A Fringe Benefit of Practicing Law in the Commonwealth of Pennsylvania

There are many benefits to being a licensed, practicing lawyer in this country and Commonwealth.  One fringe benefit (and I mean fringe) of practicing law in the Commonwealth of Pennsylvania is driving through and to the counties in this jurisdiction.  Practicing in Delaware, Chester, York, Lebanon, Dauphin, Luzerne, Montgomery, Lackawanna, Berks, Bucks, Carbon, Lancaster, Northampton, Monroe, Clearfield, Blair, Center counties, I drive throughout the Commonwealth.  The word Commonwealth does not do justice to the beauty of the counties in which I travel and the courthouse in which I practice.

Monroe County Court House Square

 

One recent cool, spring day I had the pleasure of a relaxing drive from my home in the suburbs of Philadelphia to the Monroe County Courthouse in the quaint hamlet of Strousburg, Pa.  I left my home at 7:00 am.  By 7:45 I entered the Lehigh Valley and was approaching the scenic Delaware River Water Gap area.  I left Philadelphia in a heavy fog, arriving in the Lehigh Valley as the fog began dissipating from the  mountain valleys.   Steamy slopes and long shadows were cast as the sun climbed over the hills and heated the morning sky.  Route 78’s mountain passes were freed from their foggy blanket revealing the height of the tree-topped slops.  What a peaceful ride.  The rich majesty of Penn’s Woods (the translation of the word Pennsylvania) became evident.

The coffee shop on the square at the Monroe County Court House, Strousburg, Pa

Home made scones, croissants, and danish.

Upon arriving in Monroe county and the courthouse square, I had the pleasure of stopping for coffee at the café duet. Pictured above, I partook in a croissant and perfect cappuccino in the a sun-lit square.  I could have been in any hamlet or borough in another country.  I, however had the pleasure of attending to my profession, take care of a valued client, and being given the opportunity to enjoy Monroe County.

In between mentally organizing my case, I day dreamed about the incredible mountain bike riding trails that snaked through the various gorges, streams, and mountain passes. Exercising both my mind and body is a wonderful activity I engage in on a daily basis.  I will be in Center, Blair, and Clearfield counties over the next several weeks.  I will cherish my time and my profession while I enjoy the best the Commonwealth has to offer this summer.

Call me about your legal matter.

To Testify or Not – A Licensee’s Hearing Rights

The confluence of administrative and criminal procedure is a significant issue I confront defending licensee disciplinary cases.  Sometimes, during a hearing, or a pre-complaint investigatory meeting, a licensee is asked — almost expected — to give a statement.  During a hearing, with a criminal case pending, a licensee sometimes must strategically choose or not to testify.  This issue was recently addressed in the case of Blair Anthony Hawkins v. Bureau of Prof’l & Occupational Affairs, 2017 Pa. Commw. Unpub. LEXIS 112 (Commw. Ct. Feb. 16, 2017).

In that matter, after the Department presented its evidence, Hawkins argued that the Board denied him a full and fair hearing when it failed to continue the hearing until after the resolution of the criminal case, thus resulting in Hawkins’ decision to invoke his Fifth Amendment right against self-incrimination before the Board.  However, Hawkins was not forced to testify.  Hawkins invoked his 5th Amendment Rights against self-incrimination.

A hearing was held on January 8, 2016, at which Petitioner renewed his request for a continuance until after the criminal charges were resolved. The Board denied the continuance request. Therefore, Hawkins asserted his Fifth Amendment right against self-incrimination and did not answer any questions.  This looks horrible in a hearing.

Prior to the hearing, the parties exchanged pre-hearing statements, identified witnesses and exhibits, and participated in a pre-hearing conferences. On the day before the hearing, Petitioner requested a continuance via email, until Hawkins’ criminal charges were resolved. The Department opposed the continuance request. The Board denied the continuance, noting that Petitioner had previously been granted a continuance, had indicated that he was available for the hearing on January 8, 2016, had participated in a pre-hearing conference a few days prior, and had failed to identify an emergent reason for requiring a continuance.

Initially, the continuance request was handled improperly.  Either at a pre-hearing conference, or in a separate motion to continue the hearing, counsel for Hawkins should have sought a continuance much sooner, with greater vigor.  Counsel, not Hawkins, put his client in the trap the licensee board prosecutors set.  The Board prosecutor set the trap, showed the trap to counsel, and counsel messed up the case.  The matter should have been continued way before the hearing until after the criminal case had resolved.

In reviewing the choice to testify or not, the Board looked to prior case law.  In Herberg v. Commonwealth, State Board of Medical Education & Licensure, 42 A.2d 411, 412 (Pa. Cmwlth. 1982), a physician’s medical license was revoked and the physician argued that during the hearing before the board, his rights pursuant to the Fourteenth and Fifth Amendments of the United States Constitution were violated. The physician invoked his Fifth Amendment right against self-incrimination so that his testimony before the board could not be used in a later criminal proceeding.  Commonwealth Court determined that:

‘[T]here [is nothing] inherently repugnant to due process in requiring the doctor to choose between giving testimony at the disciplinary hearing, a course that may help the criminal prosecutors, and keeping silent, a course that may lead to the loss of his license.'[A]bsent a finding that a physician was forced to testify against himself, a medical disciplinary board was not constitutionally required to stay its proceedings until the criminal prosecutions against the doctor were over.

In Hawkins, the licensee was called as a witness, chose not to testify, and was not forced to testify. Thus, Hawkins’ Fifth Amendment right against self-incrimination was not violated because the Board honored his choice not to testify. Further, due process rights are not violated simply because a decision on whether to testify is arduous. See PSI Upsilon v. University of Pennsylvania, 591 A.2d 755, 760 (Pa. Super. 1991). Hawkins made what was assuredly a hard decision not to testify; however, making this decision did not result in a violation of his due process rights. See Herberg, 42 A.2d at 413. The Board did not err or abuse its discretion when it held Hawkins’ disciplinary hearing prior to his criminal proceeding, thus making Hawkins choose between testifying or asserting his privilege against self-incrimination.

Call me to talk about your case, investigators wanting you to give a pre-complaint statement, and how to handle your up coming hearing.

 

Pennsylvania’s DUI Statute and Warrantless Blood Draws — No Proof of Intoxication

Several months ago I wrote about the June 23, 2016, the United States Supreme Court decision in three companion cases — Birchfield v. N. Dakota, 136 S.Ct. 2160, 2173, 2185, 195 L. Ed. 2d 560 (2016).  Pennsylvania’s appellate courts have finally reviewed and decided a case addressing, in the context of a warrantless blood draw in a DUI, what is consent in Pennsylvania.

A review of the DUI informed consent issue is a good place to start.  Consistent with 75 Pa. C.S.A. §1547(c) the Pennsylvania’s Motor Vehicle code imposes evidentiary admissibility standards for blood tests consensually drawn without a warrant. Pennsylvania’s Motor Vehicle code addressing driving under the influence (“DUI”) of alcohol or controlled substances, 75 Pa. C.S.A. § 3802 (b)(c) & (d) each contain as an essential element of the criminal offense a defendant’s blood alcohol concentration level.

The grading provisions of the Pennsylvania Motor Vehicle code, 75 Pa. C.S.A. §3803(d), as they relate to DUI charges, identify in subsections 1 through 4 that any individual who is under investigation for violating 75 Pa.C.S.A. § 3802, et seq., (accusing an individual of operating a motor vehicle under the influence of drugs or alcohol such that they are incapable of safely driving) and refuses to voluntary submit to a warrant-less blood test, is to receive enhanced criminal sentencing terms of incarceration solely as a result of the refusal to voluntarily submit to the blood draw.

Birchfield  focuses on the legality of motorists lawfully arrested for drunk driving subject to enhanced criminal penalties for refusing to allow a warrantless blood draw to measure the level of alcohol in their blood stream. The Supreme Court rejects North Dakota’s asserted need to obtain blood alcohol readings absent a warrant in light of the fact that its motor vehicle code implied consent laws, similarly to Pennsylvania’s, provide for separate and enhanced criminal sentencing terms of incarceration solely as a result of the refusal to voluntarily submit to the blood draw.

Birchfield approves of implied consent laws such as 75 Pa.C.S.A. § 1547 that impose civil penalties and evidentiary consequences on motorists who refused to comply breath tests. However, Birchfield then rules it is unconstitutional for a state to insist upon an intrusive blood test and then to impose criminal penalties on those who refuse to submit to those same tests. “There must be a limit to the consequences to which motorists may have deemed to consent by virtue of a decision to drive on a public road.”

Birchfield makes clear the Pennsylvania’s Motor Vehicle Law, 75 Pa.C.S.A. §3802, et. seq., is unconstitutional because it provides for enhanced criminal penalties of those accused of operating a motor vehicle under the influence of drugs or alcohol when, during a search incident to a lawful arrest, the defendant who refuses to submit a warrantless blood draw pursuant to 75 Pa. C.S.A. §1547 and/or § 3802 is subject to enhanced criminal penalties.

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

The case of Commonwealth v. Evans, 2016 PA Super 293  (December 20, 2016), is the first major Pennsylvania Appellate Court decision discussing Pennsylvania’s DUI statute, the Implied Consent Law (“O’Connell Warnings”), and the prosecutor’s burden of proof at the suppression hearing.  Evans holds that a defendant does not have to prove they gave consent only based upon the threat of a more severe criminal penalty (jail and further license suspension).  Rather, the statute itself establishes this burden and the Prosecutor must rebut that legal presumption.  Because there is no ability to rebut a presumption of illegitimate consent when threatened with enhanced jail penalties, all motions to suppress must be granted.

Call me to discuss your DUI, the warrantless search of your blood, whether you consented or not, and the professional license issues as a result of the DUI.

Professional License Indefinite Suspensions for Missing the Mental and Physical Evaluation

Board authority to  compel a mental and physical examination(“MPE”)  is pursuant to 63 P. S. § 2205(D)(1).  The purpose of the evaluation is to determine whether, under 63 P. S. 224(a)(2) for nurses, a licensee is unable to practice their profession with reasonable skill and safety by reason of mental or physical illness or condition or psychological or physiological dependence on alcohol, hallucinogenic on narcotic or other drugs that impair judgment and coordination.  Similar impairment evaluation provisions are contained in each of the twenty six different Pennsylvania licensing schemes.

A formal board order compelling attendance always accompanies these Petitions.  The Board signs the order to compel both attendance and compliance with document production requirements.  Typically, these petitions are filed, licensees show up at the expert’s office for the examination compliant with the terms and conditions of the MPE order.  It is the unique case where a licensee does not show up and their license is summarily suspended.

License suspension is based upon the Pennsylvania Code provisions that states,  if a licensee fails to attend the MPE,  the allegations of impairment are deemed true.  The admissions of fact and law allow the Board to conclude impairment and formal suspension is ordered.   License reinstatement after this step requires attending a PHMP expert evaluation (at the licensee’s expense) and complying with all other aspects of the suspension order.
Why or how would a licensee not go to the Mental and Physical Evaluation?  Failure to maintain an up-to-date address with one’s Pennsylvania licensing board, resulting in missed notices is the first way. Secondly, thinking these appointments can be unilaterally changed or failing to properly communicate scheduling conflicts create huge problems.  Minor inconveniences though do not warrant not attending the procedure.  The last way is the simplest; a licensee simply does not attend the evaluation for fear of the result.
Case law discussing these provisions specifically requires proper Board notification of the MPE and suspension to the licensee’s address of record.  The address on record is the address to which the Board is required to provide notice of a disciplinary action in order to honor its constitutional due process obligations.  The Board only needs to provide proof of service via regular and certified mail.  It is licensees burden to attend or reschedule the evaluation.
Why do licensees have to go to these evaluations?  Section 224(a)(2) of the Nursing law, for example, is the standard provision in every regulatory board scheme.  Board prosecutors receive information suggesting an impairment.   In seeking licensure, licensees agree to be regulated by the State.  Licensees agree to honor the provisions of Pennsylvania code and case law interpreting the code.

The MPE is just such a provision in an over arching regulatory scheme the Commonwealth has erected to protect its citizens from errant and high licensees (realtors, doctors, pharmacists, nurses and the like).  My blogs deal with my role in preparing each licensee for the MPE. However, I cannot accept mail for each licensee. Once we are retained, I am able to re-scheduled the MPE with consent of either the doctor, Board counsel or prosecuting counsel.  This allows me time to assist the licensee organize their documents and prepare for this expert examination.  I cannot receive the mail.

The consequence on the licensee of not attending the evaluation is significant. While not immediate, eventual license suspension for failure to honor a Board order will occur. Reinstatement will only take place upon attendance of that MPE.  Additional requirements include providing a criminal background check, proof of compliance with all continuing education burdens, proof of no practice during the term of suspension, and payment of investigatory costs.
As well, included in the typical MPE order is the Board paying for the evaluation.  Once a licensee refuses or fails to attend the MPE, the MPE expert evaluation expense must be borne by the licensees.   Please call me to discuss your recent mail compelling you to attend a mental and physical examination.or suspending your license for missing one.

Expanded Psychology Board Disciplinary Authority

On June 23, 2016 the General assembly approved act 2016–53. This is a new provision in the the Psychology Board Act.  It became effective August 23, 2016.  This an amendment to the Psychology Board’s authority in disciplining it’s licensees. The specific section in bold states:

(b) When the board finds that the license or application for license of any person may be refused, revoked, restricted or suspended under the terms of subsection (a), the board may:

(1) Deny the application for a license.

(2) Administer a public reprimand.

(3) Revoke, suspend, limit or otherwise restrict a license as determined by the board.

(4) Require a licensee to submit to the care, counseling or treatment of a physician or a psychologist designated by the board.

(5) Suspend enforcement of its findings thereof and place a licensee on probation with the right to vacate the probationary order for noncompliance.

(6) Restore a suspended license to practice psychology and impose any disciplinary or corrective measure which it might originally have imposed.

(7) Take other action as the board in the board’s discretion considers proper, including precluding a suspended licensee from engaging in counseling or any other form of mental health practice.

The import of the new (b)(7) provision cannot be under stated. The legislature has given the Board authority to take “other action” within the “Board’s discretion it considers proper”. This is just about anything.  The case law discussing licensing boards authority to discipline their licensees is clear.

Appellate review of a discretionary Board action is limited to determining whether constitutional rights have been violated, an error of law committed, or necessary findings of fact are supported by substantial evidence. 2 Pa.C.S. § 704; Cassella v. Pennsylvania Board of Medicine, Bureau of Professions and Occupations, 119 Pa. Commonwealth Ct. 394, 547 A.2d 506 (1988); DePanfilis v. State Board of Pharmacy, 121 Pa. Commonwealth Ct. 526, 551 A.2d 344 (1988). The State Board of Nursing is the ultimate fact finder and may accept or reject the testimony of any witness in whole or in part.

The proper review of an agency’s action, assuming that it is not defective under the self-explanatory requirements of § 704 of the Administrative Agency Law, 2 Pa. Cons. Stat. § 704, is not whether its order was reasonable, but whether it was made in accordance with law, i.e., whether it was made in bad faith, and whether it was fraudulent or capricious. A reviewing court may interfere in an agency decision only when there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions. Slawek v. Commonwealth, State Bd. of Med. Educ. & Licensure, 526 Pa. 316, 318, 586 A.2d 362, 363 (1991).

Where a full and complete record is made of the proceedings before the State Board of Nursing, a reviewing court must affirm the adjudication unless it is in violation of the constitutional rights of the appellant or not in accordance with the law, the procedural provisions of the local agency law are violated, or a finding of fact of the State Board of Nursing necessary to support its adjudication is not supported by substantial evidence. Section 754 of the Administrative Agency Law, 2 Pa. C.S. § 754. The emphasis here is that is a full and complete record is a necessity.

Substantial evidence means that the evidence required to support the finding of an administrative agency must be “such relevant evidence as a reasonable mind might accept as adequate to support the conclusion.”  Civil Service Com. V. Poles, 132 Pa. Commw. 593, 573 A.2d 1169, 1172 (1990); Gallagher v. Philadelphia State Board of Pharmacy, 16 Pa. Commw. 279, 330 A.2d 287, 289 (Pa. Commw. Ct. 1974).

It is imperative that counsel is present at any hearing to insure the trial evidence objections are properly set forth int he record.  In many cases, Board discretionary action can only be limited by insuring the evidence at the hearing is minimized against the licensee.  Or on Appeal, reviewing the record, to insure the Board decision is made in accordance with the facts presented at the hearing. Any decision based on facts outside of the record is not proper. Please call to discuss you psychology license disciplinary issues.

 

 

Hearsay, The Pharmacy Board, and Due Process

A recent client sought reinstatement of her pharmacy license after a period of suspension for failing out of the SARPH, Pennsylvania pharmacists’ drug monitoring program. The Pharmacy Board rejected her petition. I represented the pharmacist only in her appeal to the Commonwealth Court.

Prior counsel cost her her license and Markowitz did not utilize an attorney during her petition for reinstatement process, including the hearing before the Pharmacy Board.  She represented herself very poorly at that hearing.  As a result, the Commonwealth Court affirmed the Pharmacy Board’s denial of reinstatement. Carol Markowitz should have won her appeal because at the Pharmacy Board hearing the Board accepted inadmissible expert report evidence that tainted the Board’s consideration of the case.  Markowitz v. Bureau of Prof’l & Occupational Affairs, State Bd. of Pharm., 2016 Pa. Commw. Unpub. LEXIS 594, at *16 (Commw. Ct. Aug. 25, 2016).

With every SARPH or PHMP approved monitoring program, following all terms and conditions of the case worker’s demands establishes compliance with a professional board order. Lack of compliance results in prosecutors filing motion to kick licensees out of the monitoring programs and retroactively suspend their license. Thereafter, before reinstatement should be sought and can be approved by the board, licensees must prove compliance with the terms and conditions of the monitoring program as mandated by the disciplinary order suspending the license.

In  Markowitz’ circumstance, she remained drug-free, did not work, and was otherwise compliant with all terms and conditions of the SARPH program. However, during the term of her suspension, she was not enrolled in the SARPH. No SARPH case worker appeared for her at her petition for reinstatement, did not approve of her medications, and did not perform the perfunctory supervised tests to confirm her  drug-free condition.

As part of the reinstatement process, Markowitz contacted SARPH, which sent her to a fitness to return to work evaluation by Drs. Heran and Garbely. These two doctors wrote a report, which the Board utilized against Markowtiz.  Neither appeared nor and testified at the reinstatement hearing.  The prosecutor moved Drs. Heran and Garbely‘s unqualified experts report into evidence.  The Board relied upon these two individuals’ hearsay report to find Markowitz was not eligible for reinstatement.
On appeal Markowitz complained about the Board’s due process violation in considering the expert reports for which Markowitz was unable to cross examine and question the author(s) of the report. Markowitz also complained about Drs. Heran and Garbely’s competence, prior histories of license suspensions, and their own drug addiction issues that ultimately lead to their becoming drug counselors and experts.

“Hearsay is defined as an out-of-court statement, either oral or written, offered in court for the purpose of proving the truth of the matter contained in the statement.” Bailey v. Unemployment Compensation Board of Review, 142 Pa. Commw. 294, 597 A.2d 241, 243 n. 3 (Pa. Cmwlth. 1991). “Hearsay evidence, [p]roperly objected to, is not competent evidence to support a finding[ ],” but “[h]earsay evidence, [a]dmitted without objection, will be given its natural probative effect and may support a finding[ ], [i]f it is corroborated by any competent evidence in the record….” Walker v. Unemployment Compensation Board of Review, 27 Pa. Commw. 522, 367 A.2d 366, 370 (Pa. Cmwlth. 1976). “[A] finding of fact based [s]olely on hearsay will not stand.” Id.

Surprisingly, the Court ruled “It is clear that the joint report is hearsay and not corroborated by other evidence of record. We agree with Markowitz that the report of Drs. Heran and Garbely should not have been considered by the Pharmacy Board.”  Markowitz v. Bureau of Prof’l & Occupational Affairs, State Bd. of Pharm., 2016 Pa. Commw. Unpub. LEXIS 594, at *16 (Commw. Ct. Aug. 25, 2016).

Please call me to discuss your contact with these two doctors, their handling of your licensing case, and any case in which they were involved.

Pennsylvania’s Professional License Disciplinary Enforcement Environment

These are tough times.  I am receiving more calls then ever.  The issues range from PHMP and PNAP case worker treatment, prosecution enforcement actions, to delays in decisions on cases.  More than ever, experienced counsel is necessary to help navigate the treacherous waters of Pennsylvania’s over reaching, over bearing, and heightened enforcement environment.

The first set of calls I receive focus on the lack of information PHMP case workers provide when discussing the proposed monitoring agreements.  These case workers are not attorneys.  They are also not your friends.  They do not care about you.

They do not have authority or time to explain the intricacies or legal ramifications of signing the PHMP/PNAP/SARPH contract.  More importantly, again, they do not care.  The new file that has just been dropped on their desk has your name on it.  All they want to do is be done with it.  They are overworked, underpaid, and have too much legal power and responsibility over too many people to do their job fairly, correctly, or with any sense of compassion.

Their goal is to get you to sign the contract, trick you into agreeing to terms of an enforcement process of which they know you probably will not be able to perform, get you to violate the terms, and then close your file so it can be referred back to the prosecutor to file revocation proceedings.   These case workers are merely cogs in a  wheel enforcing regulatory compliance on all program participants.  They have no authority to change the terms and conditions of the program.  They don’t care how much it costs, that you can not afford it, can’t work in the beginning, have kids, have a family, have a life.  DO NOT SIGN ANYTHING UNTIL WE TALK.

The second set of calls regards attorneys who do not know the collateral consequences of criminal matters on the professional’s license and the impairment issues.  DUI charges are the typical example.  Under the new regulations, nurses must report criminal charges within 30 days of the arrest.  Under the DUI ARD process, the applicant must go to a CRN evaluation and may try to get in patient treatment to avoid jail if they are not ARD eligible.

This process conflicts with the new enforcement mechanism in every case of compelling nurses to go to Mental and Physical evaluations (see my other blogs in the archives) with the DUI pending.  Part of the Mental and Physical evaluation process is providing all mental and medical treatment records.  The newly created medical record with diagnosis and treatment recommendations, you just created by going to the in-patient program to avoid jail, from non-experts now must be provided to the Board’s expert.

Going to treatment to save jail time impacts the professional license.  Talking too much at the CRN evaluation impacts your processional license.  Hiring the wrong attorney to handle your DUI to save money on that part of the case will impact your processional license.  Too many times I have to clean up the mess made by good intending but uninformed attorneys.

DO NOT HIRE THE WRONG ATTORNEY FOR YOUR DUI OR MENTAL AND PHYSICAL EVALUATION.  IF THEY CAN NOT ANSWER PHMP OR PNAP QUESTIONS — MEANING THEY DO NOT MAKE YOU FEEL CONFIDENT OF HOW TO HANDLE THE LICENSING ISSUES — CALL ME.

Lastly, questions regarding when will a decision be handed down, what to do next, and what does the decision in my case mean — have been cropping up.  Hearing officers are over whelmed. Enforcement actions are filed involving every licensing board for any professional with criminal charges, employment related investigations, and course of care cases.  Hearings are pushed out 30, 60, 90 days.  After a hearing, briefs should be submitted in almost every case, delaying formal decisions for months.  Once a proposed adjudication and order is filed, the board reviews the decision and must accept that decision.  This takes many more months.

Then implementation of the decision takes place.  Importantly, all the while, licensees are still practicing. These delays are not good but at a minimum, the licensee is still practicing and making money.

This process is harder on the applicants without a license or the individual whose lost their license and has filed for reinstatement.  The documents were request to be accumulated during this time are huge in securing timely reinstatement of any license.

However, the Boards can and do only go so fast.  That is why fighting the case from the outset to insure no license suspension or revocation, or not going into the program and fighting the case with a license is better than losing your license with either no attorney or the wrong attorney and being at any Board’s mercy of when they will reinstate your license.  CALL ME TO PROPERLY HANDLE YOUR LICENSE DISCIPLINARY ACTION.

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.

Pennsylvania Criminal Expungement and the Pennsylvania Licensee

Expungements are major issue with every professional licensee.  Many licensees are involved in some type of criminal conduct that result in enrollment into Pennsylvania’s pretrial probation – Accelerated Rehabilitative Disposition –  program (ARD).  Some cases also involve Drug Court or Section 17 dismissals under Pennsylvania’s Drug Act. I field many telephone and Internet inquiries regarding criminal convictions and ARD results that require reporting to Pennsylvania licensing boards.  Reporting is either within 30 days of arrest (Nursing Board), 30 days of conviction, or enrollment in the ARD or Drug Court programs.

An issue has arisen regarding expunging dismissed criminal records from one’s Pennsylvania administrative licensing board record.  Typically, licensees who win their criminal cases seek to have those criminal records expunged at the earliest possible date. The expungement process is found under 18 Pa. C.S. § 9122. This Chapter is known as the Criminal History Record Information Act (“CHIRA”). This provision is part of the same statutory chapter, 18 Pa. C.S. § 9161(3), that renders admissible criminal convictions in administrative licensing proceedings. As such, the necessity of expunging criminal arrests that result in not guilty, dismissals or ARD is of key value to every Pennsylvania licensee. But for the criminal charges, there is no administrative disciplinary basis under CHIRA to commence a disciplinary process.
The problem, however, unlike other states, for example Ohio, is that Pennsylvania expungement rules do not specifically provide for an expungement of a criminal arrest record subsequently dismissed that became the basis for an administrative licensing disciplinary proceeding. Pennsylvania’s expungement process allows only for specific administrative licensing expungements in drivers license matters. This is in contrast to Ohio law at section Ohio revised code 2953. 32 and 2953. 52.  This conclusion is drawn because one provision of Pennsylvania’s expungement law, § 9122(a)(3), specifically states “the court shall order the expungement of all criminal history record information and all administrative records of the Department of Transportation.” Leaving absent all other administrative licensing boards allows these Boards to not expunge their Board proceedings that rely upon criminal charges that were eventually dismissed or expunged.
This is a complex reporting issue for Pennsylvania’s nurses.  In October 2015 Pennsylvania Nursing Board regulations changed, requiring reporting of criminal arrests within 30 days of the arrest.  Other licensees who receives ARD or other pretrial probationary dismissal of offenses under the Drug Act only have to report upon the conclusion of the offense.   I am now finding that nursing license prosecutions are commencing soon after the initial reporting of the criminal arrest and not upon its conclusion.  This creates important 5th Amendment self-incrimination questions for the licensee trying to maintain their profession and their license in the midst of a criminal case.

Other cases affected by this expungement rule include enrollees of Pennsylvania Drug Act, Section 17 drug use dismissal cases, and county Drug Court programs for felony drug sale or possessory offenses. Typically, satisfactorily completing these county-based criminal court diversion programs result in dismissal of criminal charges. Thereafter, the licensee is eligible for the expungement in criminal court of those dismissed criminal allegations. Nonetheless, the licensee will have already reported on their annual renewal or initial licensure application their involvement in these criminal cases. Reporting of Drug Act or pretrial ARD or Drug Court involvement automatically results in licensure disciplinary action even though the charges are eventually dismissed and expunged.

Pennsylvania’s expungement rules do not waiver on this issue.  As well, CHIRA and the Drug Act specifically provides for automatic Licensing Board disciplinary action of any licensee enrollment in any Drug Act pre-trial probation program that eventually results in dismissal and expungement eligibility.  It is the old fashion Blue Law, religious based abstinence theory of the Pennsylvania laws that have not progressed with the rest of the country.  Kicking people out of their jobs and taking their licenses, rather than treatment and keeping them productive members of society, like in OHIO, is how Pennsylvania currently functions.

The VRP and the “Letter of Concern” — They Are Not Concerned!

I have written about this issue many times.  I, though, continue my one attorney crusade against the PHMP improperly offering a drug and alcohol treatment-abstinence program to vulnerable licensees who neither suffer from drug or alcohol addiction nor are incapable of safely practicing their profession.  By this I mean offering any professional enrollment in the Voluntary Recovery Program “VRP” whether or not they suffer from an addiction or impairment.

The VRP does this by targeting professionals charged for the first time with a DUI or other minor alcohol or drug related summary offenses.  These professionals received the VRP “letter of concern” at a very vulnerable time.  Especially nurses who must report criminal charges with in thirty (30) days of arrest, not conviction. However, first time DUI offenders are typically eligible for Pennsylvania’s ARD pre-trial diversion program.   As such, there will be no conviction.  Professionals receiving the “letter of concern” while the DUI prosecution is just starting are terrified of losing their license. Many unilaterally, without consultation of licensing counsel like me, go to the VRP assessment and then sign a PHMP consent agreement thinking it saves their license while the prosecution is pending. It only makes the problems worse.
The 2006 case Wittorf v. State Board of Nursing, 913 A.2d 956 (Pa. Cmwlth. 2006) is on point. Wittorf voluntarily entered the VRP to save his license after a first time DUI offense.  (If he had competent counsel he would not have entered the VRP to start and his license would never have been affected.) Soon after, however, the rigors of the abstinence-based PNAP administered PHMP became clear.  Work and life affected Wittorf’s ability to comply with every condition of the program.  He sought to exit the program.  Wittorf claimed he did not suffer from a drug or alcohol addiction that rendered him an impaired nurse. Wittorf presented numerous witnesses at the hearing supporting his lack of addiction and any professional impairment. Wittorf lost his petition to exit the VRP and have his license returned to non-probationary status.
Wittorf forgot he signed the standard PHMP agreement/contract and Board Consent Agreement.  Each document contains admissions that the signatory is an alcoholic (or drug addict) and such impairs their ability to practice their professional safely. This is the only legal fact upon which the Court needed to rely in denying Wittorf’s motion.  By signing the agreements Wittorf (and every other licensee in the same position) stipulates to both their addiction and impairment when asking to voluntarily enter the VRP.  One must do so to be eligible for the VRP.  Its the worst thing to do.
Every VRP “letter of concern” includes the personal data information sheet and medical authorization releases. Do not sign any of these documents if you wish to retain your medical, nursing for other professional  license.  Do not go to the requested assessment as one is not legally required. If you are reading this blog or column, you should call me immediately.
If you are reading this blog after being charged with a DUI and compelled to go to a COAD (Council on Addictive Diseases) assessment, hire competent counsel to handle your licensing issue along with the DUI. This is because typically the mandatory ARD DUI COAD assessors are the local PHMP referred VRP assessors. Once that assessor learns that DUI ARD applicant sitting in front of them is also a professional licensee – especially nurses and doctors – the assessment turns into a VRP assessment that I advise my clients to avoid.  Being prepared for this assessment, similar to be prepared for the Mental and Physical Evaluations (see my other blogs int he archives), is just as important.
The only way I can fight against the unfair tactics of the VRP is by representing as many professionals as I can.  These are trained but incompetent unlicensed case workers implements are highly structured regulatory process.  They have no authority to deviate from any condition of the program.
The PHMP, PMP, VRP, PNAP case workers deal with these issues every day and have honed their trapping skills over the years.  I read the same case workers names on every VRP and PHMP “letters of concern”.  This is the first time you have read this letter.  You need experienced counsel who has honed his skills to battle these experienced case workers.  Call me.
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