The 4th of July weekend is upon us! This is a holiday
where people have picnics, watch fireworks, and yes, drink.
Obviously, if you do drink, you should consider having a
designated driver to get you home safely. You should also know
that area police are stepping up their efforts to locat…
I regularly receive calls from people who are new to the justice
system, having never been charged with a crime before. More often
than not, people who do not have a criminal record want to know
about a program called ARD. They have heard of the program, but
are unfamiliar with its requir…
For people who have a Commercial Drivers License (CDL), a DUI has
the potential to end their career. The consequences for a CDL
holder convicted of DUI are often more severe than the
consequences for a standard drivers license holder. It is
important to understand how a DUI charge will af…
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 …
A new study shows that drivers who
have smoked marijuana may not be as dangerous as those that have
The National Highway Traffic
Safety Administration recently released a study which compared
crash rates among drivers who had marijuana in their system and
DUI – Driving under the Influence. This means that you can only
be arrested and charged with DUI if you are under the influence,
or impaired, by some kind of substance, right? Wrong. Under the
laws of Pennsylvania, there is a way for you to be arrested for
DUI even if you are not impaired…
I wrote a blog post several months
ago about what you should tell the police if you are stopped. I
had said that you should only say what’s absolutely necessary,
and not volunteer any information. The same is not true, however,
when you hire an attorney.
There are very strict
the last decade or two, animals have enjoyed a rise in the value
society places on them. Many people now treat their pets as more
than just an animal; they’re members of the family.
Unfortunately, the law hasn’t kept up with this exalted view of
our pets. The law still sees animals…
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 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.