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Stephen Boreman Calls on Medical Board to End Probation for Single DUI Convictions
California's attitudes toward drunk driving and the laws reflecting those attitudes, including the laws, policies and regulations of the Medical Board of California, find their roots in the political success of Mothers Against Drunk Driving (MADD), a private, non-profit organization. In 1980, Candace "Candy" Lightner founded Mothers Against Drunk Drivers (MADD) after her thirteen year old daughter, Cari, was killed by a drunk driver with a record of prior drunk driving offenses. By 1984 the organization had attracted the attention of U.S. politicians. Federal laws were passed to ensure a uniform drinking age among the states. Candy left the organization in 1985 when she saw its emphasis shift.
By the 1990's MADD had become a political force, raising over $9 million in charitable contributions and receiving federal funds as well. California, like most states, had and has its own local chapters. The media has paid attention. MADD was "liked" on social media by over 51% of Americans over age thirteen. The California Legislature responded by lowering blood alcohol levels for DUI charges and imposing potential penalties for cases involving high blood alcohol content. State regulatory boards like the Medical Board of California sought statutes to impose their own penalties on licensees for driving under the influence of drugs or alcohol. (Business & Professions Code Section 2239 was first enacted in 1980, the year Candy Lightner brought MADD into the public eye.)
California Business and Professions Code Section 2239 states that the use or abuse of alcohol (or drugs) to the extent the practitioner presents a danger to self, others or the public, or that affects medical practice, is unprofessional conduct subject to discipline. This would include any felony DUI, or a misdemeanor DUI causing an accident or injuries, or according to the Board’s view, a misdemeanor DUI conviction with high blood alcohol concentration. Another part of Section 2239 makes any second misdemeanor DUI conviction grounds for discipline.
Arguably, where a physician not on the job, nor going to or from work, nor while on call, is convicted of a simple DUI, there is no clear nexus between that conduct and the "qualifications functions or duties of a physician and surgeon". Thus, an argument can be made that a physician convicted of a routine DUI while on vacation or just traveling to or from home should not be subject to Medical Board discipline. However, that is not the position the Board has taken and is not the position favored in general by the California Legislature or the public and media.
The Board generally insists on probation in these cases. However, the Administrative Law Judges who hear the evidence are consistently ruling against the Medical Board. In most cases that went to administrative hearing for a single DUI, the ALJ found that probation is not necessary to protect the public and ordered a public reprimand where evidence was presented that the physician did not have an alcohol abuse or addiction issue. Ironically, the Medical Board then usually adopts the ALJ’s decision for a reprimand only.
The takeaway from these facts are two-fold: 1.) The Medical Board should review and adopt new guidelines for the settlement of single DUI cases, including those with high blood alcohol content, where evidence is presented that the physician does not have an alcohol abuse problem. Based on our research, we believe the appropriate penalty in these cases, at most, is a Public Reprimand and not probation. 2.) Any physician contemplating a plea agreement for a single DUI misdemeanor charge needs to consider the impact on their medical license.
If high blood alcohol content is in the record, even if not charged, the physician should consider seeking an evaluation by a recognized medical expert on alcohol abuse and/or addiction. A good report may help with the criminal case and can definitely have a positive impact on subsequent considerations with the Medical Board. The physician may also want to retain competent medical licensing counsel to assist with the plea deal, the report of the plea and conviction to the Board with mitigating evidence, and to help resolve any Accusation that may be filed with the least negative impact to the physician's license and professional standing.