A few years ago, the Medical Board of California denied the medical licenses of several medical residents based on the fact that they had been convicted of driving under the influence. I represented one of the medical residents, whose entire criminal record consisted of a single conviction for driving under the influence of alcohol. Prior to that time, the Medical Board had routinely granted medical licenses (physician and surgeon’s certificates) to applicants who had been convicted of a single DUI.
The Law
According to the California Supreme Court, “a statute constitutionally can prohibit an individual from practicing a lawful profession only for reasons related to his or her fitness or competence to practice that profession." Hughes v. Bd. of Architectural Examiners, 17 Cal. 4th 763, 788 (1998). The California Business and Professions Code prohibits discipline based on a criminal conviction unless the crime is "substantially related" to the qualifications, functions, or duties of the business or profession (Cal. Bus. & Prof. Code §§ 480 [license denials] and 490 [suspension or revocation]). Law governing physicians is even more specific. Two or more misdemeanor convictions involving the consumption of alcoholic beverages constitutes unprofessional conduct. (See Cal. Bus. & Prof. Code § 2239 (a).) The requirement of at least two convictions is designed to satisfy the constitutional requirement as codified by Business and Professions Code sections 480 [license denial] and 490 [suspension or revocation]. Griffiths v. Superior Court, 96 Cal. App. 4th 757, 770 (2002).
The Medical Board's Approach
At first, the Medical Board offered the physician a probationary license if he would enter the Board’s diversion program (the program has since been terminated). Prior to being represented, he accepted the offer and signed a settlement agreement known as a stipulation. After several weeks, the Medical Board members met and voted to reject the stipulation and to deny my client’s license.
The Hearing and Decision
My client and I proceeded to an administrative hearing before the Office of Administrative Hearings in Los Angeles. The Administrative Law Judge (ALJ) imposed probation but found that there was not sufficient evidence of an alcohol problem to justify diversion. The Medical Board of California rejected the ALJ’s decision (known as non-adoption) and ordered probation with diversion.
Diversion Program
At the time, the diversion program was a multi-year program requiring participation in a rehabilitation program followed by multiple weekly meetings, drug and alcohol testing, and counseling. The diversion program prohibited physicians from practicing medicine until approved by a Diversion Evaluation Committee (DEC). The Diversion Program was discontinued in 2008 because of concern that bad doctors would use the program to escape discipline.
Success On Appeal
I appealed the Medical Board’s Decision to the Superior Court. The Superior Court overturned the Medical Board’s denial of my client’s license on the grounds that one conviction for driving under the influence of alcohol is not substantially related to the practice of medicine. After losing two years, my client rejoined his residency program without any record of a license denial.