing the test remains constitutional. “Our prior opinions have referred approvingly to the gen­eral concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply.”The Birchfield case did not question the constitutionality of those civil collateral consequence refusal laws, and the Supreme Court limited its ruling stating that “nothing should be read to cast doubt on them.”

In 2015 the Supreme Court ruled that the natural dissipation of alcohol from the bloodstream does not always constitute an exigency justifying the warrantless taking of a blood sample. That was the holding of Missouri v. McNeely, 569 U. S. ___, where the State of Mis­souri was seeking a per se rule that “whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circum­stances will necessarily exist because BAC evidence is inherently evanescent.”  This case set the stage for Birchfield, where the individual defendant’s objected to being criminally penalized for not submitting to the warrantless blood draw or were criminally penalized when the warrantless blood draw produced evidence that was used against them in trial.

Pennsylvania’s DUI statute, 75 Pa.C.S.A.§3802D, provides for enhanced criminal penalties for refusing to submit to a breath or blood test stemming from a DUI investigation. DUI offenders with multiple prior DUI convictions faced enhanced license suspensions and jail sentences based upon the same refusal. In Birchfield, after reviewing all of the prior case law regarding car stops, privacy concerns, and search incident to arrest case law, the court held that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.  Motorists can not be compelled criminally to give evidence against themselves without a warrant signed by an independent magistrate.
The court has finally drawn a constitutional line in the sand limiting the extent to which a state may utilize driving-on-our-roads informed consent laws to compel motorists to give evidence against themselves so the state may investigate and prosecute them for criminal conduct. In Pennsylvania, this will mean enhanced criminal penalties associated with refusing a blood test, not breathalyzer, in any criminal DUI prosecution may no longer be constitutionally permissible.  Please call to discuss your DUI charge, your medical or professional license issue and potential discipline on your license from stemming from your first or subsequent DUI.

Drugs and the Mental and Physical Evaluation – The Assessment Trick

I have been overrun by client consultations, new cases, and handling existing cases involving Pennsylvania licensing board’s Petitions for Mental and Physical evaluations. I attend almost every one of these with my clients.  Two consistent fact patterns that start this entire process are employment based positive drug tests and a driving under the influence conviction or ARD enrollment.  A criminal charge or failed drug test typically result from self-medicating due to a physical injury or mental health condition. Sometimes there is the single use of sleeping agent with the unlucky and unfortunate call for a random drug test at work. Professional bureau investigators and employers take these failed drug tests and DUI ARD or convictions very seriously.  The Petition for  Mental and Physical is the Boards’ way to have a professional medically evaluated.

What the employee/professional does upon failing a drug test or receiving a DUI (and now reporting it to the Board in thirty days as required) dictates how the case could conclude. Obviously failed drug tests are a huge concern when the discovery drug is one for which the licensee does not have a valid prescription. The same concerns exist for a drug related DUI.

“What is done” by the professional should be nothing!  Mandatory Board reporting is a must.  But do not participate in any employment related or Voluntary Recovery Program (“VRP”) voluntary assessments. Don’t fall for the threat from a PHMP or PNAP case worker saying “We will have to close the file, report you to the legal department, and you could loose your license.”  This is an empty threat.  Single offense DUI or testing positive for a medication utilized to treat a documented medical condition will not result in legal action.  These PHMP case workers are merely trying to scare professionals into going to their assessments — which never work in the licensees’ favor.

Any employment related drug test failure automatically results in job termination and Board reporting. Here is where employers and Board investigations begin. It is my firm conviction that the professional should never attempt to explain a long-term medical or mental health condition that may have gone un-diagnosed or untreated. Sheer speculation on the licensee’s behalf that disclosure will save a job merely invokes sheer terror of potential patient injury on the employer’s behalf.

Why would a professional attempt to “confess” or seek lenience  from an employer whose sole focus of any drug related investigation is to absolve itself of potential civil, criminal or regulatory liability. At this juncture, an employer (hospital, nursing home, medical practice, surgical group, and/or staffing agency) tries to secure incriminating statements from the employee/licensee, secure cause for termination, and concrete evidence for Board reporting.  In this context, the medical employer becomes a mandatory reporter to the Board, with immunity to provide all information it secured in its investigation. The statements, drug tests, and any medical records an professional provides merely become the stepping stone and jumping off point of a Board investigation.

Agreeing to attend an employee assistance program or PHMP assessment upon receipt of a letter suggesting such (see my other blogs) just creates more evidence for the employer and Board to utilize to discipline the licensee. Professionals seeking PHMP assessments “to be cleared because this will all go away” have just given away the farm. Licensees of all sorts are then required to participate in mental health fishing expeditions with compelled disclosure in a non-confidential mental health and medical treatment histories, assessment conducted by untrained individuals who are required to disseminate any and all information provided.

Almost one hundred percent of my clients have attended these assessments.  These non-expert assessors are financially motivated to generate business.  Stringing together standard and typical histories of long term social alcohol use that culminates in a DUI (criminal interaction) allows the Livengrin, Marmont, Caron, Malvern Institute social workers to speciously conclude a DSM -IV diagnosis for alcohol abuse or dependence.  It is absurd but is based only on the words coming from the professional licensee who has just agreed to disclose all confidential medical information, signed forms, and told them everything; all done with the hopes of “making this go away” or to “keep my job and license”.

This is the biggest mistake of your career.  I have stated it many times in my blogs;  Trying to save one’s current job at the expense of your lifetime professional license is analogous to trying to win a small battle in a war, which win will merely cause the loss of the entire war.

Suggestions of impairment, threats of reporting the licensee to the board, or turning files over to the legal department are typical scare tactics. Testing positive for ambien used in a single plane flight, amphetamines used on a single occasion from a family members’ prescriptions, or a weekend back strain causes one to borrow a family members tramadol are all typical occurrences. These actions do not amount to an impaired professional suffering from a drug or alcohol addiction.

Suggestions of such are grossly out of context and not a basis for any person to enroll in the PHMP.  The burden of proof is: Does the licensee suffer from a drug or alcohol addiction or disease then renders them incapable of safely practicing medicine?   How can one positive drug test allow for this conclusion.  Untrained caseworkers seek to secure or a long-term drug or alcohol use history through superficial application of DSM criteria. Overlaying such with a single positive drug test, caseworkers feel empowered to take advantage of licensees who are afraid of “Board involvement” in their license. However, such cannot be farther from the legal truth.

I get exasperated at the level of deceit and untruths told by these caseworkers to take financial advantage of the licensee at a time of grave professional concern.

DO NOT TALK TO THESE PEOPLE. CALL ME FIRST.  DO NOT MAKE THE MISTAKE OF BELIEVING ANYTHING THESE CASE WORKERS, SOCIAL WORKERS, ASSESSORS SAY UNTIL YOU SEEK LEGAL COUNSEL.  UNDERSTANDING THE KEY WORDS THESE MANIPULATIVE PEOPLE UTILIZE, SO THAT YOU THE PROFESSIONAL UNDERSTAND THE COERCION BEING EMPLOYED WILL RENDER CLEARER THE PATH TO RESOLVING THE LEGAL ISSUES TO BE CONFRONTED.

Your IPAD and Text Communications…No Expectation of Privacy…Sanctioned Police Conduct

This blog addresses a significant development in Pennsylvania Court’s judicial approval of a new police investigation method involving iPads and text communications. The recent case of Commonwealth v Diego, reviewed and sanctioned police departments ease dropping on a Pennsylvania citizen’s electronic communications conducted over Skype, a Wi-Fi signal, or on an iPad without a warrant.

I have written extensively on this topic as it pertains to Pennsylvania Wire Tap Act, 18 Pa. C.S.A. § 5702. My articles  are located on my website publications page, http://www.phila-criminal-lawyer.com/Publications/New-Wire-Tap-Act.shtml , and HB 2400 Balances Privacy Interests and Law Enforcement Needs, http://www.phila-criminal-lawyer.com/Publications/Cell-Phones.shtml.   I have written about the federal counterpart, the Stored Communications Act. That article is found at High Court’s GPS Ruling May Have Minimal Impact

 

 

 

​In ​Diego, the issue is was is an “interception” of an electronic communication – a text message.  Diego unknowingly planned criminal activity with a police confidential informant (“CI”) through text messages.  The CI received Diego’s texts regarding a drug transaction on his personal iPad while in the basement of the local police department with several detectives in the room. The CI engaged in the texting with Diego, who was organizing and scheduling a drug transaction.  Importantly, the CI then either relayed the information in the texts to the officers or they watched the texts in real time.  The drug transaction was then executed and Diego was arrested.  The police did not secure judicial or district attorney approval under the Wire Tap Act to engage any the conduct described.  They simply placed the CI in their office and had him text Diego.

After his arrest and securing discovery, Diego filed a motion to suppress, seeking to preclude introduction into evidence his phone number and thus identity and his text messages. Diego argued that the police department “intercepted” his iPad communications to a third person without a warrant. Diego maintained that the police department’s warrant-less observations of his text messages – a wired, electronic, or oral communication – to the CI were in violation of Pennsylvania’s Wire Tap Act. The Commonwealth claimed texts were not an electronic communication, an IPAD is not covered by the Wire Tap Act, and, alternatively, even if so, Diego did not have a reasonable expectation of privacy in the text messages he sent to the CI. The trial court disagreed and found the police needed a warrant to engage in the conduct and suppressed the evidence.  The Commonwealth appealed.

Superior Court disagreed with the Commonwealth on the first two issues, finding that an iPad is an electronic, mechanical or other device, rendering the Wire Tap Act applicable to the Commonwealth’s use and/or activities of securing information from an electronic device. The Court also found that text messages are electronic communications covered under the Act.

​However, the Diego Court agreed that Diego lacked a reasonable expectation of privacy in the contents of the text message conversation that he conducted with the unknown CI.  “Diego knew or should have known that the conversation was being recorded.” The very act of engaging in a text message communication risks each recipient sharing the contents of that conversation with a third party. For example, leaving a telephone message on an answering machine, sending an email to a chat room communication, or engaging in a group text message necessarily involves less expectation of privacy in that communication because the sender does not know who will be present when the message is retrieved.

​The Court further held that text messages are not private, whether received on an a smartphone or iPad, because the text messaging process does not include an automatic deleting protocol after receipt and review.  The court ruled the sender has a lower expectation of privacy in the text messages because a text message can remain in a recipient’s smart phone indefinitely, regardless of whether the recipient may or may not delete it,  The fact that the messages can or may be deleted is not the operative issue. Rather, it is the fact that they may not be deleted and can remain on the recipient’s electronic device.

The court analogized this factual scenario to a previous ruling in Commonwealth v. DeMarco, 578 A.2d 942 (Pa. Super. 1990).  That case states any reasonable and intelligent person leaving a message on an ordinary answering machine would have to be aware of and consent by conduct to the recording of the message on the answering machine tape. “​Absence some special showing of unique attributes of a particular answering machine cloaking its identity as an answering machine, we cannot imagine how one would not know an intended the message placed upon the answering machine message tape, be taped and by the very act of leaving of the message, expressly consents by conduct to the taping of the message.” This creates a lower expectation of privacy similar to Diego’s text messaging.

​The Diego court differentiated its the facts to those in Riley v. California, 134 S.CT. 2473 (US S.Ct. 2014). There, the Court held that the police cannot search the contents of a “a Smart phone” without obtaining the warrant. The Diego court emphasized that the local police department did not obtain the contents of Diego’s text messaging conversation by searching the CI’s phone incident to arrest. Rather, the CI gave authority to the police to observe the communications in question.

​This is consistent with Pennsylvania decisions in Commonwealth v Cruttenden, 58 A.3d 95 (Pa. 2012) and Commonwealth v Proetto, 771 A.2d 823, (Pa. Super 2001). These cases judicially sanction the police investigatory technique of having a CI or a police officer – posing as a person engaging in criminal activity – use an electronic device without a warrant to communicate directly with a person planning a criminal act.  No “interception” of a communication takes place under either Pennsylvania’s Wire Tap Act or the Federal Stored Communications Act because the target or perpetrator is communicating directly with the intended recipient. In Proetto and Cruttenden, police officers directly communicated with the defendant (cops acting as a criminal too or posing as a potential victim). These courts determined that such was specifically exempted as an intercept under the statute.  This makes sense because new electronic surveillance laws allow police to act without a warrant as a party engaging in criminal activity in order to trick, bait, or entice people to engage in such as part of an investigation.

The real issue in Diego, however, is how the CI gave the police Diego’s texts.  Factually, the court found that the CI engaged in the communication directly with Diego and then merely related the contents of that conversation to the police who were standing across the table from him and not watching the texts as they arrived on his phone.  The court stated this is not an interception under the plain meaning of the Pennsylvania’s Wiretap Act.

The Diego court allows police receive “historical” information in a text message communications from a CI posing as regular citizen engaging in criminal activity with a targeted defendant.  The court instructed that the police CAN NOT, without a warrant, observe real time text messages as such may constitute an interception under Pennsylvania law.

Unfortunately, police participate in CI real-time texting all the time.  It is what probably occurred (but the police lied under oath about it) in the Diego case.  The court ignored reality.  To accept as credible police testimony that their “CI was not typing what they told him and they did not watch real time as Diego’s texts were received in that basement investigation room” is to ignore basic police tactics.  Splitting this investigatory hair to allow police to use a CI to engage in texting, “but not watch the texts as they are received on a CI’s phone”, and have the CI “tell them what the text say,” is a a ridiculous result.  The police did not secure a warrant and the court did not want to suppress the evidence of Diego’s incriminating texts or identity on the Smart Phone

​As long as the police do not directly observe the text message communications, but rather receive them from their confidential informants, Diego now permits this type of police activity.

What to do when the professional receives a “Letter of Concern”.

Routinely, criminal contact (from public intoxication, a DUI, to a drug diversion allegation or sleeping in the work place) comes to the attention of every professional’s licensing board and the PHMP.  This triggers a “Letter of Concern”. This is a letter sent to the unsuspecting licensee, commencing with the sentence; “It has come to our attention that you may be suffering from a drug or alcohol impairment that affects you ability to practice your profession. We are concerned.” This letter is from the PHMP and suggests participating in an evaluation to protect your professional license in a confidential manner without disciplinary action.  DON’T FALL FOR IT.

At this point of the many, two reactions are typical.  NO WAY.  I’m not going.  These licensees hit the internet, research, find my blogs and call me.  Good plan. You may skip to the end of this blog. For those who are on the fence, keep reading.

The second reaction is that many think the evaluation will help. These inexperienced licensees, but to no one’s surprise, attend the evaluation, thinking he or she will pass “with flying colors”. This thought process is a mistake and wrong. Unbeknownst to these professionals, the evaluation is conducted by untrained, non-medically based treatment evaluators. These social workers or counsels work at these facilities, get paid for conducting these evaluation and routinely diagnose people to need PHMP monitoring and treatment at their facility. These licensees forget that the PHMP referred them to the treatment facility who has a financial interest in finding a treatable condition for which it would be capable of providing care.

For the professional that freaks out but is on the fence about attending, researching what are PHP, PHMP, & PNAP will lead them to my blogs and this possible blog.  After reading you will realize the evaluation is merely a fishing expedition. The evaluator is fishing for anything upon which they can hang their diagnosis of a drug or alcohol abuse, use, or dependence disorder for which treatment and/or monitoring is required. My prior blogs review what documents these evaluators seek, medical records they wish to review, and medial authorizations they try to get signed.

These evaluators only know of you what you the professional tells them. There is no prior basis for professional monitoring. While telling the truth is important, you have no obligation to attend a PHMP suggested evaluation stemming from a “letter of concern.” There is no Board order. Your professional license is not under investigation and no discipline has been handed down compelling attendance or treatment. My question then, is, why go?

This voluntary participation is the problem. Attending these evaluations and being completely cooperative provides the PHMP, your Board, and the untrained social worker evaluator information of which all three are unaware, don’t know and do not have a right to know.

Cathartic as it may feel to unburden and talk to this PHMP evaluator, most of the time it will lead to significantly more legal problems. Disclosing information and authorizing the evaluator’s entity to obtain confidential, non-work related medical records opens the professional up to a much deeper evaluation than the “letter of concern” originally suggested or even what the professional anticipated in attending the evaluation.

Many professionals receive proper medical care and take prescribed medications for short or long term diagnosed medical or mental health conditions. Many evaluators know nothing about the complexity of medical care, treatment regimens, prescription medication protocols, or dosages. These are medical decisions for which only licensed doctors can interpret and address. Telling drug social workers at a treatment facility about the prescription medications only leads to their stereotyping you into some medical condition requiring monitoring or further evaluations. This just deepens the fishing expedition.

When you read your “Letter of Concern” do not freak out. Call me to discuss your options. DO NOT SCHEDULE OR ATTEND THE EVALUATION.

Mandatory Drug Testing of Doctors Will Be Here

California is about to pass a law allowing random mandatory drug and alcohol tests for all physicians regardless of an employment or other event triggering reason. While Pennsylvania’s regulatory scheme is not yet this aggressive, DEA, federal OSHA, and Pennsylvania’s hospital reporting regulations already require event-based drug testing with confidential reporting and immunity for the reporting entity. Requiring doctors to now submit to random drug test, regardless of employment or professional setting, would be one more step in protecting medical consumers.

The significant difference between state random drug tests of doctors, rather than DEA- federal, is the vigilance with which Pennsylvania’s medical licensing board will investigate its recreational drug using physicians. Currently any medical practitioner that seeks emergency or other medical care, during which an illegal or non-prescribed scheduled narcotic is found in their blood, will be reported to the Board if the practitioner does not self-report. This will trigger a Board license investigation.

Random drug testing seeks to find the impaired physician rather than those physicians getting so bad that the impairment becomes obviously seen through criminal actions or poor behavior.  The importance of random drug tests is that they would reveal those physicians utilizing recreational drugs but functioning in a professional manner.  The Pennsylvania Medical Board will be equally hard on any type of drug using physician.

California’s step towards adopting this investigative tool is based upon the western states’  legalization of marijuana for personal use. Doctors are now legally getting high.  Unfortunately, the impairment presented by social recreational use of marijuana continues after the day of usage. Regulators are confronting professionals high on the job, rendering significant and serious medical decisions, but not necessarily showing signs of impairment.  Absent the random testing, a criminal investigation, or acute medical treatment, investigators and regulators will now be able to learn of a physician’s inappropriate recreation use illegal drugs.  This is for consumer protection.

California’s choice to do random drug tests indicates that it is going to be a per se violation state rather than an impairment state. By this I mean that regardless of whether the physician is impaired by the recreational drug of choice, the mere presence of that illegal substance in their blood will render them in violation of the regulatory scheme. This is currently the rule in Pennsylvania with regard to our driving under the influence laws. Conversely, New Jersey is an impairment state, requiring the state to prove the illegal substance caused “impairment” at the time at the time of investigation. California is seeking to not have to prove the impairment, just the use of illegal drugs.

Pennsylvania’s current medical regulatory scheme authorizes investigation and drug testing for suspicions of impairment as a result of anonymous tips or workplace events. California’s doctors are just now being brought into the modern age of regulatory investigation and consumer protection. The policy issue is do you want your doctor to be under the influence of an illegal substance while he/she is medically treating you or your family members. While there probably is a current similar scheme regarding suspicions of impairment, now California, and eventually the rest of the states, will use random testing to avoid the necessity of a have reasonable suspicion of an impairment to trigger testing.

All other the drug testing provision would still be enforced through the existing regulatory provisions. Alleged violations would be reported to the California Medical Board. As stated above, another provisions requiring hospitals to report the name of doctor suspected of abusing drugs or alcohol is also present, Pennsylvania already enforces this regulatory requirement regardless of whether the impairment is a prescription or illegal drug  abuse.

Please call me to discuss your medical license investigatory issues initiated by the Pennsylvania Medical Board as a result of your recreational or social use of illegal substances that do not affect your professional abilities.

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