In California professional licensing law, a second or greater drunk driving conviction seems to invite certain discipline.  However, in certain circumstances, the Medical Board of California has been known to investigate and discipline physicians for a single drunk driving conviction.  Although there is but a single conviction, the Board invariably seeks to paint the physician as an alcoholic, addict, or abuser of alcohol and drugs.  With this mindset, the Board attempts to impose long periods of probation with draconian conditions.  A probationary license can do damage enough – potential loss of privileges, jeopardizing credentials, problems with insurance carriers, problems with employment and employability, and a cost of about $4,000 a year in probation fees.  But drug and alcohol disciplinary cases typically carry with them mandated medical examinations of the physician, daily call-ins for drug and alcohol testing, frequent and expensive testing in sometimes remote locations, and possible treatment and therapy, commonly for a five year probationary period.

The Medical Board of California can find an even sometimes rather small aggravating fact to use to justify punishing a physician with a single drunk driving conviction.  In 2014, the Medical Board filed an accusation against a physician who was arrested for having a blood alcohol level of 0.10%, just slightly above the legal limit.  The physician was stopped by police when a CHP officer allegedly saw him run a red light.  Although we can only surmise the alleged facts from the accusation document (which I do not post here out of respect to the physician), the aggravating factor in this case in my view was that the physician sent a letter to the board in which he wrote that his conviction “was in no way related to work.”  This statement can be seen as lacking an appreciation for the seriousness of the offense and minimizing the conduct, in other words, showing a failure to take responsibility.  This, in my view, caused the board to lose trust in the physician’s judgment.

There are several keys to successfully defending a physician who is subject to discipline for a single drunk driving conviction.  An evaluation and testimony by a carefully selected expert addictionologist, combined with careful packaging and presentation of the case by an experienced attorney, can remove suspicion of alcoholism or alcohol abuse and allay the board’s public protection concerns.  An attorney should be retained from the time of filing of the 802 report, through the Medical Board investigation, and continuing on to the disciplinary case if one is filed.  The physician’s attorney should fight for the lowest possible penalty provided the evidence supports that outcome.

Business and Professions Code section 2239 empowers the Medical Board of California to discipline a physician for dangerous use of alcoholic beverages or drugs.  The statute provides that conviction of even a misdemeanor offense involving the consumption of alcohol or dangerous drugs “constitutes unprofessional conduct” and that the record of conviction “is conclusive evidence of such unprofessional conduct”.  Such a conviction can be a single drunk driving conviction or even a “wet reckless” conviction.  And if the board can prove the alleged unprofessional conduct based upon evidence, a conviction may not be required at all.

For experienced legal assistance with a drunk driving conviction that must be reported, has become a Medical Board of California investigation, or has resulted in an accusation, call Ray & Bishop, PLC at 949-557-4888, or visit our website at www.calicenselaw.com.  Legal advertisement

 

Recently we shared our insight about the professional consequences of getting a DUI for a California registered nurse.  We wanted to share with you some recent feedback we received from a registered nurse who had the same struggles we discussed in our article:

From February 13, 2017:

“I am an RN who was convicted of two DUIs. Upon receiving my accusation from the BRN, working with Mr. Bishop helped relieve much of the stress that I created for myself. He was in constant communication and always responded to e-mails and phone calls in a very timely manner. He took time to thoroughly explain the process to me and helped me understand what to expect. The other gentlemen in his office were also incredibly pleasant to work with (thank you Mo and Andrew!). I feared possible revocation while Mr. Bishop was strongly confident that I would be granted probation. Not only was I fortunate enough to receive probation, but Mr. Bishop managed to settle my case before hearing. Mr. Bishop helped make a terrible situation much more manageable. I highly recommend him to anyone faced with a similar situation.”

Of course, this wonderful testimonial does not constitute a guarantee, warranty, or prediction about your matter.  Every case is different, and the outcome of your legal matter depends on the facts of your case.  Nevertheless, if you are an RN struggling with a licensing issue, we encourage you to contact us to discuss how we can help protect your license.  If you need assistance with a license matter, call us at 949-557-4888, or visit our website at www.calicenselaw.com.  Legal Advertisement

In June 2014, Commission on Teacher Credentialing (CTC) received a report from the Division of Professional Practices (DPP) regarding the processing of its disciplinary cases.   In response to a growing backlog of disciplinary cases referred to the Attorney General’s office for disciplinary prosecution, additional funding was granted to the CTC for more efficient processing of cases.  In 2016, as a backlog of almost 300 cases choked the system, CTC increased fees and directed additional funds to the Attorney General’s Office.  That effort has resulted in additional hiring at the Attorney General’s office, and in turn numerous new disciplinary cases against teachers and appeals of credential denials reaching the hearing process.

As the DPP report found, most CTC disciplinary cases involve crimes against children, sex crimes, and crimes involving alcohol and drugs.   The CTC disciplinary process is a two-step process.  The criminal conviction or complaint initially goes before the CTC for informal review, at which time an explanation from the teacher or teaching license applicant, usually offered in writing, is considered.  An attorney can be very helpful in crafting a response to the CTC.  If the explanation is found to be reasonable, and the case is not too serious, sanctions may range from no action at all to a short suspension.  More serious cases can result in a recommendation of revocation of the credential.  In any case where the penalty is unacceptable or revocation is recommended, we strongly recommend that the teacher request an administrative hearing.  In almost all cases, the teacher will continue to hold a valid credential while the disciplinary case is pending.

Ray & Bishop, PLC, vigorously defends California professional licenseholders accused of misconduct.  If your credential is at risk, call 949-557-4888 for our help or visit our website at www.calicenselaw.com.  Legal advertisement.

Our firm just received a decision from the fourth consecutive disciplinary case against a physician by the Medical Board of California.  The physician was already on probation, and in two prior cases, the physician’s probation had been extended.  The Board accused the physician of misconduct while on probation, and forced the physician to make statements because he was on probation.  Since the standard of proof is much lower to discipline someone on probation – probation can be violated on a showing of only a preponderance of the evidence – the Medical Board of California filed a petition to revoke probation in addition to an accusation.

However, fortunately for the physician, an administrative law judge agreed with our arguments that the Medical Board of California did not meet its burden of proof and dismissed the disciplinary case.   The physician’s license was saved.

This case result does not constitute a guaranty, warranty or prediction of the outcome of any other license discipline case.  Every case is unique.  For more information about how we can fight to save your license, call Ray & Bishop, PLC at 949-557-4888, or find more information at www.calicenselaw.com.  Legal advertisement.

California licensing agencies can issue a default decision against a licensee who has no idea their license was even in trouble.  If you’ve moved and failed to notify your licensing agency about your new address, have trouble getting your mail, or have someone else handling your mail, the first time you learn your license is in trouble might be after your license has been revoked.  But there is something you can do about it.

In California, when an accusation is filed against a licensee (starting a formal discipline case), for almost all cases the licensee must file a document called a notice of defense within 15 days of being served with (sent) the accusation in order to request a hearing and avoid default.  If the licensee fails to preserve their right to a hearing within 15 days of service, the state agency can proceed to discipline the license right away without a hearing.  That almost always means a license revocation done by default.

However, there is relief available from default.  If you act within seven days of when the default decision was served (which usually means seven days from when the agency sent it, not when it arrived), under Government Code section 11520 you can ask the agency to set aside the default.  This motion is best done by an attorney, but it has to be done quickly.  The attorney files a motion and a notice of defense.  If you have a good excuse for not filing the notice of defense, the agency will usually reinstate the license and let you defend the license discipline case.  If the motion is unsuccessful, there can be other options, like asking for reconsideration or filing an appeal in Superior Court (called a writ petition), but those options are more complicated and can be much more expensive.

There is a second type of default – one that the licensee usually knows about.  That’s when a licensee files a notice of defense, but fails to show up at their administrative hearing.  In that case, there is also window of time to ask to set aside the default before a proposed decision is issued.  If you let that time pass, then you have to try the seven day motion or other legal options.

A surprise default, or realizing you didn’t show up at your hearing, is about the worst feeling a licensee can have.  Call the attorneys at Ray & Bishop at 949-557-4888 for immediate help.  For more information, our website is www.calicenselaw.com.

It only takes a split-second of bad judgment for a registered nurse to get behind the wheel of a car after consuming some alcohol, but the professional consequences can be severe and last a lifetime.  Any nurse with a DUI arrest can attest to the painful, humiliating consequences of being dragged before a judge and accused of the crime.  Harsh fines, mandatory classes, and driving restrictions can be handed down in court.  But the true professional consequences often spring up months or even a year or more after the arrest and conviction.  The California Board of Registered Nursing (BRN) has stiffened penalties and adopted stricter enforcement measures against nurses who are accused of a DUI, sometimes even if the nurse is not even convicted.  If you are a nurse in this situation, read on to find out what could happen to you, and how qualified, experienced counsel can help.

BRN usually makes contact with a nurse involved in a DUI either immediately after the arrest or soon after the conviction.  The Board may get involved because the California Department of Justice has notified the BRN of an arrest or of a conviction.  Nurses have an obligation to report criminal convictions to BRN, so self-reporting can also trigger Board inquiries and action.

In reaction to a report of a DUI arrest or conviction, the Board’s first step is sometimes to offer the nurse entry into its “confidential diversion program,” a third-party program designed to help addicted professionals get clean from drugs or alcohol.  Nurses will often get a form letter from the Diversion Program, signed by an analyst or sometimes just from the “Program” generally, indicating that the Board has been made aware that the nurse suffered a criminal incident involving drugs or alcohol.  While the decision to enter diversion is a personal one and cannot be made by an attorney or a third party, one can see from the program description on the BRN website that diversion is meant for addicted professionals.  It is often a poor fit for nurses who do not struggle with addiction, and the decision to enter diversion should be made after careful consideration.  Also, although diversion can avert Board discipline, failure in diversion can lead to discipline after a torturous path of scrutiny at intake, addiction treatment, suspension from work, and harsh oversight.

If a nurse declines diversion, the Board usually reappears a few months later—sometimes before the conviction, sometimes after—with a letter requesting the nurse to provide a litany of documents, including certified court records and police records, along with an explanation of what happened.  The timing of this letter is critical.  If a nurse has not yet been convicted or plead to any crime, then he or she must carefully consider how to balance their Fifth Amendment right to remain silent against the Board’s request.  This is where the involvement of a licensing attorney, sometimes with input from criminal defense counsel, can make an important difference.

Assuming a conviction results from the arrest, the conviction must now be reported to the Board of Registered Nursing and explained in detail.  Strong evidence of rehabilitation should be gathered and presented to the Board at this stage, and an experienced licensing attorney will know the Board’s reporting requirements and the most helpful evidence to include with a nurse’s letter of explanation.

Whether the Board ultimately files an Accusation—a formal disciplinary charge against the nurse—depends on a few factors.  Recently, the Board has been filing Accusations on single DUI convictions at all blood alcohol content levels, after evaluation of the circumstances of the intoxication and arrest and other factors.  For multiple alcohol-related convictions, the Board will almost always file a case even if many years pass between incidents.  If you are a nurse who receives an Accusation, it is vital that you get representation immediately.  Your license is at stake, and your future employment could depend on the type of conditions attached to your license as a result of Board discipline.

Senior Associate Ms. Lindsay Johnson recently represented a prospective insurance agent who had been summarily denied a license because of a felony conviction for assault.  As we have discussed on the blog before, a “summary denial” is a denial that precludes the applicant from even having an administrative hearing on the issue of fitness for licensure.  The answer from the Department was a flat “no” with no recourse.

Except, through Ms. Johnson’s diligent work, we filed a petition for reconsideration with the Department of Insurance, and the summary denial was set aside.  The matter was ordered to be heard at an administrative proceeding.  However, through negotiation and the presentation of quality evidence, our client was granted a restricted license without the need for hearing.

As with all our fine results, we have to make clear that no individual case outcome can help predict what will happen in your case.  Every case is different, and this summary of excellent work does not constitute a warranty or a prediction of your case.  If you have a problem with the Department of Insurance of any kind, you should seek qualified, experienced counsel.  Legal advertisement.

As we recently highlighted, our excellent associates are particularly successful when appearing in front of state agencies on Petitions for Reinstatement.  Ms. Lindsay Johnson appeared in front of the Board of Vocational Nursing and Psychiatric Technicians on behalf of an LVN who had surrendered her license after being placed on probation.  At the time of the discipline, the client was represented by a different firm.  With Ms. Johnson’s help, our client presented strong evidence of rehabilitation and sobriety.

Ms. Johnson appeared before the Board and presented evidence and arguments in the client’s favor.  The Board reinstated the client’s license to practice.

No individual case outcome can help predict what will happen in your case.  Every case is different, and this summary of excellent work does not constitute a warranty or a prediction of your case.  If you are an LVN with a licensing problem, you should seek qualified, experienced counsel.

Our firm boasts some of the finest attorneys in California.  Recently, our Senior Associate Attorney, Ms. Lindsay Johnson, achieved remarkable success with the California Board of Accountancy.  Our client’s CPA license had been revoked in a prior disciplinary matter that was handled by another law firm.  The client had been convicted of making false statements to a federal agency, preparing a false tax return, and burglary.  The Board later learned that our client had failed to disclose his license denial on another state application and, additionally, had been denied the right to appear before the Securities and Exchange Commission.

In spite of these obstacles, the client originally tried to reinstate without the help of an attorney, but was unsuccessful.  After hiring our firm, Ms. Johnson appeared with the client at a meeting of the Board of Accountancy and proved that our client was competent and rehabilitated.  The Board agreed, and reinstated the client’s license.

No individual case outcome can help predict what will happen in your case.  Every case is different, and this summary of excellent work does not constitute a guaranty, warranty or a prediction of how your case will go.  Nevertheless, our firm has demonstrated a track record of success with the Board of Accountancy, and if you are a CPA with a licensing problem, you should seek qualified, experienced counsel.  Legal advertisement.

One of the common concerns we hear from hardworking people who want to get a license is “I don’t think the Board would take somebody like me.”  These are often young, well-meaning, accomplished people who made a mistake in their late teens or early 20s that turned out to be criminal.  Maybe they drank more than they should, maybe they had a crew of friends that wasn’t career-focused, or maybe they just made a bad decision that led to criminal consequences.  If you are denied a professional license because of your criminal record, the most important question to worry about isn’t “can I get this expunged” or “how much time do I have to wait” or “do I have to disclose this to the agency?”  The most important question is “am I the same person now as I was when I committed the crime?”

For the vast majority of our clients, the answer to that question is “no, of course not.”  They grow up, they get jobs, they get new friends, they stop drinking, they pursue life goals, and they bear nothing in common with the less mature person who committed the crimes on their record.  The challenge is in the proof—how do you prove to the agency that you’re not the same person you were?

That’s where experienced counsel makes all the difference.  A lawyer who’s experienced in licensing law will know exactly how to take all the positive changes you’ve made in your life and present them to a judge or to an agency so that you have the best chance possible of reaching your career goals.  All of those questions we posed above, about expungement or waiting or disclosure, are very important, but they’re only important insofar as they help you prove that you are different.  In fact, most agencies have specific rules that dismissal of a case alone does not prove rehabilitation, notwithstanding the new regulations that were meant to make things easier for people who get their cases expunged.  In the same way, most agencies have specific rules that say “the passage of time alone is not sufficient,” so our clients have to make sure they are spending that time wisely, rehabilitating themselves and gathering evidence to answer the most important question: “Am I the same person?”

If you’re worried that your criminal record will keep you from getting a professional license, consult with an experienced professional license defense attorney.  It’s what we’re here for.