Attorney Jenna Fliszar Files Lawsuit Against PA State Police, Interviewed on Fox 43 News

Attorney Jenna Fliszar Files Lawsuit Against PA State Police, Interviewed on Fox 43 News
On March 16, 2015, Attorney Jenna Fliszar filed a Complaint in
Federal Court against the State of Pennsylvania, Pennsylvania
State Police, and Troopers Jeremiah Mistik and Shawn Panchik,
claiming the shooting and killing of Bryan and Michele Hartman’s
dog infringed on their Consitutional …
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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.