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.

What is PHMP “Cooperation”

A licensee who has chosen to enter the VRP, enters a program the PHMP administers and is monitored daily by a PNAP, Sarph, or other Board case worker. The touchstone of every program is binding the licensee to “cooperation”.  Cooperation requires each participant to insure their assigned case worker perceives “cooperation” at every level of the program. Cooperation of everything and anything a case worker requires is the fundamental part of the agreement.

Perceived cooperation starts before the PHMP/PHP contract is signed, regardless of whether the respective professional board has executed the Consent Agreement. (See my blog discussing the 6 to 9 months between entering the PHMP/PHP and receiving the formal consent agreement.) Cooperation begins with the initial assessment, not contesting the untrained social worker’s specious conclusion of an impairment, and enrolling in the designated drug or alcohol treatment regiment at their location for which they have a financial interest.

Compliance means signing releases for entire medical histories, work evaluations, drug and alcohol test reports, and employment monitoring documents and then paying for all such documents. Compliance means not working in the specific areas of professional practice of which your case worker unilaterally decided was against the program. Compliance means going to drug or alcohol testing facilities on time, complying with their specimen donation protocol, and paying for all associated costs every day or week even when you are not working because your case worker unilaterally decided that you can’t work.

Compliance means eating certain foods, undergoing certain medical procedures, and releasing all pharmacy records. Compliance can also mean (according to your designated caseworker) not contesting certain certain chain of custody mistakes or errors in specimen collection, chain of custody, or specimen retesting requirements. Compliance could also mean not seeking earlier evaluations for return to work or termination of the PHMP program upon completion of the time set forth in the PHMP contract.

Compliance, or lack of compliance, could also mean acknowledging or not agreeing to a positive/failed drug test for a substance not permitted in your PHMP contract. Noncompliance is not admitting to a violation.  Caseworkers seek admissions of violating the drug or alcohol provision of the contract.  These admissions constitute an automatic basis to terminate or extend the PHMP contract.

At this juncture a lack of admission/compliance prompts every caseworker to change their demeanor. Rather than an advocate, caseworkers become policemen seeking to secure evidence/admissions. Admissions of violating the drug policy for any type of banded substance are used against the PHMP participant in a Rule to Show Cause petition for termination or revocation proceeding. Minor violations of drug and alcohol policy (based upon complete abstinence) are treated the same as major violations of the program for prescription medications.

Counsel is necessary to help navigate these issues of compliance or noncompliance. Statements made to caseworkers are always used against the participant. They are placed into pleading language presented to the board as a basis for termination or revocation. Call me to discuss.

The Mental and Physical Evaluation

In this “highly sensitive” climate of state license investigations, almost any professional work place complaint can become the basis for a license disciplinary action. It is the manner in which the licensee responds to the first contact from either work, the Board, or a criminal investigator that determines how the investigation will proceed.

As I have blogged numerous times, do not cooperate with any first request for drug testing. Absent chemical proof of illegal narcotics ingestion, any job action (termination) is based upon workplace policy and not evidence.

Thereafter, retain counsel to begin preparing for a possible probable cause petition requiring a Mental and Physical evaluation. This blog will discuss this part of the process.

The probable cause petition is a confidential stage in the per-disciplinary proceedings. It is not a disciplinary action. It is the prosecutor’s confidential application to the probable cause screening committee of the license board. They present “your set of facts,” asking the committee to compel an evaluation by the Board’s expert.

The licensee only finds out about the petition after the order permitting the evaluation is signed. The purpose is to confidentially ascertain whether the licensee is impaired or unable to practice their profession safely. The full Board does not learn of this action if the expert determines there is no impairment or safety concern. Your case is closed with a “no action” letter.

It is in this stage in the process that counsel is very important. Remember, the first stage is dealing with an investigator. This second stage is preparing to meet with the prosecutor’s expert who determines whether an drug or medical impairment exists. Here, counsel’s preparation and attendance at the evaluation significantly improves your performance and probably leads to a “no action” letter.

What is your set of facts? I have read factual allegations ranging from merely falling asleep in the 7P-7A shift, with nothing else, to criminal allegations of drug diversion, money theft, and multiple drunk driving offenses. The majority of my recent cases involve very specious suggestions of alcohol or drug use with no chemical evidence. Anecdotes include an employer securing a positive reading on a portable breath tests (PBT) due to mouth wash. Suggestions of improper drug wasting procedures with no positive drug test are rampant. Absent proof of drug use, the expert will rely on the actual evaluation and a medical records review.

Significantly, the time delay after the initial job incident creates an advantage for the licensee. In this heightened reporting environment, front line investigators are overworked with very high case loads. Prosecutors’ case loads preclude them from emergently filing petitions. Delays are routine.

It is in this time period that baseless suspicions of drug use can be countered and put to rest. Retaining counsel is the first course of action. Bi-monthly drug tests and accumulation of medical records and license qualifications are the next steps. Preparation for the pending mental and physical evaluation is the priority. An effective performance at the evaluation is the most important.

How well you prepare for and present yourself at the evaluation will determine how your case will conclude. A recent hearing officer’s report described a professional unable to directly answer the expert’s questions, appearing to be high, and failing to accurately and adequately set forth her medical history to counter suggestions or inferences of long term prescription drug abuse. Attending the evaluation pro se (without an attorney), she was unprepared and not expecting the trap into which she was cast. A lengthy suspension was ordered.

Properly preparing for the Mental and Physical exam is not just securing all medical records and documentation of care. It is ensuring you have counsel to properly present to the expert you and your case. Developing a theory of you and your case to effectively explain the work place incident or medical care is paramount. Ultimately, failure to effectively communicate your story will sabotage your career and endanger your license.

Please call me to discuss the application for a Mental and Physical evaluation that arrived in the mail.

Typical PHMP and PNAP Investigator Trap Tactics

My last several blogs dealt with Pennsylvania licensing board investigator trap tactics. A March 14, 2014 New York Times article identifies the same type of measures on a national scale. The article appeared NY Times business section and is entitled a Dragnet at Dewey and Lebouf Snares A Minnow.

The article set forth the course of conduct of FBI, DEA, Securities and Exchange Commission, and other state investigators use in ensnaring unsuspecting and unsophisticated targets. The strategy depicts the same typical, atrocious,and surreptitious investigatory techniques that you can now expect, and for which I have witnessed, from Pa State Board investigators. In the NY criminal case, the target of the case was a low-level office administrator/potential business attorney and a multimillion dollar law firm.

The New York State investigatory authorities reached out to Zachary Warren regarding the premature bankruptcy and business failing of the national law firm. This young individual was extremely ethical, graduated from Georgetown law school, clerked for a Federal District Court judge and a Sixth Circuit Court of Appeals Judge. He was confident in his lack of involvement in any criminal activities. He happily met with the S EC investigator.

However, at that first meeting, along with the NY State investigator, also present was a SEC lawyer, an assistant district attorney, a FBI agent. Other New York State prosecutors were listing and participating over the phone. This unseasoned and young attorney, previously a simple paralegal, was not prepared by any attorney for the meeting. He had never been questioned before, and had not engaged in any legal practice that would have prepared for the type of questioning put to him by attorneys, FBI, and SEC investigators.

Apparently, the article reads, he became quite defensive, did not do well in the eyes of the lawyers with whom he was meeting. They set up the meeting with one person, brought ten, and secured unsuspecting incriminating admission/statements about some part of a investigation of which Mr. Warren was completely unaware. Skip forward three years. He has been indicted and is named as one of the main defendants in the criminal bankruptcy fraud proceedings against the defunct firm’s former leaders.

This is a text book example of devious investigators from any state agency that underscore my concerns for any unseasoned licensee talking to any PA State board investigator or attorney general’s office detective about any investigation. It is their goal to secure an admission of inappropriate conduct from any unprepared, nervous individual of whom they are investigating. First scare them into meeting and then secure statements that will be used against them in the future. This is what happened in Mr. Warren.

Pennsylvania licensing board investigators and Attorney General state trooper/detectives are engaging in this same conduct in trying to secure meetings with young unsuspecting nurses, physical therapist, physicians assistants, or doctors. The typical language they use is, “we want to get your side of the story “or we just want to hear what you have to say to make sure the investigation is balanced”. Do not aid or assist in any part of their investigation.

Enticements like this trap young, unsuspecting and inexperienced individuals in the legal wares of these officers. Admissions eliminate any need for these state employees to do any part of their job; find evidence and investigate the case. Once you talk, you give them the case. Say nothing and refuse to meet. You are not compelled, required, or forced to meet. You are not required to cooperate and incriminate yourself.

These are serious cases being investigated by seasoned attorneys and retired police officer investigators. It is their goal to have the individual licensee do the job of the investigator. Securing admissions of drug use, diverting drugs, or any type of impairments will foreclose a licensee’s future.  Call me before you meet with anyone or talk with anyone over the phone.

I Have Been Contacted by a State Licensing Board Investigator! HELP

This blog will discuss what to do when a state licensing board investigator confronts you regarding an anonymous report of drug use, drug impairment, or mental health issues.

Professional license investigations stem from several sources. The most prolific of which is failing work-place drug tests. (State law mandates medical employers report positive drugs tests for any illegal or prescribed narcotic for which no prescription is possessed.) The next avenue is new employment related failed drug test. The third source is when you self-report on the bi-annual license renewal a conviction for D.U.I. or a drug-related felony criminal offense. The final and most surreptitious way an investigation commences is an anonymous source complaining to the Board of your alleged drug use or mental health treatment.

The anonymous source is most troubling because it typically arises from a domestic dispute after which a scorned partner revengefully, but confidentially, reports your personal drug use, drug treatment, mental health care, or other improprieties. This source raises serious legal issues because it addresses private conduct, not related to work, not stemming from any workplace investigation, for which no criminal charges have been levied, and for which there is no evidence other than the reporter’s own words. Competence and impairment are not the focus of the complaint, but rather personal retribution.

Once the anonymous complaint is made, the typical state-agent investigatory pattern is as follows: 1) first they leaving you telephone message, then 2) leave business cards at your front door, and/or 3) attempt early evening surprise visits to your home. Absent positive drug tests, criminal investigations, or workplace reporting, the investigator will seek statements/admissions to corroborate the basis of the investigation.  They want you to talk to make their job easier.  If you admit, the investigation is successful.

Statements are relatively easy to secure if you fall for the tricks. The investigator (a retired cop from Pittsburgh or Philadelphia) typically suggests:

1) “This could help avoid disciplinary action…”
2) “I am here to give you a chance to tell your side of the story…”
3) “You can tell your side of the story…” ; and
4) “I am here to make sure I have all of the information to tell the Board.”

All of these ice breakers suggest innocence, but are clearly and surreptitiously used to imply the statement will help you.  Admitting to an impairment, drug use, or diversion will only hurt you and your license. If you give a cathartic admission of drug use or diversion, thinking such will appease and conclude an investigation, you are sadly incorrect.

In many cases, the only evidence of drug use stems from the licensee’s (your) own mouth (the admission). While there is a confidential report from which the investigation starts, there is no failed drug test, work place admission, criminal case, or DUI B.A.C. test result. There is no evidence. An admission gives the investigatory reason to continue the investigation.

After an admission, the investigator will seek medical authorizations, inpatient treatment records, and the like to support a broader impairment investigation. The investigator will surely NOT (based upon one’s licensees own admissions of drug use) terminate any investigation upon receipt of drug use evidence. An admission to an impairment will necessitate a monitoring program. (Please see my other blogs about the rigorous nature of, and admissions required prior to, enrollment in any monitoring program for any licensee.)

So what is one to do? It is my recommendation that you immediately contact counsel. Do not make any statement against your license to any investigator. Absent cooperation, it is extremely difficult for the investigator to accumulate any evidence of drug use or impairment.

Inpatient treatment is just that, inpatient and confidential.  Inpatient treatment on a short-term basis does not imply impairment. Many licensees have unrelated medical conditions for which prescription medications are medically authorized, taken, and appropriately sought to be weaned off of. Mere admission into an inpatient program to properly wean oneself off of Ambien, hydrocodone, Percocet, any other benzo’s, or prescription narcotic does not mean a finding of impairment or addiction.

Statements to investigators of casual/social alcohol or illicit narcotic use (marijuana or cocaine) will require further historical development of drug use from youth through adulthood. Admissions of drug use during teenage or college years permit investigators, social workers, assessors, evaluators, and other “quasi-drug addiction professional” (who work in the drug treatment centers where the Board evaluations are completed) to conclude long-term addiction and use histories. Current impairment conclusions will be based on such historical statements and for which monitoring will be required.

Consequently, anybody and everybody should not talk of these investigators without contacting counsel. Please call me to discuss your scenario.

Holiday Financial Problems and your Professional License

Every year, the holiday time brings joy and financial difficulty. If you are a licensee with access to clients’ private residences, personal effects, and property, taking advantage of that access in an illegal way will cause you to lose your license. Stealing from infirm, disabled, or elderly clients to support a holiday life style, have gifts for your family, or pay utility bills is an unforgivable offense.

In these cases, typically video monitoring, family complaints, or client reporting triggers police investigations, criminal charges, and court appearances. Ultimately, you could be charged with theft by unlawful taking or disposition, a violation of 18 Pa. C.S. § 3921(a), and receiving stolen property, a violation of 18 Pa. C.S. § 3925(a).

Whether a licensee receives ARD (pre-trial probation without a verdict or guilty plea) or probation after a guilty plea, the licensing Boards take a hard look at these cases. It important to understand why. A similar disciplinary provision in each Board’s regulatory scheme, 63 P.S. §§ 666(a)(3), (4) and (8) , provides:
(a) The board may refuse, suspend or revoke any license in any case where the board shall find, that the licensee
(3) Has willfully or repeatedly violated any of the provisions of this act or of the regulations of the board;
(4) Has committed fraud or deceit in the practice of practical nursing or in securing his or her admission to such practice or to practical nursing school;
(8) Has been guilty of unprofessional conduct or such conduct as to require a suspension or revocation in the public interest ….
If you are not charged with a criminal offense, the Board investigators will investigate the cases, and the prosecutors may charge a violation of 49 Pa. Code § 21.148(b)(4), which provides: “a licensed practical nurse may not … [m]isappropriate equipment, materials, property, drugs or money from an employer or patient.”

Typically the hearing officer who conducts the hearing on behalf of the Board, which accepts the hearing officer’s case decision can still reject the agreed upon sanction. That can occur for any number of reasons. However, involving an attorney in these matters early and quickly is important.
In one case, a licensee admitted that even as a hard working nurse making good money, she was desperate to provide for her family, and did take the money from her patient in order to pay her electric bill. In this case, the Board found that the licensee, although admitted into ARD and the matter was expunged before her next reporting date, did violate the sacred trust that patients place in their caregivers, and that violation is exacerbated by Licensee’s actions which constituted elder abuse. The Board determined that the licensee took advantage of her elderly patient for her own financial gain.

Under professional licensing statutes such as the [Act], the Board is charged with the responsibility and authority to oversee the profession and to regulate and license professionals to protect the public health and safety. Barran v. State Bd. of Med., 670 A.2d 765 (Pa. Cmwlth. 1996)]. The Board did agree with the hearing examiner that [Licensee’s] conduct was willful and did breach the fundamental element of trust, which in turn taints the nursing profession. The Board however, concluded that the [Licensee’s] conduct is deserving of a more substantial sanction, than determined by the hearing officer, to protect the public health and safety.

The Licensee strenuously argued that her expunged record precluded any use of the criminal record in the disciplinary proceedings. Citing the Criminal History Record Information Act, 18 Pa. C.S. §§ 9101-83, (the criminal code provision allowing for expungments) Licensee contended the Board erred in relying on an expunged offense as the basis for its disciplinary action. Licensee’s criminal record was expunged in April 2008. Licensee thus asserts the Board’s November 2008 order violated 18 Pa. C.S. § 9124 (relating to use of records by licensing agencies). Licensee argues the Board’s revocation order is based on the hearing examiner’s August 2007 findings and conclusions, which cited Licensee’s criminal record. Thus Licensee asserts the Board violated 18 Pa. C.S. § 9124(b) and her right to be free from the difficulties and hardships of a criminal record. See Commonwealth v. Butler, 448 Pa. Super. 582, 672 A.2d 806 (Pa. Super. 1996) (arrest record can be harmful to an individual’s reputation and opportunities for advancement in life).

However, because the licensee was not represented at the hearing or failed to properly answer the original Board pleadings citing to the criminal record, the Board found that the licensee waived this argument by failing to raise it either in her answer to the order to show cause or at any time before the Board’s final order. Pa. R.A.P. 1551(a). In addition, the licensee did not file a brief on exceptions challenging the hearing examiner’s proposed adjudication. Issues not raised in exceptions to the Board’s proposed adjudication are considered waived. 1 Pa. Code § 35.213; Mostatab v. State Bd. of Dentistry, 881 A.2d 1271 (Pa. Cmwlth. 2005). See also Kindle v. State Bd. of Nursing Exam’rs, 512 Pa. 44, 515 A.2d 1342 (1986) (defense of laches must be raised at administrative level or it is waived).

Nonetheless, the Board alternatively argued that even without the criminal record, it could still find that the licensee committed fraud or deceit in the practice of nursing, engaged in unprofessional conduct and willfully violated a Board regulation. This conclusion may have been made by the licensee’ unrepresented factual admissions to an investigator, licensee’s testimony, or answers to the pleadings that while on duty, licensee committed theft by taking $ 125 from an elderly patient’s wallet. From these admissions, the Court ruled that the Board did not charge licensee with violating the Act due to her criminal conviction, but based upon the factual admissions of misconduct on the date in question.

The lessons learned from the cases is simple. Make sure you have counsel as soon as a work place investigation begins to properly protect your legal rights, don’t say anything stupid to a state investigator, and hire counsel that is aware of the pit falls of the factual allegation, pleadings, and presenting certain testimony at the hearing before the hearing officer. The proper framing of the case and what evidence is introduced into the record, upon which the formal Board will rely when agreeing to or modifying certain sanction, is important. Every step in the process is similar to a slow moving chess game. If you or your counsel does not know how to play the game of chess, you will be outwitted, out smarted, and lose your license.

Please call to discuss your case, any pending criminal matters, and the status of the license investigation.

Summer 2013 DUI Update

So far this summer, Pennsylvania’s Superior Court issued two very significant DUI decisions. The first ruling was handed down the case of Commonwealth v. Musau. The second decision was presented in Commonwealth v. Barker.

In Musau the trial court found Musau guilty of driving under the influence of alcohol in violation of 75 Pa. C.S.A. §3802(a) (general impairment), his a second offense, and graded the conviction as a first-degree misdemeanor pursuant to 75 Pa C.S.A. §3803(b) (4). The trial court sentenced Musau to ninety days to five years in jail.

On appeal Musau argued there was a conflict between § 3802(a) (which carries a maximum of six months supervision) and §3803(b) (4) (that identifies a violation of § 3802(a), 2nd offense, as a first-degree misdemeanor which carries a potential five years supervision). In light of the statutory conflict, Musau argued his supervision could only be ninety days and not five years. Superior Court agreed.

After reviewing the sentencing provisions of the specific DUI statute, 75 Pa. C.S.A. §3802, et seq., and the general sentencing parameters of the criminal code under 18 Pa. C.S.A. §106(b) (6), (e), the court concluded that if an individual is only found guilty of the “general impairment” provision of §3802(a) and not §3802(c) or (d), the maximum potential supervisory sentence is six-months and not five years. The important part of this case is just that: if a court finds a person who may have refused the blood or breath test guilty under § 3802(a) only, as a second offense, and not § 3802(c) or (d), the sentencing maximum is six months, not five years.

The lesson here is to specifically ensure any refusal charges §3802(d) are either dismissed or withdrawn at a preliminary hearing in the counties or a finding of not guilty in Philadelphia Municipal Court. Thereafter, the trial court may only, if the evidence is sufficient, find guilt under §3802(a), a general impairment conviction. Sentencing will then be governed by the DUI statute and ninety days, not the Crimes Code.

The second case is Commonwealth v. William Barker. The case began as a garden-variety motor vehicle infraction, typical traffic stop, and suspicion of DUI.  However, competent counsel convert the case into a discussion of motorists’ right to an alternative blood tests under 75 Pa. C.S.A. §1547(i) and a police officer’s violation of the refusal statute, not the motorist’s.

For those unaware, 75 Pa. C.S.A. §1547 is the Pennsylvania implied consent provision of the Pa motor vehicle code allowing for the police to request the operator of a motor vehicle suspected of DUI to submit to a breathalyzer test or have their blood drawn at an appropriate medical facility.  If they refusal the criminal sentence may be worse and at least a 1 year license suspension separate from the DUI may follow.

The appeals court addressed §1547 in the context of a §3802(d) refusal case. §3802 (d) is the DUI refusal statute law enforcement may charge individuals who have “refused” to submit to any chemical test requested pursuant to §1547. 75 Pa.C.S.A. §3802(d) (2) defines driving under the influence as follows: An individual may not drive, operator, or be in actual physical control of the movement of the vehicle under the influence of drugs or a combination of drugs to a degree to which impairs the ability to drive safely, operate or be an actual physical control of the movement of the vehicle.

Barker testified that he advised the investigating officer he would take any blood test that would establish his innocence, including paying for any test. Barker testified that he suffered a prior medical infection from the hospital to which he was taken, spending seven days there. At trial Barker was found guilty of violating §3802(d) (2) and was sentenced as a refusal.
Barker appealed the guilty finding under the refusal statute arguing that 75 Pa.C.S.A. §1547(i) specifically states: Request by driver for test: Any person involved in an accident or placed under arrest for violation of section… 3802… may request a chemical test of his breath, blood or your peers such request shall be honored when it is reasonably practical to do so.

At trial, the arresting officer did not testify that it was not reasonably practical to take Barker to a different location for the blood draw. Superior Court found this important. “Although section §1547 delineates the tests that may be used and the manners within which the tests must be conducted, §1547(i) does not indicate what constitutes ‘reasonably practical’ for an alternative test and an officer’s ability to reject a motorist’s request for an alternative means of testing at the time of arrest.” Stated another way, the court concluded that an investigating officer “shall honor a motorist’s request when it is ‘reasonably practical’ to do so”.

The court emphasized that the statute “presumes the validity of the motorist’s request and vests the officer with the discretion to decline the request for alternative testing only if the circumstances render the testing incapable of being put into practice with the available means”. The court went on to state that the statutory language does not continence an officer’s “arbitrary refusal” to decline an alternative test request.

The officer may decline the alternative test only if the test requested is not within the means available at the time the testing is sought. While the statute protects the arbitrary whims of motorists who might demand alternate forms of testing, the statute does not allow arbitrary conduct of the police officer in denying motorist’s requests when practical.

Consequently, the court stated that when an arresting officer arbitrarily refuses to allow alternative testing a motorist requests he deprives that motorist evidence admissible in any subsequent prosecution under § 3802, not just those prosecutions under 3802(c) or (d). This is significant in that in any DUI prosecution, an officer must comply with a request for an alternative testing at a different hospital or in a different manner, based upon an appropriate objection, medical condition, or phobia, if such alternate testing is practical under the circumstances.

The court found that when the arresting officer arbitrarily refused Barker’s request for an alternate test which would have produced evidence that may have proven his innocent, the officer substantially impeded Barker’s due process rights. Having found the police, not Barker, violated  § 1547, the appeals court concluded that the arresting officer’s “refusal to honor the statute’s provisions yields a resolution that deprived Barker of admission of evidence that, had it been available, would have been relevant to the charges at issue.” Such violation undermined Barker’s ability to counter the Commonwealth’s allegations and, therefore, warranted granting Barker’s appeal and dismissal of all charges.

Probation Officer Special Rule–extra judicial conditions

In the recent case of Commonwealth v. Elliott, 2012 Pa. LEXIS 2088, 12-13 (Pa. 2012), the Pennsylvania Supreme Court was confronted with the issues of whether a county board of probation offices, or the agents and officers thereof, can impose conditions upon probationers that are not explicitly delineated in a trial court’s sentencing and probation order. The Court concluded that this inquiry revolves around an interpretation of the Sentencing Code, 42 Pa.C.S. §§ 9701, et seq., as well as the Prisons and Parole Code, 61 P.S. § 1, et seq. and 61 Pa.C.S. § 101, et seq. The court also examined the relationship between “terms and conditions of probation,” as used in Sections 9754 and 9771 of the Sentencing Code, which a trial court imposes, and “conditions of supervision” as contemplated by the Prisons and Parole Code, which the Board and its agents execute.

The court reviewed the fourteen conditions that a court may place upon a probationer, stating:

These conditions, found in 42 Pa.C.S. § 9754(c), “shall” be imposed by a sentencing court “to insure or assist the defendant in leading a law-abiding life.” 42 Pa.C.S. § 9754(b). Moreover, these conditions are inherently non-inclusive, because clause (13) of Section 9754(c) permits a court to impose any condition necessary to ensure the “rehabilitation of the defendant.” Id. § 9754(c). Consistent, then, with a court’s constitutional and statutory authority to impose a sentence, see e.g. id. §§ 9751, 9754, & 9771, these fourteen conditions must be the starting point in any analysis of a probation violation.

Initially, the court preliminarily agreed with Appellee that the Board and its agents cannot impose any condition of supervision it wishes, carte blanche. This would, of course, interfere with a court’s well-established sentencing authority. The Court rejected the primary argument of the Commonwealth that Section 9798.3 of Megan’s Law gives the Board independent authority to impose any condition of supervision it wishes upon a probationer subject to the sex offender provisions merely because of his status as a sex offender. Furthermore, the court noted that the legislature’s intent in promulgating Section 9897.3 was simply to permit the Board to use GPS tracking on sex offenders in furtherance of the desire to scrutinize the physical location of offenders. See Senate Journal, Jun. 19, 2006 at 1730-31 (remarks of Sens. Orie and Rafferty).

Nonetheless, the court rejected the probationer’s position that the Board has no power to impose conditions of supervision would ignore that 61 Pa.C.S. §§ 6131(a)(5)(ii) and 6151 direct the Board and its agents to establish and impose “conditions of supervision,” distinct from “conditions of probation.” The court concluded that the Board and its agents may impose conditions of supervision that are germane to, elaborate on, or interpret any conditions of probation that are imposed by the trial court. This interpretation gives meaning to all of the statutory provisions relevant to this case and thus: (1) maintains the sentencing authority solely with a trial court; (2) permits the Board and its agents to evaluate probationers on a one-on-one basis to effectuate supervision; (3) sustains the ability of the Board to impose conditions of supervision; and (4) authorizes that a probationer may be detained, arrested, and “violated” for failing to comply with either a condition of probation or a condition of supervision.

“A trial court may impose conditions of probation in a generalized manner, and the Board or its agents may impose more specific conditions of supervision pertaining to that probation, so long as those supervision conditions are in furtherance of the trial court’s conditions of probation.” Commonwealth v. Elliott, 2012 Pa. LEXIS 2088, 19-21 (Pa. 2012)

This case focused around a condition of probation that a sex offender under Megan’s Law Supervision, could not be within 1000 feet of any location that would cause him to come in contact with minor children unsupervised, which in turn would constitute a violation of his probation. The court determined that there was no evidence in the record to reach this issue and therefore sent the case back to superior court to determine such.


Is meeting with your sex offender probation officer to a polygraph test, thereby requiring you to answer many unrelated sexual history questions, a violation of your Pennsylvania and United States 5th Amendment Right against self-incrimination? YES. You must affirmatively assert your 5th Amendment rights at that meeting with your probation officer if you do not want to answer questions that will incriminate you in any other crime.
You must affirmatively say “I refuse to answer the questions for fear of incriminating myself.” In Pennsylvania, if you do not claim a 5th Amendment protection, you will have to answer the questions and the answers can be used against you. Commwealth vs. Knoble, 42 A.3d 976; 2012 Pa. LEXIS 665(May 12, 2012).
This is the huge problem for sex offender probationers. What do you say during a polygraph exam if you chose to answer the questions? Will your incriminating answers or lies be used against you? YES. Can you refuse to answer questions? YES. Can that refusal be used against you? NO.
The question in Knoble is”[w]hether the Superior Court erred in concluding a probationer did not need to affirmatively invoke his Fifth Amendment right against self-incrimination for an unrelated offense, regardless of whether the information will be used in subsequent criminal proceedings, and that the incriminating nature of the questions precluded their use in a subsequent prosecution.” Commonwealth v. Knoble, 605 Pa. 256, 988 A.2d 1288 (Pa. 2010) (per curiam).
In Knoble, the Defendant argues he was compelled to answer the polygraph questions within the meaning of the Fifth Amendment, because his probation would be revoked if he did not pass the polygraph, and his failure to raise the 5th Amendment privilege should be excused due to his belief he would be returned to prison if he did not fully participate. Essentially, Knoble argues his situation falls within an exception to the general rule requiring a witness to affirmatively raise his Fifth Amendment privilege, such that the protection against self-incrimination is automatically in place, and therefore, he did not have to affirmatively state he was invoking his 5th Amendment rights.
The PA Supreme Court clearly understood Knoble’s argument that his probation would have been revoked if he raised his Fifth Amendment privilege, either in challenging the terms of his probation or during the polygraph examination itself. Nonetheless, the court stated: “In fact, the option of challenging the terms was clearly open and available to him. Furthermore, if his probation was revoked, his probation violation would result in a hearing, at which point he could argue the probation condition was unreasonable, the violation was excusable, and the need for confinement did not outweigh governing probation policies. See 42 Pa.C.S. § 9771 (revocation of probation order requires hearing and proof of violation). In short, the probation condition did not require Knoble to choose between incriminating himself and jeopardizing his liberty. Therefore, the privilege was not self-executing, and Knoble’s failure to raise his Fifth Amendment protection cannot be excused.”
The court rejected Knoble’s argument that because the information obtained from the examination need not be used against him in order for the polygraph to be considered unconstitutional, as the information sought could lead to the disclosure of facts that would establish guilt or provide an essential link by which guilt could be established. Commonwealth v. Saranchak, 581 Pa. 490, 866 A.2d 292, 303 (Pa. 2005) (Fifth Amendment privilege applies not only to disclosure of facts which would alone establish guilt, but to any fact which may provide essential evidentiary link by which guilt could be established.)
The Knoble Court relied up the United States Supreme Court case of Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984) as an example of how the US Supreme Court addressed the issue of Fifth Amendment application to probationers. The facts are very similar. “As part of his probation, Murphy was required to participate in a sex offender treatment program, report to his probation officer as required, and be completely honest with the officer in all matters. At some point, the probation officer was advised that during the course of treatment, Murphy admitted to a previous rape and murder. The officer set up a meeting with Murphy, and Murphy admitted to the previous rape and murder. The officer informed Murphy she had a duty to inform the authorities of the conduct; Murphy was eventually arrested and charged with first degree murder.” Id., at 422-25.
The US Supreme Court granted certiorari to consider whether “a statement made by a probationer to his probation officer without prior warnings is admissible in a subsequent criminal proceeding.” The Court noted the Fifth Amendment privilege speaks to compulsion and does not preclude voluntary testimony regarding incriminatory matters; therefore, if a speaker desires the privilege’s protection, he must claim it, or his statement will not be considered “compelled” within the meaning of the Constitution. Id., at 427 (citing United States v. Monia, 317 U.S. 424, 427, 63 S. Ct. 409, 87 L. Ed. 376 (1943)). The Court believed the general requirement to appear and truthfully answer questions did not convert otherwise voluntary statements into compelled ones unless one is required to answer over a valid claim of privilege. Id. Thus, if a speaker is confronted with questions the government should reasonably expect to elicit incriminating evidence, he must generally assert the privilege rather than answer the question if he wishes to avoid self-incrimination. Id., at 429.
The Court noted, while there are well-defined exceptions to this general rule, the exceptions involve some “identifiable factor” which effectively denies the witness the option to admit, deny, or refuse to answer. The Court found no such factor present, and specifically found Murphy’s meeting with his probation officer did not amount to a custodial interrogation requiring Miranda warnings. Id., at 429-30; Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Thus, as Murphy did not assert his privilege, the probation officer’s testimony regarding the incriminating statements was admissible. Murphy, at 440.
This is the same rule of law in the Commonwealth of Pennsylvania.

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