Medical license applicants in California may have the option to withdraw their applications before a final license denial.  Here is how it works:

The process starts when a medical resident or physician licensed in another state (or foreign jurisdiction) applies for a medical license in California.  The license application is made to the Medical Board of California where a medical license is formally called a physician and surgeon’s certificate. 

Inquiries or investigations will often be triggered in the medical licensing process if the applicant has been convicted of a crime or disciplined in another state.  Medical residents who have been disciplined or terminated from a residency program, or who left a residency (or fellowship program) under unfavorable circumstances will also face further inquiry or investigation. 

If a license application or criminal record check triggers an investigation, the California Medical Board may request a written statement from the applicant and obtain files from criminal courts, police agencies, residency programs and other state medical boards where the applicant is licensed.  Upon conclusion of the investigation, the Medical Board will typically take one of the following actions:

1. Issue a clear medical license;
2. Offer the applicant a probationary license; or 
3. Notify the applicant of its intention to deny the license.

If situtations where the Medical Board does not issue a clear medical license, the applicant is typically afforded the opportunity to withdraw his or her license application prior to formal license denial.  This presents an important decision for the applicant because the potential consequences may include a permanent record of discipline and reporting to future employers through the National Practitioners Data Bank (NPDB).  License applicants facing this critical decision should seek the advice of an administrative law attorney with experience in California medical license defense.

California license law attorney or lawyer is a common search phrase. The proper area of law, however, is administrative law. Professional license defense, or license law, is one area of administrative law. Searching for a California administrative law attorney may help you find the right “license law” attorney. Note: While the caption for your case may state that it is “before” an agency (e.g., Before the Medical Board of California), this is confusing as cases are actually tried before the Office of Administrative Hearings--an administrative law court system for professional licensing cases. Proceedings before the Office of Administrative Hearings (OAH) are governed by the California Administrative Procedures Act which can be found at Business and Professions Code section 11500. Find a California lawyer who is familiar with administrative law practice and procedures.

An investigation by the California Board of Registered Nursing usually starts with a telephone call or letter.  The best course of action is to have an attorney promptly respond on your behalf.  Sometimes, the investigator will start asking questions during the first phone call.  Rather than answering questions, we recommend that you ask what the investigation is about and inform the investigator that you plan to cooperate with the investigation after retaining an attorney. Two weeks is a reasonable amount of time to respond through counsel.

You have a right to request a summary of the complaint against you and to see redacted complaint information in your Board of Registered Nursing file.  You or your attorney should request this information from the Board in writing under Business and Professions Code section 800 (c). 

Exercise control over the situation.  Remember, you have a right to counsel and a right to know the nature of the complaint against you before you answer questions or provide a statement to the investigator.  You also have a Fifth Amendment right against self-incrimination and it is unwise to answer questions that will subject you to criminal charges.   In most cases, however, cooperation through counsel is helpful.

Most investigations are handled by the Division of Investigations of the Department of Consumer Affairs, but in 2010 the Board of Registered Nursing contracted with retired investigators to work "in-house."  The investigator will often request a meeting to discuss a complaint and may request a urine sample for drug and alcohol screening.  Unless you are on probation, you have a right to privacy and are under no obligation to provide a urine sample.

The investigators are professionals who are accustomed to working with counsel.  Exercising your right to counsel does not make you look guilty; rather, it makes you appear to be an intelligent professional who cares about your license.

If a teacher has a DUI conviction, can the state Commission on Teacher Credentialing (CTC) utilize a “per se” standard and conclude that the person is aromatically disqualified as a matter of law from teaching in California?  The answer is no.  In the case of Broney v. California Commission on Teacher Credentialing, the court rejected use of a  “per se” rule. 

The court held that the state cannot merely cite the fact of a DUI conviction and proceed to suspend or revoke a teaching credential. Instead, the state must affirmatively demonstrate that the person is unfit to teach, and that must be done by applying the 7-factor test established by the California Supreme Court in Morrison v. State Board of Education, 1 Cal.3d 214 (1969). The seven factors include:

1) The likelihood that the conduct may have adversely affected students or fellow teachers and the degree of such adversity anticipated;
2) The proximity or remoteness in time of the conduct;
3) The type of teaching certificate held by the party involved;
4) The extenuating or aggravating circumstances, if any, surrounding the conduct;
5) The praiseworthiness or blameworthiness of the motives resulting in the conduct;
6) The likelihood of the recurrence of the questioned conduct; and
7) The extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers. 

These factors have now been incorporated into an administrative regulation (see 5 Cal. Admin. Code. § 80302.)

However, the case did not end well for the teacher.  She didn’t just have a single DUI conviction. She had three of them.  The CTC had suspended her teaching credential after reviewing the Morrison factors and finding her unfit; the trial court affirmed that ruling, but utilized a “per se” test, finding that the third DUI rendered the teacher unfit “as a matter of law.”  The trial then proceeded to utilize the Morrison factors in assessing the penalty – a 60 day suspension and related conditions – and ruled that the CTC acted within its authority.

Although the appellate panel disagreed with the trial court’s use of a “per se” rule on the unfitness issue, it also concluded that the error was harmless.  It reasoned that the trial court would have come to the same conclusion had it utilized the Morrison factors instead of a per se rule on the issue of fitness to teach.

For your convenience, a complete copy of the court’s opinion is attached.

At Slote & Links, we regularly advise individuals whose licenses are in jeopardy, and we also counsel parents, teachers, school administrators, and public and private schools on education law issues.