Defense of Healthcare Professionals Accused of Driving Under the Influence
Rothschild Wishek + Sands LLP Attorneys Defend Healthcare Professionals in Driving Under the Influence Cases and Professional Licensing Investigations or Proceedings Arising from DUI Cases
The Criminal Case
Persons arrested for driving under the influence face criminal conviction(s) and, depending upon the circumstances—including their blood alcohol concentration and whether the person has a prior conviction or someone was injured—face significant penalties including possible incarceration. The consequences of a conviction include:
- Jail or prison: Although driving under the influence cases require mandatory minimum jail terms, in less serious cases alternatives to incarceration are available
- Loss of driving privileges
- Mandatory fines and penalties
- Mandatory probation conditions including no measurable alcohol when driving, ignition interlock devices, and mandatory drinking driver education courses
- Loss of insurance coverage or increased rates for renewal
- Mandatory reporting: Many professional licensing agencies require reports from licensees when they have suffered a misdemeanor conviction or when they face a felony indictment or Information. Some licensing agencies require reports of an arrest. If a professional holds licenses outside California, they may also have reporting obligations for any arrest or conviction depending on the state where they are licensed.
For Healthcare and other licensed professionals, the consequences can be a licensing investigation or a formal accusation leading to professional discipline. It is important to engage criminal defense counsel with experience representing professionals in licensing investigations and proceedings, or for criminal defense counsel to consult with a professional licensing attorney. Most cases are resolved through a negotiated settlement, and prosecutors will sometimes consider the impact of the conviction on a professional license. In some cases, it is possible to negotiate a settlement that will reduce the likelihood of professional discipline. Information shared with the prosecution or the court may be available to the licensing board, so it is important not only to assess how any mitigation evidence will affect the criminal case, but also how it might be viewed by a professional licensing agency. For example, evidence of participation in Alcoholics Anonymous may be viewed favorably by a criminal court judge, but a healthcare licensing agency may view such participation as an acknowledgement of a substance use disorder.
The Department of Motor Vehicles Driver’s License Admin Per Se Suspension Proceedings
A person who is arrested for driving under the influence faces administrative suspension of their driving privileges separate from the possible driver’s license consequences in the criminal case. It is important to request a hearing within the statutory time listed in the notice received from the arresting agency. If a hearing is requested, the Department of Motor Vehicles must prove that the person (i) was the driver, (ii) was lawfully arrested, and (iii) had a blood alcohol concentration of .08 percent or more at the time of driving. Hearings before the Department of Motor Vehicles can also develop important evidence, including through the testimony of an arresting officer, which can assist counsel in evaluating and defending the criminal case.
In some cases, a person arrested for driving under the influence receives a notice of suspension of their driving privileges for refusing a chemical test. This might be true even if the person cooperated in a blood draw after a search warrant was obtained, if the person advised the officer that they would not agree to an implied consent test. A person facing such a license suspension should timely request a hearing and engage counsel.
The Professional Licensing Investigation and Collateral Consequences Upon Credentialing and Employment
Healthcare professionals who face an allegation of driving under the influence face a myriad of professional consequences beyond the criminal proceedings. Physicians, Nurses, Dentists, Pharmacists, Psychologists, and other healthcare professionals face potential discipline of their professional license.
Healthcare licensing boards consider a conviction for driving under the influence of alcohol or drugs to be substantially related to their professional practice and a basis for license discipline. Even without a conviction, there are statutory provisions which make the use of alcohol in a manner that endangers the licensee or the public a separate basis for discipline for some healthcare professionals.
Healthcare agencies have adopted Uniform Standards for Substance Abusing Licensees, which mandate rigorous disciplinary conditions whenever discipline is imposed on a healthcare professional, including evaluations, testing, and treatment. Physicians are presumed to be substance abusing licensees whenever they suffer a conviction for driving under the influence.
Physicians in particular must consider the potential impact upon:
- Hospital Privileges: Depending upon the specific bylaws, a physician may have reporting obligations to Medical Staff and may face peer review investigation, requests for fitness evaluations, or referrals to wellness committees
- Employment: Depending upon the member, shareholder, or employment agreement, physicians may have reporting obligations. If discipline is imposed by the Medical Board of California, some face possible loss of employment if the employment agreement forecloses restrictions on the physician’s professional license or if conditions of a Medical Board probation interfere with job responsibilities, such as a restriction on supervision of mid-level practitioners
- Out of State Licenses: Depending upon the state, there may be reporting obligations to the Medical Board(s) of other states where the physician holds a license
- Specialty Boards: There may be reporting obligations to Specialty Boards, and in some cases professional license discipline may result in the loss of Board Certification during any period in which a license restriction is imposed by the Medical Board
Healthcare professionals should not navigate a criminal allegation of driving under the influence without consulting an attorney with experience in professional licensing. Prosecutors are increasingly open to considering the collateral consequences of a criminal conviction as part of negotiating a resolution in a criminal proceeding. If the charges are resolved through a settlement, the information shared with the prosecutor and court will be available to the professional’s healthcare licensing agency. The terms of any settlement can have a significant impact upon whether a healthcare licensing agency determines to seek discipline and the nature of any discipline that is imposed. A first conviction for driving under the influence will not always result in professional discipline. Healthcare licensing boards consider the facts and circumstances of the conviction, including the blood alcohol concentration, whether an accident was involved and whether anyone was injured, and other mitigating and aggravating circumstances in deciding whether to initiate a disciplinary proceeding.
How We Can Help
Rothschild Wishek + Sands LLP defends healthcare professionals in driving under the influence prosecutions in Northern California and related professional licensing proceedings throughout California. We have the unique ability and experience to represent clients facing a driving under the influence charge in their criminal case, Department of Motor Vehicle driver’s license proceedings, and professional licensing investigations and proceedings. For our Northern California clients, this means you can avoid the additional expense associated with engaging separate attorneys for the criminal and licensing matters. If your matter is outside of Northern California, we can assist you in finding highly qualified local criminal counsel and assist with the healthcare licensing investigation and defense.
More Information:
Medical Board of California Uniform Standards for Substance Abusing Licensees
https://www.mbc.ca.gov/Download/Publications/uniform-standards.pdf
Board of Behavioral Sciences Uniform Standards for Substance Abusing Licensees
https://www.bbs.ca.gov/pdf/publications/dispguid.pdf
Board of Psychology Disciplinary Guidelines and Uniform Standards Related to Substance Abusing Licensees
https://www.psychology.ca.gov/forms_pubs/disciplinary_substance_abuse.pdf
Department of Motor Vehicles DUI Hearings
Department of Health Care Services Driving-Under-the-Influence Programs
https://www.dhcs.ca.gov/individuals/Pages/DUI_Programs.aspx
Petitions for Modification, Termination of Probation, or Reinstatement