Tag Archive for: Our Rights

Section 2: Scientific Explanation of Pharmaceutical Contamination

Pharmaceuticals in Our Water Part 3: Section 2, Subpart B – Scientific Explanation of Pharmaceutical Contamination, Environmental Impact. Meanwhile, the link between the consumption of pharmaceutically contaminated water and ill health effects in humans has been insufficiently studied. However, there is no shortage of studies establishing deleterious effects to animals living in environments with pharmaceutically contaminated waters.  Such effects include the following: “abnormal thyroid function and development in fish and birds; decreased fertility in fish, shellfish, birds, and mammals; decreased hatching success in fish, birds, and reptiles. In addition, demasculinization and feminization of fish, birds, reptiles, and mammals; defeminization and masculinization of gastropods, fish, and birds; decreased offspring survival; and alteration of immune and behavioral function in birds and mammals.”[23]

              Firstly, of particular note is the effect that pharmaceutical estrogens and antidepressants have on aquatic life. For example, in a Canadian study, scientists polluted a lake with estrogens in concentrations similar to that found in a local municipal water supply.[24] Secondly, scientists observed the fathead minnow present in the lake water and after four years, “the fish had all but disappeared from the lake.”[25] Furthermore, the male fish had become sterile or transformed into female fish and the female fish essentially received a low dose administration of birth control (which is essentially estrogen).[26] In conclusion, three years after the scientists ceased the estrogen treatment, the fish population returned to normal.[27]  

Contaminants should never be present in our water supply.

However, a different study about pharmaceuticals in our water found that when male fathead minnows are exposed to birth control for a majority of their life, they become female and are unable to reproduce.[28]  For instance, such gender-swapping effects have been observed in fish at estrogen concentrations as low as three parts per billion.[29]  For reference, this concentration can be achieved by dissolving one birth control pill into 2,641 gallons of water.  “[A] Generally, a human female using the birth control pill will excrete this amount in her urine over the course of a single day.”[30]  In addition to estrogens, the presence of antidepressants has ill effects on aquatic life including the triggering of spawning in bivalves and crustaceans, decrease in prey capture ability, and reduced predator avoidance.[31]

[23] Thomas M. Crisp et al., Environmental Endocrine Disruption: An Effects Assessment and Analysis, 106 Envtl. Health Persp. 11, 11 (Supp. 1998).

[24] Halford, supra note 2.

[25] Id.

[26] Id.

[27] Id.

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[28] Id.

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[29] Id.

[30] Id.

[31] Melissa M. Schultz et al., Antidepressant Pharmaceuticals in Two U.S. Effluent- Impacted Streams: Occurrence and Fate in Water and Sediment, and Selective Uptake in Fish Neural Tissue, 44 Envtl. Sci. & Tech. 1918 (2010).

Section 1: Introduction

              Pharmaceuticals in our water. Pharmaceuticals are in our rivers, streams, lakes, oceans, and ground and soil waters.  A U.S. Geological survey conducted from 1999-2000, found at least one of ninety-five organic wastewater contaminants, such as “antibiotics, other prescription drugs, non-prescription drugs, steroids [and] reproductive hormones” in eighty percent of the one-hundred and thirty-nine streams sampled.[1] A 2008 Associated Press investigation revealed “[a] vast array of pharmaceuticals including antibiotics, anti-convulsants, mood stabilizers and sex hormones […] in the drinking water supplies of at least 41 million Americans” in twenty-four major metropolitan areas.[2] In 2013[3], the U.S. Environmental Protection Agency found that there were at least twenty-five different active pharmaceutical ingredients in the water at fifty large wastewater treatment plants across the United States.[4]

              Despite the pervasiveness of pharmaceuticals in our nation’s waters, authorities have taken little action to prevent further contamination or to address existing contamination.  However, federal environmental statutes do not directly address the discharge of pharmaceuticals into water.  As a result, most wastewater processes do not target pharmaceutical contaminants[5];nor could they due to lack of capacity and technology.[6] Therefore, many believe that regulating pharmaceutical discharge is a futile exercise.  Christian Daughton of the EPA noted that “[g]iven the vast array of mechanisms of drug action and side effects. The total number of different toxicity tests possibly required to screen the effluent from a typical [sewage treatment plant] could be impractically large.”[7]

              Furthermore, the discussion that follows includes a scientific explanation of the human and environmental impacts of pharmaceutical discharges and the sources of such discharges. (as Section 2); The current legislation that regulates pharmaceutical discharges (as section 3); the scientific solution to preventing pharmaceuticals from entering waters (as part of section 4); and a feasible legal remedy to pharmaceutical discharges (as part of section 4). Additionally, the discussion as a whole makes the case that unregulated pharmaceutical discharges present serious environmental and human health risks that demand statutory directive.

[1] Dana W. Kolpin et al., Pharmaceuticals, Hormones, and Other Organic Wastewater Contaminants in U.S. Streams, 1999–2000: A National Reconnaissance, 35 ENVTL. SCI. & TECH. 1202, 1203 (2002).

[2] WORLD HEALTH ORG., PHARMACEUTICALS IN DRINKING WATER 15 (2012); Jeff Donn et al., Pharmawater I: Pharmaceuticals Found in Drinking Water, Affecting Wildlife and Maybe Humans, ASSOCIATED PRESS (Mar. 9, 2008), http://hosted.ap.org/ specials/interactives/pharmawater_site/day1_01.html; Matt Harvey, Your Tap Water Is Probably Laced with Antidepressants, SALON (Mar. 14, 2013), http://www.salon.com/ 2013/03/14/your_tap_water_is_probably_laced_with_anti_depressants_partner/; David Noble, Trouble at the Tap, WATER QUALITY PRODUCTS.

[3] That year Americans filled nearly four billion prescriptions.

[4] M.S. Kostich et al., Concentrations of Prioritized Pharmaceuticals in Effluents from 50 Large Wastewater Treatment Plants in the U.S. and Implications for Risk Estimation, 184 ENVTL. POLLUTION 354 (2014)

[5] See Staffan Castensson, Pharmaceutical Waste, in PHARMACEUTICALS IN THE ENVIRONMENT: SOURCES, FATE, EFFECTS AND RISK 489, 497 (Klaus Kümmerer ed., 2008) (“Pharmaceuticals are designed to be resistant to biological degredation”)

[6] Id.

[7] Christian G. Daughton & Thomas A. Ternes, Pharmaceuticals and Personal Care Products in the Environment: Agents of Subtle Change?, 107 ENVTL. HEALTH PERSP. 907, 908 (1999).

The first section of the Sherman Antitrust Act targets specific business conduct that is anticompetitive by nature. The text of the first provision reads:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.

Trusts – from this statutory language the courts have derived three essential elements to a violation of the first provision of the Sherman Act. The first and arguably most important element of such a violation is the existence of an agreement. This is to say a business cannot violate the first provision of the Act on its own. They must have a partner agree to participate in the anticompetitive activity. In the case of a conspiracy, the existence of an agreement can be hard to prove. Conspiracies are by definition secretive, and are often hard to detect.

Usually the existence of such an agreement must be inferred from the surrounding evidence. Although there must be alleged facts sufficient to make the existence of a conspiracy not only conceivable but plausible. The agreement element represents the actual collusion among businesses. This is prohibited because of its unwanted anticompetitive effect on major markets. The agreement requirement also puts some forms of anticompetitive conduct (such as price discrimination) beyond reach of the statute, since it takes at least two to form an agreement.

The second element of the first section of the Sherman Antitrust Act is that the agreement unreasonably restrains competition. The term “unreasonably” is crucial to interpretation of the statute, since it gives courts wide discretion in its interpretation and purports to draw the line between legal business conduct and illegal collusion. Since all monopolies are not inherently illegal, courts must consider whether a given monopoly came about as a result of a legitimately successful business plan or as a result of collusive or anticompetitive behavior.Sherman Antitrust Act

Courts begin to examine whether a restraint on competition is unreasonably caused by a collusive agreement. They are engaging in applying what is known as the “rule of reason.” The “rule of reason” is an interpretive policy that recognizes that mere possession of a monopoly is not illegal, unless the monopoly is the result of an unreasonable acquisition or maintenance of the monopoly. The “rule of reason stands in contrast to the per se rule, which automatically deems some activity to come within the purview of the statute. For example, price fixing, bid rigging, and market allocation schemes are both per se violations of section one. However, a judge will entertain arguments and personally interpret the statute if a monopoly has been acquired in a way that could be construed as an unreasonable restraint on competition.

The third element of a violation of the first section of the Sherman Act is that the activity affects interstate commerce. That is to say that purely local activity should be left to regulation by state and local authorities. However, elements like these have rarely been a problem for prosecutors. That can usually demonstrate a sufficient out-of-state ripple effect of almost any anticompetitive activity a business engages in. This was originally passed by Congress under their Constitutional enumerated power to regulate interstate commerce. The justification for the federal legislation is that anticompetitive conduct is harmful to interstate commerce. The third element of a violation of section one reaffirms the source of their authority.

In sum, under the Sherman Antitrust Act, in order to show a violation, the prosecution must prove three elements beyond a reasonable doubt. The government must show the existence of an agreement, which unreasonably restrains competition, and affects interstate commerce. Price fixing schemes, bid rigging schemes, and market allocation schemes are all per se violations of the Act. For instance, can be prosecuted under the first section.

What is the Sherman Act? The Sherman Antitrust Act of 1890 (15 U.S.C. § 1-7) has been one of the most enduring pieces of legislation in the nation’s history. Passed in an effort to protect consumers from collusive anti-competitive behavior. For instance, by market participants, the statutes are still applied over a century later to prohibit agreements that unreasonably restrain market competition. The Sherman Act mainly focused on collusion among two or more businesses. Furthermore, to effect a favorable market position by eliminating some or all competition. The statutes outlaw such activity as price fixing, bid rigging, and market allocation schemes. In addition, criminalize most forms of monopolization as well. Navigating the Sherman Act is key to understanding sorts of business conduct are prohibited. Moreover, as well as how a charge of antitrust violation can be defended against.

The first two sections of the Act contain the substantive provisions of the legislation. The first section prohibits specific means of anti competitive conduct. However, the second section outlaws end results that are by nature anti competitive.  The third section of the Act extends the first two provisions to reach US territories and the District of Columbia along with the 50 states. The fourth section conveys federal jurisdiction and investigative authority to the federal district courts and the Attorney General’s office, respectively. In the fifth section, Congress expressly provides that additional parties can be brought into antitrust prosecutions if sufficiently involved in the collusive activity. The sixth section of the Act provides for criminal forfeiture of property owned under collusive or conspiratorial contracts or agreements. Finally, the last section defines “person” to include corporations and associations. Therefore, means that corporations can be charged and prosecuted criminally under the Sherman Act.

NAP policy claims lead to federal scrutiny of Wiregrass farmers. A federal spotlight has been placed on the Wiregrass area due to farmer’s filing an unusually high number of claims for a little known federal assistance program.  The program in question is called the “Noninsured Crop Disaster Assistance Program”, or the “NAP program” for short.

This is a federal program administered by the Farm Service Agency (FSA). Therefore, provides protection from natural disasters for farmer’s growing crops for which crop insurance is unavailable.

A local Wiregrass employee of the FSA has been indicted in federal court for filing fraudulent NAP claims. Although, speculation is that other farmers in the area may also be under investigation.

In the Houston County area, private crop insurance is generally available for commodities such as peanuts and cotton, while farmers cannot obtain insurance on produce crops such as watermelons and squash.  As a result, many farmers cannot obtain the financing they need to purchase supplies necessary to plant the high risk crops.  This is where NAP protection becomes available for commercial farmer’s.

“Eligible Producers” can apply for this NAP insurance from the federal government, which provides protection up to approximately $125,000 in the event of total crop loss due to a natural disaster, such as flooding or drought.

The question many have been asking is exactly what is an “eligible producer”?  The program specifies that to be considered an “eligible producer” for NAP protection you must be an owner, landlord, tenant, or sharecropper who shares in the risk of producing the crop. Moreover, is eligible to share in the crop available for marketing from the farm or would have shared had the crop been produced.  Exactly who this definition covers is arguably open to interpretation. Although, will likely be the focus of some high stakes litigation in Alabama’s federal courts.

Because of the unusual weather conditions that took place during 2016 and 2017. Which included extended periods of draught and extreme rain, many produce crops failed and were eligible for NAP coverage. This led to an increase in NAP claims in and around the Dothan area. Leading to FSA having the prospect of huge federal payouts.  While some farmers may have committed fraud by filing NAP claims under ineligible circumstances. The fear is that innocent farmers and lenders may be swept up into the investigation due to the government’s desire to avoid paying the large number of NAP claims.

If you are involved in a NAP claim in any way, whether you are a farmer, land owner, sharecropper, or lender, and have any questions, feel free to call our offices to discuss your situation.  If you are approached by an investigator, we recommend you seek our assistance. Furthermore, assistance of another qualified federal criminal attorney with a working knowledge of the NAP program.

7 Reasons People Talk To The Police – And Why You Shouldn’t. Often, one of our first encounters with a potential client involves them telling us that the police want to talk to them. What should they do? Thankfully, they’ve gotten in touch with us before making a big mistake. What do we tell those people (and are now telling you at no charge)?

If you think it is even remotely possible that you are under suspicion for a crime, NEVER talk to the police without first speaking to an attorney. Most people, especially innocent clients, usually don’t understand this advice at first.

First, they say they have “nothing to hide.”

The purpose of every interview is to get you to confess to a crime. Investigators go through hours of training on how to get people to confess. They are trained on how to ask questions. All with the goal of getting a confession or at least get you to say something inconsistent or against your interests. Part of the Miranda warning people are usually given before they talk to police is: “Anything you say can and WILL be used AGAINST you in a court of law.” Whatever you say will be used against you. That’s a pretty good reason not to talk.

Believe it or not, it is common for innocent people to confess. Some studies suggest that up to 25% of confessions are “false confessions” given by a defendant who is confused, tired, misheard the question, is misunderstood by the detective or is simply wanting to get out of the interview room because they’ve been there for hours.

Many people are surprised to learn that the FBI usually does not record their interviews with suspects. (They have suggested a change to this policy, but many agents still follow the old protocol.) They have two agents sit in a room with the suspect. One agent asks questions and the other takes notes. Because they don’t record the conversation with you, it is their word versus your word about what exactly you said. What happens if they misunderstand something you say and tell the jury that you confessed? A jury will probably believe them, and not you.

Next, they say that by not talking to the police it “makes me look guilty.” If the police suspect you are involved in a crime and want to talk to you, something they know ALREADY makes you look guilty. They are already suspicious of you. Further, the fact that you do not talk to them and request an attorney instead is not admissible in court.

They also talk to police because “it will look good” for them. Once you have an attorney representing you, you will have plenty of opportunities to cooperate as the case progresses, if that is the best strategy. In more than 35 years of criminal law practice, we’ve never seen a judge punish a defendant because they asked to speak to an attorney before talking to a detective.

They talk to police because “they promised” not to charge them or give them a deal in court if they would just tell the truth. People are shocked to learn that the law allows police to lie to you. Investigators know this and use this to their advantage. They will tell you that evidence points to your guilt, even if such evidence doesn’t exist, just to get you to confess. They will make you promises that they won’t charge you or will help you get a good deal if you just confess.

This is a lie because they don’t have that authority. No police officer can give you a deal, only the prosecutor can do so and usually a prosecutor is not even involved in the case when the police are asking to speak to you. If cooperation appears to be your best option, then a good attorney will negotiate that cooperation with the prosecutor, who unlike police, is required to keep their promise.

The police “already know everything.” This doesn’t mean that what they know will be admissible or even available in 18 months or more when your case goes to trial. Yet if YOU give them evidence against yourself, the prosecution will probably still be able to move forward against you even if other star witnesses are no longer available or evidence goes missing.

“I need them to know my side of the story.” This is a valid reason to want to talk to the police, but not to actually talk to the police. A good attorney will be able to get your story to the police on your behalf. By allowing the attorney to do it for you, the detectives can’t manipulate what they are told and use it against you. You also get your story to them without subjecting yourself to a lengthy interrogation.

“I can lie my way out of this.” This is the worst reason for someone to talk to the police. The only thing worse than talking to the police about your case is LYING to the police about the case. To do so is actually a separate crime. Remember Martha Stewart? She did not go to jail for insider trading. She went to jail because she tried to talk her way out of a situation. However, got caught lying to federal investigators. Barry Bonds was not convicted of steroid use, but of obstruction of justice for lying.

If you give a statement to detectives, they are trained to prove you are lying and will likely be able to do so. And remember, they can’t say you lied, if you simply refuse to talk to them.

Suspected of a crime? Do not talk. Do not lie.

If the police want to talk to you, tell them you want your attorney and call us immediately.

Operation T-Bone: Alabama’s Crackdown on Food Stamps Fraud. Teams of Alabama law enforcement officials this morning executed 242 search warrants and made 17 arrests as part of “Operation T-Bone,” an extensive, multi-agency crackdown on food stamps fraud. Investigators filed for forfeiture and condemnation of 11 stores. Alleged to be involved in the fraud, totaling over $1 million in assets. The Jefferson County District Attorney’s Office launched the investigation back in February. Now claim to have proof that the individuals arrested bilked the taxpayer-funded food stamps system for hundreds of thousands of dollars. They also uncovered evidence that some of the ill-gotten gains were wired to Yemen.

Over 900,000 Alabama citizens get government assistance through EBT cards each year. These cards can be used to purchase food and non-alcoholic drinks through the Supplemental Nutrition Assistance Program (SNAP). Investigators allege that the business owners arrested would purchase these EBT cards from welfare enrollees for $0.50 on the dollar. Use the cards to make wholesale purchases of food and drinks to sell in their stores. The person selling their EBT card would then be able to spend the cash. Furthermore, on alcohol, tobacco, illicit substances, or whatever they want.

“Part of the problem, in my opinion, is now they don’t have their food stamps card so they don’t have the money to take care of their families or themselves,” says Deputy District Attorney Cynthia Raulston. “I think it’s a huge cycle of remaining impoverished.”

The investigation had humble beginnings – Gardendale police arrested a man for shoplifting steaks and other items from the local Wal-Mart, and when he was questioned, he claimed he was giving the stolen merchandise to two local convenience stores to resell. When investigators called Wal-Mart’s Global Investigations Unit to see if they wanted to probe further, they were told that Wal-Mart was already investigating those stores for EBT fraud. Investigators learned not only of the scheme to buy EBT cards and purchase stock with them, but also that stores would overcharge for an item and give the cardholder cash back on their purchase.

Raulston called the problem “pervasive” and rampant, saying all it took to fraudulently obtain an EBT card is to walk into the community and mention a beneficiary card. Another concern, beyond the theft of taxpayer funds, is the inflated prices caused by EBT card fraud. According to Raulston:

“One of the biggest issues is they’re marking up these items in the stores and charging more than what retailers would charge and they’re in the middle of food deserts with no transportation so they don’t have a lot of options” … “It’s not only the EBT card beneficiaries, but you’ve got the working poor paying marked up prices. They’re getting ripped off.”

What to Expect at a New Years Eve DUI Checkpoint. It is that time of year again where motorists will be ringing in the new year. This usually consists of good food, music, and the occasional alcoholic beverage. It is this time of year where law enforcement takes a more aggressive stance on DUI enforcement. Checkpoints are one manner by which law enforcement handles the enforcement of DUIs. Below you will find what you can expect during a DUI checkpoint.

When an officer first makes contact with a motorist who is stopped at a DUI checkpoint, the officer will be looking for physical manifestations of intoxication. These manifestations include slurred speech, glassy/bloodshot eyes, an odor of alcoholic beverage, inability to follow instructions or any other signs the officer deems a symptom of intoxication. One of the major other signs the officer will be looking for is whether the motorist is being belligerent or combative.

One of the simplest ways to avoid an issue at a DUI checkpoint is to be polite. A motorist who is polite and cooperative will be passed through much sooner than one who is uncooperative and belligerent. Remember though being cooperative is not the same thing as waiving your constitutionally protected rights. You have the right to refuse field sobriety tests as well as any breath alcohol tests.

If an officer suspects you are guilty of DUI, the next step after observation will involve the above mentioned tests. Officers will request that you submit to field sobriety tests. These tests include the Horizontal Gaze Nystagmus Test, the Walk and Turn Test and the One-leg Stand Test. You have the right to refuse any of these tests. If you refuse these tests or even if you comply with these tests, the officer is the sole decider about who is or is not intoxicated.

The final stage of a DUI checkpoint will consist of a breath alcohol test. This test will calculate a motorists breath alcohol content. In Alabama, this test will likely be the Draegar Alcotest 7110. Prior to providing a breath test, a motorist will be advised their license will be suspended if they fail to provide a breath sample. Although the officer will make it sound as if a motorist has to provide a breath sample, motorists do not. Motorists can always refuse the tests

If for some reason you or someone you know is stopped and arrested for DUI, please call our attorneys at Boles Holmes White and allow us to assist you in the defense of your DUI charge.

Miranda Failures not Grounds for Automatic Dismissal. On a weekly basis, criminal defendants contact our office after having been arrested. The funny thing is, they often aren’t looking for a criminal attorney to defend them. Rather a civil rights attorney to sue the police.  The primary reason provided is that they were arrested and the police didn’t read them their rights.   These defendant’s often explain they aren’t looking for a criminal attorney. The charges must now be thrown out due law enforcement’s failure to read their rights. They now want an attorney to take the case on a contingency basis to sue the cops.

Unfortunately, these complaints, while common, are not well founded.  Such calls occur so frequently. I am just left shaking my head about our population’s lack of knowledge of their Miranda rights, and what Miranda means.

Miranda v. Arizona is a case that was decided by the Supreme Court of the United States in the 1960’s.  What the Court held in Miranda is that any statement made by a criminal defendant cannot be introduced in the trial against that defendant if the statement was made to law enforcement while the defendant was in custody of law enforcement, unless the Defendant was advised that they could remain silent and have an attorney.  In other words, Miranda rights only apply to the admissibility at trial of a Defendant’s statement while in police custody.

There is no right to have your Miranda rights read to you when you are arrested.  In fact, it is common for law enforcement not to read Miranda if they do not intend to interrogate or question the suspect.

This does not mean that failure to read Miranda rights has not ultimately caused the dismissal of a criminal case.  In some very limited circumstances, police have failed to read Miranda rights to someone in custody, yet obtained a confession.  This confession has then been ruled inadmissible in court. Leaving the prosecutor (in a very limited number of cases) with very little evidence to convict the defendant, therefore resulting in a dismissal.

So if you have been arrested, and the police failed to read you your rights, this failure likely won’t matter. Unless you made an incriminating statement.  Such failure by the police in circumstances where you remained silent after arrest does not constitute law enforcement violating your rights.  Rather than seeking to sue the police for violation of their rights, someone finding themselves in that situation should be consulting with an experienced criminal attorney who can help them beat the charges.

Understanding the Draeger Alcotest 7110. In the State of Alabama, in almost every DUI defense case, the issue of a breath test will arise.  The Draeger Alcotest 7110 is the most utilized breath-testing machine within the state of Alabama.  The Draeger, or Drager Company, manufactures the Alcotest 7110.  Draeger is based out of Lübek, Germany.

The Alcotest 7110 is designed to measure blood alcohol levels by analyzing a person’s breath.  The Alcotest 7110 uses two methods to accomplish this measurement.  The first technology used is called infrared spectroscopy (IR).  The second technology used is called electrochecmical cell (EC).

In theory two testing methods should provide greater reliability and legal integrity than a single method of testing, which the Intoxilyzer 5000 utilizes.  Although these two testing methods are supposed to be more reliable, there are other issues that can cause a faulty reading.

One such interference is radio frequency interference.  Radio frequency interference is more commonly known as electromagnetic interference.  One situation where electromagnetic interference could occur is through police radios.  In fact a handheld police radio keyed intermittently can affect radio frequency.

Another issue that can cause problems with the Alcotest 7110 is what has been titled the Tyndall effect.  The Tyndall effect can cause an elevated reading during the optical method of analysis as it measures the absorption of light.  When a person provides a breath sample, suspended solid particles, which may be located in the breath sample, can be isolated in the sample chamber and deflect infrared light.  This can keep the light from striking the detector and cause the appearance of absorption.  Common causes of this issue may be from an air bag deployment or common debris from repeated introduction of room air into the sample chamber.

The two issues listed above are only two of the numerous issues that may arise.  In order to truly vet each situation, you should contact one of our DUI attorneys at Boles Holmes White.