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!

Road Riding in the Counties

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

Pennsylvania’s New DUI Case Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Call me to discuss you DUI and blood draw evidence.

Another Really Nice Client Review with my Response

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

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

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

Professional Licensing Board’s Discretion and Appellate Case Review

The discretionary decision making process of Pennsylvania’s twenty six professional boards is a huge appellate issue many cases confront.  In a recent case, board discretion is discussed in the context of non-criminal conduct and the Medical Board’s authority to police its own licensees.  The case is Mosuro v. Bureau of Prof’l & Occupational Affairs, 2016 Pa. Commw. Unpub. LEXIS 717 (Commw. Ct. Oct. 13, 2016).

Dr. Mosuro was disciplined in the state of Texas as a result of a medical relationship with a pain management clinic.  Dr. Mosuro was compensated by the owner of the clinic, an Advanced Practical Nurse (“APN”) licensed under Texas law, with a flat fee for each prescription he wrote for a clinic patient. In turn, the APN referred patients to Dr. Mosuro for other treatment.  Upon being investigated by the Texas Medical Board, but with no criminal charges being filed, the doctor enter into a consent agreement acknowledging violations State of Texas  Medical Board laws, rules, codes, and regulations due to his failure to supervise the APN and allowed her to prescribe medications that were non-therapeutic while acting under his prescriptive delegation. Charts were also not adequately documented and prescriptions were not supported by objective medical findings and data.  In sum, he allow his prescriptions to be used in a pill mill.

The Texas Board of Medicine issue the public reprimand and a $10,000 fine. He was also given a prescription prohibition on ordering, prescribing, or dispensing scheduled medication services.  The licensing authorities of Maryland, Tennessee, Alabama, and Virginia imposed similar discipline on Dr. Mosuro ‘s license.

The Commonwealth of Pennsylvania commenced disciplinary proceedings based upon Texas’ disciplinary action, accusing the doctor under 63 P. S. § 422.41 of improper prescribing of controlled substance through his involvement with the pill mill and his failure to properly supervise a nurse practitioner as required under Texas law. Standard of care violations, documentation of medical record violations, and unprofessional conduct were perceived by the Pennsylvania Medical Board as very serious.

After hearing in Pennsylvania, the hearing examiner proposed an Order and Adjudication of a $500 civil penalty and indefinitely suspended Doctor Mosuro license to practice medicine in the Commonwealth of Pennsylvania. Upon review, the Pennsylvania Medical Board excepted the hearing examiner’s Findings of Fact and Conclusions of Law but rejected the recommended order. Rather, the Medical Board ordered a public reprimand on Dr. Mosuro ‘s permanent licensing record, a $5000 civil penalty, and an indefinite suspension of his license to practice medicine and surgery in the Commonwealth of Pennsylvania. Reinstatement may be sought upon compliance with the Texas Board order and his Texas medical license being reinstated to unrestricted status.  This totaled over $15,000 in fine for a doctor unable to practice medicine.  This Board issued this order even though Dr. Mosuro did not have an active Pennsylvania medical license, was not practicing in the Commonwealth of Pennsylvania, and was disciplined by many other jurisdictions as a result of the same conduct.  PENNSYLVANIA’S DISCIPLINE WAS THE HARSHEST OF ALL JURISDICTIONS.
Dr. Mosuro appealed to the Commonwealth Court.  The scope of the Commonwealth Court appeal is limited to determining whether the findings of fact are supported by substantial evidence and whether the board committed errors of law or constitutional violations.” Blair v. Bureau of Prof’l & Occupational Affairs, State Bd. of Nursing, 72 A.3d 742, 750 (Pa. Cmwlth. 2013).  In review of the record, the appellate court concludes  the Medical Board’s extensive discipline based solely upon the opioid prescription drug abuse crisis is proper. The Board restates with approval the Pennsylvania Medical Board citation to recent Pennsylvania legislative findings regarding human suffering associated with addiction and how its epidemic has reached families throughout the Commonwealth.
The Medical Board and the Commonwealth Court use this case as a example of how to ensure public safety from medical practitioners who use their medical licenses to create “rogue pain management clinics” in Pennsylvania. Citing statistics that Pennsylvania ranks seventh in the nation for drug overdoses from prescription pain killers and the role of pill mills in the overdose epidemic, the Court approves the Medical Board utilizing these facts to “engage in its purpose under the medical practices act of safe guarding the public health and welfare”.

The Court did not address the Board’s role of insuring individual penalties to individual licensees be based upon their case facts. The Court affirms Board citation to broad policy language that the prescription overdose epidemic cannot be ignored. The Commonwealth Court concludes that when as now there is a “current threat to public health and welfare when assessing whether a Board carries out its statutory mandate in a purely arbitrary and capricious manner”, the Medical Board is properly carrying out its broader policy mandate of stopping pill mills during this great opioid epidemic.  Such is sufficient factual and legal reasoning to discipline even an in-active medical licensee.

 The Commonwealth Court limited its inquiry into the “wisdom of the board,” not reviewing the administrative decision of the Medical Board with an eye towards substituting it’s judgment of what is reasonable for that of the agency whose decision is being reviewed. The court let stand the Pennsylvania Medical Board’s perceptions of the seriousness of the doctor’s Texas discipline, how such is also a violation of Pennsylvania’s medical licensing scheme, and the Board’s broad policy reasons for its discipline.
In sum, Commonwealth Court concludes that “the board did not abuse its discretion by taking strong action to protect the safety and welfare of citizens by suspending Dr. Mosuro’s license instead of imposing conditions on his license similar to those of the Texas Board.” Dr. Mosuro’s violation is very serious. In determining that the Board did not abuse its discretion, the Court states “even if we disagreed with the severity of the sanction and thought the Texas Board’s decision was more appropriate, the sanction must be upheld because proper review is not whether it’s order is reasonable, but whether it was made in accordance with law.”  Facilitating and conspiring to engage in operation of a “pill mill”, the Court and the Medical Board conclude, is not in accordance with law and, therefore, the suspension of the medical license is within the confines of the Board’s regulatory authority.

Call me to discuss your out of state disciplinary action and Pennsylvania’s pending disciplinary action.

IP Addresses and an Expectation of Privacy — NIT and Government Malware

My criminal practice recently focused on a significant case involving IP addresses and privacy rights. The case involves government use of online surreptitious surveillance methods, an NIT, in a criminal investigation to determine a potential defendant’s Internet Protocol (“IP”) address, and thus home address, to subsequently serve criminal subpoenas and search warrants on that home address. The government maintains in these types of investigations potential criminal defendants have no expectation of privacy in their IP address. However, various criminal statutes, regulatory provisions, and sentencing guidelines reflect Congress’ intent to provide a national reasonable expectation of privacy rights in “IP” addresses and thus location data. This blog shall identify several federal statutes that establish Congressional privacy rights in IP or location address data.

In one criminal statute, Congress makes it illegal under 18 U.S.C. § 1030(5) to “knowingly cause[s] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer.” Subsection 1030(f) “does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States.” Congress’ requirement of a warrant in subsection (f), “prior authorization” through a judicially approved legal procedure and probable cause, indicates the privacy and constitutional rights that are applicable to these searches, when the take place in searching a defendant’s home pre-arrest.

In these cases, the Government maintains defendants do not have a reasonable expectation of privacy in their IP location data. They are wrong. The government thinks it is OK to hack private individual’s computers through a code or command sent to that computer. Courts have held these types of investigations are searches, requiring an authorized warrant, and thus judicial oversight. Required judicial oversight is Congressional recognition of privacy rights in location data.

This position is supported by a recent national criminal case. In 2013 various Chinese state co-conspirators were indicted for violating 18 U.S.C. §§ 1028 and 1030, et seq. At paragraphs 15, 18, and 43 of the indictment, the Government alleges these officials engaged in acts constituting violations of 18 U.S.C. § 1028(a)(1), 18 U.S.C. §§ 1028A(b), 1028A(c)(4), and 2. The blatant and outrageous criminal conduct at paragraphs 52-53 includes illegally taking personal identification information of another, without authorization. The Government equates stealing personal IP address and location data with violations of the United States Code.

The United States Sentencing Guidelines include a specific guideline provision devoted to theft of personal privacy data. For sentencing purposes, confidential information under 18 U.S.C. § 1039(h)(1)(A) includes personal location data. U.S.S.G. §2H3.1 addresses the manner in which federal courts are to assess offense levels and sentencing enhancements for violations of 18 U.S.C. § 1039.

In the context of active location data provided through cellular telephone surveillance capabilities, there has been extensive litigation over the definition of Other Information that is generated when utilizing a cellular telephone. Congress defines Other Information as historical and real time “cell site location information” (“CSLI”), which discloses location data of persons utilizing cellular telephones. In In re Application, 620 F.3d 304 (3d Cir. 2010), the Third Circuit addresses probable cause requirements in warrants seeking this information based upon the privacy issues attached thereto. See (http://www.phila-criminal-lawyer.com/Publications/005061214-Hark.pdf).

In 1997 Congress passed amendments to the Communications Act of 1934. Congress, and the FCC, through enabling regulations, passed numerous rules identifying and then delineating the exact nature of customers’ privacy rights to their personal information and telecommunication companies’ duty of protecting such from commercial exploitation. 47 U.S.C. § 222 was added to the Communications Act by the Telecommunications Act of 1996. Section 222 of the Act establishes a duty of every telecommunications carrier to protect the confidentiality of customer proprietary network information (” CPNI”). CPNI is “information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship.” 47 U.S.C. § 501 makes it a crime to knowingly and intentionally violate (disclose this information) the Act.

The Privacy Act of 1974 addresses privacy of federal employees’ personal information. “No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains [subject to 12 exceptions].” 5 U.S.C. § 552 a(b). 32 CFR 505.7 – relating to Freedom of Information Act disclosures of Federal Employees personal information states at subsection (e) (1) states “The release of home addresses and home telephone numbers normally is prohibited.”

Release of personal location information is normally considered a clearly “unwarranted invasion” of personal privacy and is exempt from mandatory release under the FOIA. 32 CFR § 505.7(d)(1)(vi) identifies home addresses as personal information not to be release without prior consent of the individual. There is an entire Department of Justice Overview of this Act on its website. The DOJ has its own Chief Privacy and Civil Liberties Officer enforcing provisions of the Privacy Act on Federal employees and agencies. https://www.justice.gov/opcl/overview-privacy-act-1974-2015-edition.

Congress has established privacy obligations on the private sector through legislation affecting the financial services, health care, government, and Internet sectors. Federal regulations issued to carry out federal privacy laws impose obligations on covered entities to implement information security programs to protect unauthorized dissemination of private individual’s personal information. Protected personal information (“PPI”) in each service field typically includes name, address (location) date of birth, and social security numbers of the persons affected. A short list of CFR sections addressing PPI includes 32 CFR 701.115, 32 CFR 505.7, and 36 CFR 902.56.

In light of numerous federal statutes criminalizing any disclosure of personal privacy information (address location data) of both private and government employees, every defendant or target has a reasonable expectation of privacy in their location data, to which a legal and proper warrant is required for the Government to discover such information.

Please call me to discuss your case.

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.

Drug Act Convictions and Automatic Suspensions

Pennsylvania’s licensing boards have become very proactive in learning of professional’s criminal convictions for violating Pennsylvania Drug and Cosmetic Act – 35 P.S. § 780–113 (a). Once learned, licensing board prosecutors aggressively file petitions for automatic suspensions of professionals’ licenses. At issue is whether the Boards impose, per Drug Act offense, the one year maximum suspension or a suspension for a lesser amount of time and concurrent versus consecutive for each violation.

If the proper attorney handles both the criminal case involving Drug Act allegations and the consequential administrative licensing disciplinary action, the probability of a better total result is clear. In September 2015 I wrote a blog on this exact legal issue. September 2015 Blog

In that blog, I set forth that the Drug Act, § 113(a) lists thirty six illegal actions involving drugs, prescriptions, record keeping, and other pharmaceutical issues. Section 780- 113(b) identifies which of those thirty six offenses are either felonies or misdemeanors and their respective jail penalties. Drug Act sections 780-123(b)&(c) identify a separate penalty solely targeting the licensed practitioner who is convicted of, or pleads guilty to, either a misdemeanor or felony offense set forth in 35 P.S. § 780-113(a).

When representing the licensed practitioner, 35 P.S. § 780-123(b) & (c) dictates the priority of negotiating a guilty plea to a non-Drug Act offense. An initial goal is to avoid any Drug Act criminal charge and/or conviction. A secondary goal on cases involving drugs is to secure misdemeanor graded Drug Act violations over felonies.

How these cases are defended criminally – with an eye towards the license context — is hugely important. Non-drug use or contraband related Drug Act violations need to be clearly discussed in any guilty plea. The guilty plea hearing should include a recitation of facts explicitly eliminating any question that the plea is for personal consumption conduct. The guilty plea colloquy must clearly spell out the absence of evidence regarding drug diversion, positive drug tests, or inferences of personal consumption.

In many Drug Act cases, specious criminal charges are filed for tenuous record keeping violations, charting errors, or untimely prescription dispensing errors. In these cases, the guilty plea must identify the charting errors, dispensing mistakes, or the nature and manner of typical prescription dispensing negligence that forms the foundation of the criminal charges. Emphasizing the non-diversion facts here is important as the Board will consider such when the professional suspension is decided.

Once convicted, how and what is included in the professional’s mandatory notification to the professional board is important. Attach the guilty plea transcript that sets forth the non-diversion factual predicate of the plea. The professional, through counsel, should request the Board to exercise its discretion in not instituting the automatic one year suspension, but some lesser amount. If necessary, file an application to stay the automatic suspension and an answer to the prosecutor’s motion, contesting the Board’s discretionary implementation of a one year suspension.

The perception that automatic one year suspensions are mandatory rather than discretionary stops many licensees from contesting these petitions. Applications for a stay of any license suspension in conjunction with an application answering the petition for an automatic suspension should be filed. Appropriate legal averments and complex legal strategy is necessary to stop any automatic license suspension from going into effect.

A case I recently handled, for which the proposed adjudication has yet to be handled down, is on point. It is an abuse of discretion to impose a one-year suspension of a professional’s license for old convictions that are not related to the use or diversion of any narcotics. Please call me to discuss these issues to properly insure either your license is not suspended for the one year maximum for each Drug Act conviction.

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.

Why Legalization of Pot Will Not and Should Not Work

Trending successes in the quest for the legalization of medical marijuana screeched to a halt today, stopped by our nation’s citizens’ right to be safe in hospitals, highways, and other professional endeavors. The Colorado Supreme Court, in Coats v. Dish Network, affirmed an employment related firing of a Dish Network employee who tested positive for marijuana, in violation of the company’s zero tolerance drug free work place rules.

Mr. Coats a quadriplegic,  wheelchair bound his teen years. Current medical conditions cause continued suffering, warranting in home legal medical marijuana use consistent with his lawfully secured pot license and Colorado State law. Coats, however, secured a job as a telephone customer service representative (not even a driver servicing homes), who tested positive for THC in a random Dish Network employment related drug test.  He was summarily fired.

Coats filed suit, claiming his registration as a medical marijuana patient excused his legal, private, medical-based drug use under Colorado State law. He claimed Colorado’s employment related statute protected his “at least lawful” medical marijuana use. The Colorado Supreme Court rejected this claim.

Dish network, similar to many other employers across the country, has a zero tolerance drug testing policy. The language of the policy states that any drug use must be “lawful activity”. This means you must have a prescription for a legal medication identified as such under federal DEA regulations. Pot is not one of them. The Colorado Supreme Court determined that because medical marijuana is a state right and not a federal “lawful” activity, Dish Network properly terminated Coats for violating its legal work place rule.

A random employment relate drug test in many companies around the country – in pot legal states or not – will, typically, reveal personal, medicinal or not, marijuana use. Employment termination for violating companies’ drug policy happens every day.  The issue here was Coats’ allegations of wrongful termination stemmed from his state based lawful activities off the premises. The Colorado Supreme Court rightly rejected this argument.

The court reviewed the basic premise that under federal law marijuana use and possession is still not lawful. The court contrasted this premise with Colorado’s medical marijuana laws that recognize medical marijuana use as lawful. The court concluded, however, that the supremacy of federal law still makes any medical marijuana use not “lawful”.

Colorado’s employment related termination statute had not been amended since its legislature created the medical marijuana laws. Consequently, the employment related statute does not identify lawful activity to be that under state or federal law. This is a huge issue.

Coats had to acknowledge the federal Controlled Substance Act prohibits medical marijuana use, (identifying it as a Schedule I narcotic having no medical excepted use, a high risk of abuse, and a lack of excepted safety). The court referenced federal allowance of pot use in research projects, but no exceptions for medicinal or personal use. Clinging to the Supremacy Clause, the Colorado Supreme Court concluded the because of the federal proscription of medical marijuana, Coats’ medical marijuana use was unlawful under federal law, and, therefore unlawful under Colorado’s employment related termination statutes. Unless state law is explicitly altered to preclude termination based upon state law and not general “lawful activity”, Federal law controls in this area of employment related litigation.

This is a clear public policy statement. Coats is the perfect plaintiff. His medical condition is clear and his does not work in public safety position. Nonetheless, the court’s rejection of the state based legal pot defense, enforcing a very vanilla drug free work rule utilized by a national company against a quadriplegic, is a clear message — companies that want a drug free work place can have one and our nation’s citizens can fee safe utilizing those companies.

The policy decision and practical implications of this case nationwide and in Pennsylvania are enormous. This interpretation of an employment related statute is congruent with Pennsylvania’s 26 licensing schemes addressing illegal conduct. Currently, any unlawful conduct (testing positive for marijuana use) is already a basis for disciplinary action under various boards’ licensing scheme.

The legalization of marijuana in Pennsylvania would necessarily require a public policy decision to alter each of these licensing schemes and their enforcement mechanisms. It is doubtful such would occur because the Pennsylvania’s professional boards want Pennsylvania’s citizens to know the professionals they rely upon in every day life are drug-free and not impaired by the use of an illegal Schedule I controlled substance.

Said another way, Pennsylvania’s licensing boards want competent, unimpaired professionals in hospitals, nursing homes, medical offices, hospices, builders, architects, accountants, and the like helping and professionally serving Pennsylvania’s residents. Allowing the medical use of marijuana for medical registered non-professionals may proceed. But this will be in conflict with many other citizens rights to receive unimpaired professional services. Employers’ and drug-free citizens’ rights will trump the minority who wish to get high on pot.

Conservative state legislatures will continue to enforce employers’ right to have a drug-free workplace. This will allow employers to utilize the federal policy on pot to insure a safe workplace staffed by unimpaired, drug-free workers. Whether it be on our nation’s highways, union workers building bridges, buildings, or professionals caring for our nation’s sick, states will continue to demand lawful, unimpaired workers staffing these jobs. Employers will choose unimpaired, drug-free workers who choose professions over drug use.

The legalization of pot should not and will not change this broader policy consideration. The wants of the few will not out-weigh the needs of the many when balanced against public safety.

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