District Attorney Michael Lehutsky:

Yesterday [Thursday, Feb. 28, 2008], I learned that a Mark Tanner, an attorney from Philadelphia  had sent various media outlets a copy of a letter he had sent to me, Attorney General Tom Corbett and State Police Colonel Jeffrey Miller regarding a motor vehicle collision that occurred in Salem Township on April 15, 2005.

District Attorney Michael Lehutsky:
Yesterday [Thursday, Feb. 28, 2008], I learned that a Mark Tanner, an attorney from Philadelphia  had sent various media outlets a copy of a letter he had sent to me, Attorney General Tom Corbett and State Police Colonel Jeffrey Miller regarding a motor vehicle collision that occurred in Salem Township on April 15, 2005.  As a result of the collision, Ms. Diane Glynn was killed.  The driver of the vehicle was Dean O’Halloran.  A copy of the attorney's letter will be sent separately via fax.   The letter was sent on February 21, 2008 and received by my office on February 25.  In response I am providing the following statement:

On April 15, 2005 Diane Glynn's life was taken in a tragic automobile collision with a truck operated by Dean O'Halloran.   My heart goes out to the family and friends of Ms. Glynn for this terrible loss. On February 25, 2008 the attorney representing the Glynn Estate provided information he obtained from discovery in the civil action.  This includes information that indicates that approximately two hours after the crash Mr. O'Halloran had a blood alcohol content above the legal limit of .08%.   This information was not available to my office or the investigators prior to this time.  After the crash, the original PSP investigator obtained information from a witness that the truck O'Halloran was driving was weaving prior to the accident.  The officer interviewed O'Halloran while he was in the ambulance.  He did not observe any indicators of alcohol or drug consumption at that time (i.e., odor, slurred speech, etc.).  Further, it did not appear the ambulance personnel treating him detected any.  Also, the witness who had observed the weaving had some contact with O'Halloran immediately after the crash and likewise did not indicate any evidence of intoxication.  Under PA law (Com. vs. Kohn, 395 Pa. Super. 73 (1990)) the fact of a crash or weaving standing alone will not satisfy the level of proof needed to provide the probable cause necessary to request that blood be drawn for a DUI analysis. 
There must be articulable facts that give rise to the reasonable belief that alcohol or drugs were involved.  While weaving or erratic driving could indicate intoxication, it could also indicate sleep deprivation, distracted driving, talking on a cell phone, illness or other things.  Consequently, standing alone it doesn't provide probable cause of DUI.  Since there was no probable cause, the police could not have properly demanded a blood sample nor could they get a search warrant or subpoena to obtain Mr. O'Halloran's medical records.  Since such medical records are protected from disclosure a warrant or subpoena was the only way the police could have properly obtained these records.  The original investigator retired at some time following the crash.  Prior to retiring, he did know that there was an investigation into an alleged hit and run incident that involved Mr. O’Halloran's personal vehicle the same day as this crash.  This incident occurred in Lackawanna County approximately 2 to 3 hours before the crash that killed Ms. Glynn.  I do not know what the course of that investigation was because it was not within my jurisdiction.  I do know that there are significant issues regarding whether evidence of this alleged incident would be admissible in a prosecution arising out the fatal crash with Ms. Glynn.
Following the retirement of the original investigator, a new trooper was assigned to the matter and he followed up.  We discussed the case and the fact that we needed evidence to provide us with probable cause to obtain medical records of Mr. O’Halloran.  The new trooper followed up with witnesses and the EMT's, etc. to see if anyone could provide an indication that O'Halloran was drinking.   The subsequent interviews failed to produce any additional evidence.
At some point,  Attorney Tanner filed a lawsuit on behalf of Ms. Glynn's estate.  He conducted discovery as part of that lawsuit.  It should be noted that discovery in a civil action is much broader than the criminal sphere in that probable cause is not a requirement.  The threshold for access to information is much lower.  He discovered that Mr. O'Halloran was the son of a state trooper.  This had apparently been learned by the initial investigating officer at some point, but it was not reflected in his reports.  It was unknown to me until I received correspondence from Attorney Tanner on Monday.  Regardless, while Mr. Tanner builds an innuendo that something improper occurred as a result of the relationship, I have not seen any actual proof of that yet.  This includes "proof" within the materials Attorney Tanner sent me.  Nonetheless, the matter will be investigated further and if there was any improper influence it will be addressed appropriately.  With regards to the actual evidence related to the crash, it does not appear that Attorney Tanner developed anything more from the eyewitnesses than what was known already.  It should be noted that the innuendo of impropriety Attorney Tanner alleges is undercut by the fact that independent witness (a citizen eyewitness and EMT's) have not stated that O’Halloran appeared intoxicated at the time.
Attorney Tanner also obtained Mr. O'Halloran's medical records pertaining to his treatment at CMC after the crash.  Under such circumstances, a hospital will generally draw blood for what has come to be known as a "medical" BAC.  The hospital does not want to give a patient medication that may have a detrimental interaction with something that is in a patient's blood stream.  These are, in fact, the records the investigators would have sought if probable cause could have been obtained during the follow-up investigation.  The hospital records established that at about 2 hours after the crash, Mr. O’Halloran had a BAC of .149%.  This result is based on a test of blood SERUM.   It should be noted that a DUI prosecution needs to be based on a WHOLE blood BAC.  It is possible to convert from serum results to whole blood, but the experts say the results generally run 10% to 20% less for a whole  blood.  A rough estimate of O’Halloran's whole blood result would likely be around .12%.
It is not clear from what Attorney Tanner provided when he obtained the medical records for Mr. O'Halloran.  The copy of the results he sent with his letter was part of a deposition exhibit and dated December 19, 2007.  I would imagine that he obtained the information some time prior to that, but I don't know when at this point.  When I was in private practice I handled accident cases and usually the first thing I went after was medical records. The first that I or, to my knowledge, anyone else heard from Attorney Tanner was his letter of February 21, 2008, which was received by me on February 25.  To my knowledge Attorney Tanner never contacted this office prior to that time.  In his letter, Attorney Tanner indicates that the civil case ". . . has now been settled" and he is sending the materials he gathered because he believes Mr. O’Halloran should be prosecuted.  Clearly, if a criminal case can properly be built and successfully prosecuted, I have every intent to ensure that justice is done.  However, I have concerns regarding the delay that has occurred in getting the critical information related to Mr. O'Halloran's post-crash BAC.  This is an issue that will be examined to see what impact it has.
The Pennsylvania State Police have also re-invigorated their investigation based upon the receipt of this information.  I have spoken with the Cpl. assigned to supervise the follow-up investigation.  It is also my understanding that an internal investigation is underway into the allegations of improper influence raised by Attorney Tanner.  This is being conducted by the state Police Bureau of Professional Relations.  Everyone involved in this matter has a sincere interest in seeing that justice is properly served in this case.  However, law enforcement officers also need to be cognizant of the laws that regulate how they conduct their investigations.  There are situations that are tragic, but their tragic nature does not provide the police a license to ignore the laws they are sworn to enforce.   When the review and follow-up investigation into this matter are completed a further statement will be made.  I want to ensure the people of Wayne County that all steps will be taken to ensure that whatever can be done to ensure justice, is done.
Michael P. Lehutsky, Esq.
District Attorney
Wayne County Court House, Honesdale, Pa.
February 29, 2008