A state licensing agency has the power to appear in criminal court to ask the judge to suspend a defendant’s license while the criminal case is pending, as a condition of bail. This request is made under Penal Code section 23, usually at the first court appearance (the arraignment) or early in the criminal prosecution process. Typically it is a Deputy Attorney General from the California Department of Justice who appears for an agency, and that agency is often the Medical Board of California or another healthcare licensing agency. Also, under Penal Code section 23, the state agency can appear at sentencing to ask the Superior Court judge to suspend the defendant’s license as a condition of probation.
The main published court of appeal case in this area of law is Naidu v. Superior Court, which sets forth the procedure for bringing and opposing these positions. Ray & Bishop is the firm that argued the Naidu case before the Fourth District Court of Appeal to oppose the license suspension of the defendants in that case. Under the Naidu case, the state agency cannot merely ask for the license to be suspended without proof – as state agencies have done for years. The decision holds that the agency must produce evidence that the defendant is “dangerous if allowed to maintain their license.” This evidence should be presented in a hearing, and may include both testimony and documents. The Naidu decision affords critical due process to defendants who hold occupational licenses. Furthermore, at an early stage of proceedings when the Penal Code section 23 motion is brought, the criminal defense attorney may not have even had the opportunity to review discovery (the evidence that the prosecutor intends to use against the defendant).
Loss of a Penal Code section 23 hearing, resulting in a license suspension, can be a critical blow to a licensed professional. The indefinite suspension of an occupational license while criminal proceedings are pending can permanently damage a career, result in the loss of a job or closing of a business, and puts undue pressure on a defendant to quickly settle the criminal case, possibly for an inferior offer or when the matter should have gone to trial. The suspension of a license in criminal court can also make it much more difficult to successfully save the license later in an administrative hearing with the licensing agency.
Ray & Bishop, PLC, has unparalleled expertise regarding the Penal Code section 23 request for suspension issue. If you are facing a Penal Code section 23 petition and want to maximize the chances of saving your professional license, contact Ray & Bishop for a consultation. We can appear alongside your criminal defense attorney to provide an aggressive defense against the Deputy Attorney General’s request for license suspension in criminal court.