California Medical License Law

ALCOHOL ABUSE, DRIVING UNDER THE INFLUENCE CONVICTIONS, AND THE CALIFORNIA MEDICAL BOARD: Law and Policy

The California Medical Board takes alcohol abuse and Driving Under the Influence (DUI)convictions seriously. The most common DUI administrative charge for doctors in California is violation of Business and Professions Code Section 2239. Section 2239 proscribes the "Excessive Use of Drugs or Alcohol."  Under Section 2239, the use of alcoholic beverages, "to the extent, or in such a manner as to be dangerous or injurious to the license, or to any other person or the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely. . .constitutes unprofessional conduct."

While this broad language could theoretically be applied to the use of alcohol in virtually any setting and is not limited to specific circumstances that might affect a physician's ability to practice medicine safely, the Board by policy has to this point indicated it will not file an accusation charging violation of Code Section 2239 on a single misdemeanor conviction for DUI unless there are other, additional indications of alcohol abuse that suggest a problem with the physician's ability to practice safely.

Section 2239 specifically states that "more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this section, or any combination thereof, constitutes unprofessional conduct." (is subject to disciplinary action).

Section 490 of the California Business and Professions Code also provides that conviction of a crime "substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued" is grounds for discipline.  Section 492 provides further that completion of drug diversion or alcohol problem assessment programs ". . .shall not prohibit any agency. . . from taking disciplinary action against a licensee or from denying a license for professional misconduct, notwithstanding that evidence of that misconduct may be recorded in a record pertaining to an arrest."

Section 492  means that completing a court based diversion or alcohol abuse assessment program does not prevent disciplinary action by the state licensing board, charging violation of Business and Professions Code sections 2239, 490 or even 2234 (general "unprofessional conduct"). (It is not uncommon for the Medical Board to charge unprofessional conduct under Section 2234 for a second DUI offense in addition to violation of Section 2239).

Physicians and other healthcare licensees should always be aware that drinking alcohol excessively can have serious adverse consequences on their professional lives, even if it does not involve driving but  comes to the attention of their licensing board.  California's healthcare licensing boards in recent years have been particularly inflexible and adamant in their attempts to impose discipline for alcohol related conduct.  Licensees should therefore keep this in mind and consider having a designated driver when socializing with alcohol in order to avoid unforseen problems with state licensing agencies that can have serious adverse effects on their professional lives and income.

Given the potential for permanent damage to a medical career, legal representation with an attorney experienced in licensing board policy and law early on with respect to alcohol-related charges or investigations is advisable.

For further information or representation, contact Steve at slotelaw.com.

 

 

When Criminal Matters are Reportable for Medical Board License Applicants or Licensees

 Physicians, including recent medical school graduates and physicians from other states or countries seeking a California medical license must fill out a state application which includes pages L1C and L1D, each of which asks a question pertaining to criminal actions.  Question #23 on page L1C asks "Have you ever been convicted of, or pled guilty or nolo contendere to ANY offense in any state in the United States of foreign country?"  Question 24 on page L1D asks "Is any criminal action pending against you?"

These questions appear straight forward; however, it is amazing how often physician applicants are confused about what must be reported, or not reported, and end up receiving a letter from the Medical Board asking for a narrative explanation of an arrest and/or conviction and why the application "failed to disclose" the matter relative to questions 23 and 24.

For example, many people, including doctors, assume that if probation from a criminal conviction is completed and the matter is then officially "expunged" from their record under California Penal Code Section 1203.4, they need not report the conviction on the license application.  California, however, has a specific statute requiring such convictions to be reported on license applications notwithstanding expungement.  See California Business and Professions Code Section 480(a)(1).

On the other hand, California has a Penal Code provision, Section 1000, that allows a court to impose "Deferred Entry of Judgment" for first offenders charged with certain drug offenses, including:

Possession of Controlled Substances/Solvents/Marijuana/Concentrated Cannabis – Health and Safety Code sections 11350, 11357 and 11377, Penal Code section 381, and Business and Professions Code section 4060;

-       Possession of Drug – Paraphernalia Health and Safety Code section 11364

-       Aiding and Abetting in the Use of Certain Drugs – Health and Safety Code section 11365

-       Being Under the Influence of Illegal Drugs – Health and Safety Code section 11550  and Penal Code section 647(f);

-       Cultivation of Marjuana – Health and Safety Code section 11358 (only if the marijuana planted, cultivated, harvested, dried, or processed is for personal use);

-       Forging or Using a Forged Prescription to Obtain Drugs – Health and Safety Code section 11368 (only if the drugs were for personal use);

-       Driving While Possessing Marijuana – Vehicle Code section 23222(b);

-       Soliciting Drug-Related Acts – Penal Code section 653f(d) (only if the acts were directed at personal use).

When a defendant is given deferred entry of judgment, he or she must plead guilty, but the conviction is "deferred" from eighteen months to three years, while the defendant undergoes a treatment program and supervision.  Once the specified period and treatment is completed, the matter is deemed a nullity and it is as if the arrest and plea of guilty never occurred.

That is, unless you are a physician or nurse or other medical professional.  Then Business and Professions Code Section 492 pops up to say:

"Notwithstanding any other provision of law, successful completion of any diversion program under the Penal Code, or successful completion of an alcohol and drug problem assessment program under Article 5 (commencing with Section 23249.50) of Chapter 12 of Division 11 of the Vehicle Code, shall not prohibit any agency established under Division 2 (commencing with Section 500) of this code, or any initiative act referred to in that division, from taking disciplinary action against a licensee or from denying a license for professional misconduct, notwithstanding that evidence of that misconduct may be recorded in a record pertaining to an arrest. This section shall not be construed to apply to any drug diversion program operated by any agency established under Division 2 (commencing with Section 500) of this code, or any initiative act referred to in that division."

The California Department of Justice reports arrests to state licensing agencies like the Medical Board, including case disposition, so the hapless physician can anticipate some sort of Medical Board disciplinary action despite a Penal Code Section 1000 deferred entry of judgment program completion.

In New York State (and at least one other, Alabama) there is a provision for something called Adjournment in Contemplation of Dismissal (ACD) of criminal charges.  See New York Criminal Procedure Law, Section 170.55. This first offender program for generally non-violent offenses offers the defendant the chance to complete certain terms or conditions such as community service, and if he or she faces no new charges or arrests and the prosecutor does not refile based on failure to complete a term or condition, after six months the matter is deemed a nullity.  The arrest and court record are sealed. California law does not address this procedure, so after the six months has run from the court appearance where ACD was offered, a California physician or license applicant need not report this matter or answer "Yes" regarding convictions.  During the six months of adjournment prior to dismissal, however, he or she must answer "Yes" to questions about pending criminal actions. (See Question 24 on the California Physician's license application).

When in doubt about whether to answer "Yes" or "No" to license questions pertaining to convictions or pending criminal actions, medical license applicants would do well to consult an attorney familiar with Medical Board policy and these provisions.  In addition, currently licensed California physicians must still report any felony charges (indictments or filed information) and any felony or misdemeanor convictions to the Medical Board in writing within thirty (30) days under Bus. and Prof. Code Section 802.1.

If  you have questions or would like legal representation, please visit our website at www.slotelaw.com.

Criminal Actions and your California Medical License

When a California physician faces a criminal prosecution of any kind, it is a life changing event.  One thing the physician might not realize is that criminal conviction is not their only immediate concern.  Failure to notify the Medical Board of California of certain charges and all convictions may result in license discipline and even additional criminal charges and fines under Medical Board law and policy.

California Businesss and Professions Code Section 802.1 requires physicians to report to the Medical Board any indictment or information charging a felony, and any conviction, whether misdemeanor or felony, to which the physician pleads guilty, no contest, or is found guilty by verdict.  Failure to do so in writing within thirty (30) days is a public offense, subject to a five thousand ($5,000) fine.

So while finding a criminal attorney and preparing to address criminal charges may preoccupy the physician facing felony charges, or when convicted by plea or verdict of any felony or misdemeanor, remembering to notify the Medical Board in writing within thirty days can mean the difference between facing licensing discipline and potential fine and not.

This Medical Board notification issue is separate from the fact that a conviction for a crime "substantially related to the qualifications, functions or duties of a physician and surgeon" is grounds for license discipline under Section 2236 of the California Business and Professions Code.

If you have questions or would like legal advice, www.slotelaw.com