Miscalculated Blood Tests and DUIs in Somerset County – What Went Wrong?

Recently, a District Attorney in Somerset County, PA discovered that a hospital in charge of testing blood collected in possible DUI cases had been inaccurately reporting the results. The hospital had been testing serum to come up with a Blood Alcohol Content, or BAC, but was reporting the number as if the test had been performed on whole blood. As a result, people may have been wrongly convicted of DUI.

As I’ve explained before, serum blood tests and whole blood tests are very different. When the lab tests whole blood, they merely put the blood in the machine and report the number without any further calculation.

When the lab tests serum, the lab only tests a portion of the whole blood. The volume of serum is lower than whole blood, therefore the BAC will be higher. The law is only concerned with whole blood BAC, so a “conversion factor” is used to convert the serum BAC to whole blood BAC.

In Somerset County, neither the hospital lab nor the DA applied the conversion factor. So, those people’s BAC was reported as higher than it actually was, resulting in possible charges where the person was legally sober or more serious penalties because of the higher BAC. The question I have is, how did no one notice this sooner?

Whenever somebody is charged with DUI, the lab must provide a lab report which shows the BAC result. Every lab sheet I’ve seen says whether the test was performed on whole blood or serum. It also says what conversion factor was used. It’s right there in the evidence, so I have trouble understanding how no one picked up on this. There are only two ways I can see that nobody noticed the lack of conversion factor.

First, the hospital or the DA withheld the fact that the hospital was testing on serum and not whole blood. It appears as if the DA knew the hospital was testing on serum. The hospital should have put the serum test and conversion factor on the lab report sheet, but even if they didn’t, the DA had a responsibility to notify the defense that the blood was tested on serum.

The DA also should have refused to pursue any charges where the conversion factor wasn’t used. If the hospital and/or the DA didn’t bother to disclose what was being tested, or the DA continued to prosecute cases where the BAC was inaccurate knowing about the inaccuracy, there’s a bigger issue that needs to be dealt with here, including possible sanctions.

Second, if the hospital did report on the lab sheet that serum was tested and no conversion factor was used, the defense attorneys should be on the hook for failing to challenge the case. Whenever I look at a DUI case, I ALWAYS check the lab sheet. If the information was reported on it, and defense counsel actually looked at that vital piece of evidence, counsel should have immediately seen that there was a problem and attacked the BAC results.

Even if it wasn’t reported on the lab sheet, over the course of the several hundred cases involved, didn’t anybody subpoena the underlying data? I know when I have a DUI case, I always request the policies and procedures of the lab as part of my review of the accuracy of the BAC. I’d expect that the policy of testing on serum and the conversion factor used (or lack thereof) would be in that information.

I just don’t understand how nobody challenged this sooner. It’s disappointing as a DUI attorney that no defense attorney ever picked up on it and challenged cases. This has the potential to affect over 750 DUI cases. In all that time, SOMEONE should have noticed.

This just goes to show why DUIs shouldn’t be open and shut cases. It also shows why you need an experienced and knowledgeable DUI attorney representing you. If you’re charged with DUI, protect yourself. Contact The Fliszar Firm for a free consultation.

The Struggle with Mental Illness

The struggles of people who suffer from any mental illness are all too often hidden or ignored. No matter how progressive we like to think we are, there’s still a stigma attached to mental illness. People who have conditions ranging from depression to schizophrenia to personality disorders are often forced to suffer in silence, fearing judgment from others for something they can’t control.

I’ve probably represented well over 100 people who have mental illness in a variety of hearings. I’ve done mental health commitments, where the client’s condition was so severe they’d become a danger to themselves or others. I’ve advocated for clients trying to get Social Security Disability benefits after their symptoms became so debilitating it prevented them from working. I’ve handled numerous criminal cases where mental illness played a large role in the commission of the crime.

Not only do I have a lot of experience with mental illness in my professional life, but I have plenty of experience in my personal life, as well.

What all this experience has taught me is that, for whatever reason, the mental health population is still a forgotten one. Although a recent study showed that 1 in 5 Americans suffers from some form of mental illness, those that do are regularly treated differently than people who have a physical condition.

I regularly hear from clients that they don’t want their mental illness discussed in court or used as part of a defense because they’re too embarrassed. The mental health treatment provided in prisons is poor. Health insurance companies put a cap on how many times you can visit your therapist in a year. I’ve had Administrative Law Judges tell me they would not grant disability benefits for somebody because the claimant “only” had mental health issues, no physical, and mental health is not disabling. Judges and juries often ignore any mental health component of a case.

There’s no shaming of people who have physical disabilities; why do we shame or ignore people with mental disabilities? There’s a great internet meme that accurately illustrates the difference between how we treat people with mental illness versus those with physical illnesses.

Robin Williams’ recent suicide has shined a light on a previously taboo topic. Depression is real. Mental illness is real. It’s not something to be embarrassed about, and it’s certainly not something that should have a stigma attached.

Many people are now coming out and sharing their stories of how they’ve silently struggled with mental illness. My friend, Nick Falsone, a blogger and editor at my local newspaper, shared his story on the front page of Sunday’s paper. His bravery, and the bravery of everybody else speaking out, is admirable and an inspiration.

My hope is that, moving forward, more people will recognize that mental illness is a real thing. It’s not something a person can just snap out of. It has an effect on almost every aspect of their life. As a lawyer, I see just how many areas of a person’s life it can affect. The legal system needs to recognize it; society needs to recognize it. And then we can move from an attitude of judgment and embarrassment to one of acceptance.

Will My Lawyer Fight My Case?

As you know, I recently moved back to the Lehigh Valley to open my own law practice. When I was putting together a business plan, I looked at statistics on types of cases being handled in the area. I looked at Lehigh County’s stats, since I’m practicing here and it’s the third-largest county in the state. I was fascinated by what I found.

It seems that very few cases go to trial. Consider this: In 2012, there were 5,132 cases disposed in Lehigh County. Of that, 32.6% went through ARD (essentially a pre-trial diversionary program). A staggering 58.8% were disposed through guilty pleas. How many actually went to trial? 53. Out of 5,132 cases, only 53 actually saw trial; that’s 1.1%. If I look at just my caseload over the last two years, I’ve taken far more than 1.1% of my cases to trial…and I’m just one person. So, it would seem the majority of attorneys in the area don’t see even one trial per year.

The civil side isn’t much better, though civil law has somewhat of a reputation for settling and not making it to trial. Of 8,565 civil cases available for processing, 1,060 reached settlements. There are a variety of other ways to dispose of cases in the civil arena, but in the end only 62 total cases went to trial. 62! It’s hard for me to wrap my head around these numbers.

I’ve practiced in many counties throughout Pennsylvania and have now spoken to numerous attorneys in the Lehigh Valley. I can tell you from experience that there are only a handful of attorneys that I’ve interacted with that actually enjoy litigating cases. Far too many are eager to churn and burn, especially DUI cases. To these attorneys, criminal cases, and particularly DUIs, are open and shut cases; not only are they not worth fighting, but some attorneys don’t know enough to attempt it. I even came in contact with several judges who actually got annoyed because I took cases to trial where there was a valid defense. But why?

I don’t know if it’s an age thing, a training thing, a money thing, or just pure laziness. But I’ve proven you can be successful in fighting criminal cases, including DUIs. In fact, I’ve been successful in more than one DUI trial. Then again, I also have advanced training in DUI defense, cross-examination, and other areas of litigation that help me be a more effective lawyer.

The stats support what I’ve experienced; in most counties, the majority of ARD cases are DUIs, and DUIs are far and away the most common type of crime charged in Lehigh County. Yet, as you can see from the stats, very few are litigated.

I like to think that attorneys, both criminal and civil, are doing everything in their power to effectively fight for and protect their clients. But statistics don’t lie; 1.1% is almost nothing. 62 out of 8,565 is almost nothing.

It’s not something I understand or for which I have an explanation. I’m a litigator. I went into the areas of law I did because I like the courtroom. I like trial; it’s where I’m at my best and most confident. But I know people who have gotten into criminal defense and civil litigation who hate trying cases. In fact, I knew a lawyer who focused his practice on DUI defense and who, for whatever reason, was one of the go-to lawyers for people charged with a DUI. He hadn’t conducted a trial in 20 years.

What does this mean for you? It means if you want someone who is going to fight your case, you need to be very selective when choosing an attorney. It means you’ll need to find someone who isn’t afraid to litigate – someone like The Fliszar Firm.

Why do you think cases aren’t making it to trial? Keep the conversation going in the comments.

How Does Working Affect Social Security Benefits?

As I discussed in a prior post, the Social Security Disability (SSD) system has its fair share of issues. One of those issues is how confusing the laws are as they relate to a person being able to work while at the same time receive disability payments.

People who receive disability payments often realize fairly quickly that the benefits they receive are significantly less than their salary when they worked. In fact, the amount is so low that many recipients are unable to support their family on the amount they receive. Because of this, I’ve gotten the same question fairly regularly – can I work at all if I’m receiving disability benefits?

The answer to that isn’t a straight yes or no. It’s important to first point out the standard for granting of disability benefits. The standard is this – if you are determined to have a severe disability that prevents you from doing your current job for at least one year, and you’re given reasonable accommodations by the employer, are there any jobs that exist in sufficient numbers that you’d be able to perform on a 40-hour-a-week basis?

Notice that the standard is for full-time work. This means that you can work part-time and still get benefits, right? Yes, but with certain caveats.

The Social Security Administration (SSA) allows you to work while receiving benefits, but puts a cap on the amount of work you can do. They call the threshold for allowed work Substantial Gainful Activity, or SGA. If you’re receiving SSDI, the SSA has defined “substantial” as earning over $1,070/month for 2014 (this amount changes every year). So, if you work and earn less than that, you are not at SGA levels and can still receive benefits.

There’s also something called a Trial Work Period (TWP). At any point during your disability, you can attempt to return to work without immediately giving up your benefits. This attempt can last up to 9 months. In 2014, a trial-work month means any month where your earnings are above $770. The 9 months worked do not need to be consecutive; it is considered a TWP if you work 9 months within a 60 month period. You can still receive benefits for a certain period after the TWP ends.

Keep in mind, though, that if you are working you must report it to the SSA. Yes, they allow you to work. However, they can then use the fact that you work, even part-time, as evidence that you are no longer disabled and in need of benefits.

The Social Security Disability system is extremely complicated. Rather than try to navigate it alone, speak to a lawyer. If you are in need of disability benefits, or you already receive benefits and need guidance on where to go from here, contact The Fliszar Firm in Bethlehem, PA today.

When Should I Hire An Attorney?

I get this question a lot – do I really need an attorney? And if I do, how quickly do I need to hire one? The answer is fairly simple. If you’re involved in the legal system, or there’s even a possibility you may be, you should have an attorney. If you need one, you should hire one immediately.

I practice in a few different areas of law, but it’s same across the board – most, if not all, legal situations require an attorney. Why? Take Criminal Defense, for example. From the moment you come in contact with the police, they are looking for ways to convict you. You have certain rights available to you, and those rights need to be protected.

I wouldn’t even go in front of a judge for a traffic ticket without an attorney. Sometimes, it’s not as simple as whether you did it or not. With all crimes, there are certain things that must be proven, and an attorney will know how to adequately fight the case. Also, there are certain defenses that may be available for any number of charges, and the attorney is in the best position to understand when these defenses apply and how to successfully present them. Even the most clear-cut case may be winnable with the help of a good attorney.

In Personal Injury cases, you need to start preserving evidence immediately after the incident. You also want to have somebody for any insurance adjusters, witnesses, and possible plaintiffs to communicate with so you don’t say or do anything that could harm your case. Again, an attorney should be hired immediately.

I have a family member who was in a car accident a few years ago. She sustained injuries, and at the time didn’t know how lingering the effects may be or how they would affect her life. Back then, I was working at another firm that didn’t handle Personal Injury cases and I had signed a no moonlighting agreement, so I couldn’t help her. I suggested to her that she hire a Personal Injury attorney right away, which she did, and I’m glad she followed that advice. There were a lot of unexpected issues that came up, both with the other driver’s insurance carrier and her medical treatment, and she would have been lost if she didn’t have that attorney to guide her through the process and advocate on her behalf.

The same is true for the other areas of law that I practice – Workers Compensation, Social Security Disability, and Animal Law. Even if you don’t know that you’ll get criminal charges, or that you’ll be out of work for an extended period of time, or that your injuries will linger, you should have someone on your side, ensuring that your rights are protected and that you’re giving yourself the best chance at a positive outcome in your case.

If you’ve found yourself involved in the legal system in any way, you need a qualified attorney. Contact The Fliszar Firm today to schedule a free consultation and make sure your rights are protected.

How to Get a DUI at Home

I’ve been talking to a lot of people recently about the DUI law in Pennsylvania, and there’s one thing I’ve learned: it’s highly misunderstood. But what could someone possibly misunderstand? It’s pretty cut and dry, right?

Well, the most misunderstood part of DUI that I’ve seen is that DUI in PA is a time-of-driving offense. What do I mean by this? Most people have told me they think DUI means your Blood Alcohol Content is above a .08 while you’re driving. This is only partially true.

Yes, the state has to prove that you had alcohol in your system at a certain level, depending on what subsection you’re charged under. Obviously, the blood is drawn after you drive. Therefore, we only know what your BAC is at the time the blood is drawn. It used to be that to prove DUI, the state would need to bring in an expert to testify about retrograde extrapolation, or in other words, give scientific evidence as to what your BAC would have been had the blood been drawn at the time of driving. As you can imagine, that can get pricey and somewhat difficult to coordinate for every DUI in the state.

To solve this problem, the legislature rewrote the law to say that your BAC had to be above the legal limit within two hours of driving. This now means that unless your own actions take you outside that two hour window, as long as the blood was drawn within 2 hours of you driving, the prosecution doesn’t have to bring in any witnesses to testify as to what your BAC was when you were actually behind the wheel.

Consider this case: you’re out with your wife. You each have a few glasses of wine, then drive home and get there without a problem. Unfortunately, you get into an argument and for whatever reason, the cops are called to your home about an hour after you arrive. Your wife tells the police you drove, and you admit to driving home. After all, you’re already there, so it’s not like they can arrest you for DUI at this point, right?

Wrong. Even though you made it home, it’s still within 2 hours of driving. The police arrest you, take you in for a blood draw, and it comes back that your BAC is a .11. You can now be charged with DUI.

It doesn’t matter that we don’t know what your BAC was when you were driving. It doesn’t matter that you got home without a problem. It doesn’t matter that your BAC may have even still been rising and could very well have been below the legal limit while you were driving (heads up – you’ll probably need to pay for an expert to try to argue this defense). These are just arguments you can make to create reasonable doubt.

But what about the person who goes home and has a drink or two before the officer arrives? The one thing that person has going for them is that the prosecution has to prove that you didn’t drink between the time of driving and the time you arrived home. However, this is merely a defense. In my experience, the prosecution will still charge you and it’ll be up to you to argue that you were drinking after you drove. This is often an uphill battle.

It’s important to have an experienced attorney who understands your case and can present these defenses. Remember: you aren’t necessarily safe from a DUI just because you get home safely. If you’re in this kind of situation, let The Fliszar Firm tell you how it can help.

Personal Injury Do’s and Don’ts

jfliszar:

When talking about auto accidents in terms of a potential Personal Injury case, it’s important to do everything you can to help your case, and as little as possible to hurt it. This article provides great tips. I couldn’t have said it better myself!

Originally posted on Chapman Law, PLLC:

Image

What would you put in the above caption?  “I’m soooo sorry!  It was all my fault!”  Or perhaps, “What were you thinking!  This is all your fault!”  The steps taken immediately following an accident can have far reaching consequences for an injured party.  The following article is a list of Do’s and Don’ts for anyone involved in an accident.

Please visit our website at http://www.chapmanlawpllc.com.

(The following information is courtesy of the Illinois Bar Association)

If you are injured because of someone else’s negligence or a product malfunction, it’s important to know what to do and what not to do at the time of the injury and beyond. The following Do’s and Don’ts will guide you as you build your case for full financial recovery.

DO:

  • Exchange insurance information with others involved. Also, try to gather names, phone numbers and addresses for all potential witnesses. Give this information to the…

View original 991 more words

You Want to Search My Cell Phone? Get a Warrant!

Big news on the search and seizure front – the United States Supreme Court ruled today that cell phones may not be searched without a warrant.

The Supreme Court held that police generally may not search digital information on a cell phone of a person being arrested, unless they first obtain a search warrant. Here are just a few of my favorite quotes from the opinion:

“These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

“The United States asserts that a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of these sorts of physical items…That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”

In response to the Government’s suggestion that police departments can institute protocols to guard against reading protected information stored on the Cloud but visible on the phone: “Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.”

“We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime…Privacy comes at a cost.”

“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”

The case stems from two trial level cases. In the first, the defendant was pulled over for traffic violations which led to the impounding of his car. An officer looked through a smart phone found during an inventory search of the car and noticed gang lingo. Once at the police station, a forensic expert looked more closely at the phone and found photographs and other damning evidence linking him to a shooting a few weeks earlier. He was charged based on that evidence, convicted, and sentenced to 15 years to life in prison – an enhanced sentence because of his gang relations that were also discovered on the phone.

In the second case, the defendant was arrested after police observed him participating in a suspected drug sale. The police searched his flip phone, traced a number that was repeatedly calling the phone, and got a search warrant to search the house the call was coming from.  There, they found drugs, guns, and cash, and the defendant was charged with drugs and firearms offenses.

Head on over to SCOTUS Blog for a full analysis of the decision and its implications. It’s clear that this decision could create suppression issues for many cases, allowing for dismissal of charges. Officers no longer have free reign to use the “search incident to arrest exception.” With all the private and protected information we keep on our phones, I’m just glad to see the Supreme Court is finally catching up to technology.

Announcing the Opening of The Fliszar Firm

As you may have noticed, I’ve been somewhat MIA lately. That’s because I’ve been working hard on a new project – opening my own law office. And it’s finally happening!

I’m proud to announce the opening of The Fliszar Firm. The website is still under construction, but feel free to check it out. The work my office will do is much like the topics I discuss on this blog, focusing on litigation. The firm is located in Bethlehem, PA and primarily handles cases in Lehigh and Northampton Counties.

The Fliszar Firm offers representation in the areas of Criminal Defense, including traffic violations, DUIs, drug offenses, assault, sexual assault, and homicide; Personal Injury, including child abuse/sexual assault/other victims of crime, slip and falls, nursing home neglect, car and motorcycle accidents, construction accidents, and head, neck, and back injuries; Workers Compensation; Social Security Disability; and Animal Law, such as pet trusts, pet custody, eviction, feral cat colony care, cost of care, dog lemon law, and animal welfare.

Head on over to Facebook and like us, and check us out on Google Plus while you’re at it. Be sure to stay tuned here at Common Law, because I’ll be posting a great story about how I recently got a DUI case dismissed based on a rarely used legal argument.

More Domestic Violence Shelters Allowing Pets

For years, I’ve been trying to educate people on the link between animal abuse and domestic violence. Not only are animal abusers much more likely to be perpetrators of domestic violence, but more and more women are reporting that their abuser has targeted their pets as a way to control and terrorize them. I personally have witnessed this, both in my own personal life and while working in the Domestic Violence Clinic during law school.

Society’s attitude towards pets is changing, and animals are often considered members of the family. Unfortunately, there aren’t a lot of options for women who want to leave an abusive relationship but won’t leave their pets behind. Many domestic violence shelters do not allow animals. Because of the strong bond with their pets and the lack of available housing for the animals at the DV shelter, women tend to stay in abusive relationships rather than make the devastating choice of leaving their pets behind to face an unknown and sometimes deadly fate.

Thankfully, the link between domestic violence and animal abuse is beginning to gain national recognition. Domestic violence shelters are slowly starting to allow pets, giving women the opportunity to leave abusive relationships when they may not have had one before. The AP just published an article on this topic. Click here to check it out. It has some great information on just a few of the much needed shelter programs popping up around the nation.