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Doctor with DUI Conviction Receives Public Reprimand from Medical Board
The Medical Board of California treats single DUI convictions for physicians with high blood alcohol concentrations (BAC) as serious matters, which warrant the filing of formal administrative charges by Accusation. An “Accusation” is like a complaint in a civil case. While the Attorney General and Board staff have generally sought probation in such matters, the clear trend for cases that proceed to an administrative hearing is a decision for Public Letter of Reprimand (PLR). In our experience, a PLR or public reprimand, while still reportable discipline, does not result in exclusion of the physician by HMO's or insurers, or privileges restrictions by hospitals, while probation often does. The result below demonstrates why a physician with a single DUI conviction with high blood alcohol may need to pursue a hearing to avoid probation.
While on vacation, a California physician drove home from a birthday dinner after the designated driver became unavailable. The doctor was arrested on a charge of Driving Under the Influence (California Vehicle Code Section 23152). A blood test revealed a blood alcohol concentration of .20%. The doctor pled "no contest" to misdemeanor driving under the influence of alcohol (DUI).
After reporting the conviction to the Medical Board as required by Business and Professions Code section 802.1, the doctor explained the circumstances leading to the arrest and plea at an interview with a Medical Board investigator. The Board then filed an Accusation based on violation of Business and Professions Code Section 2239. Section 2239(a) provides:
". . .the use of any of the dangerous drugs specified in Section 4022, or of alcoholic beverages, to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely or more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this section, or any combination thereof, constitutes unprofessional conduct. The record of the conviction is conclusive evidence of such unprofessional conduct."
The Medical Board will normally only file an Accusation upon a second misdemeanor conviction for DUI, as provided in this section, unless there is evidence that the doctor presented a danger to him or herself or others. Such evidence may be the causing of an accident or injury, or in the Board's view, driving with high blood alcohol. The latter applied in this physician's case, even though not charged, so an Accusation was filed based on the single DUI conviction.
We arranged for the physician to undergo an evaluation for alcohol or substance abuse with a recognized addiction expert. The expert (an M.D.) found that the incident was isolated and that the doctor did not have an alcohol problem. We also solicited support from the physician's employer and colleagues, all of whom were aware of the matter and believed the physician was safe to practice medicine.
We requested the Medical Board settle the case for a Public Reprimand. The Medical Board insisted on five years' probation with terms and conditions. We rejected probation and proceeded to an administrative law hearing. At the hearing our substance abuse expert testified, as did the employer-supervisor, a medical colleague, and the doctor. All testified that the doctor was safe to practice, had never endangered patients or others through alcohol abuse, and was extremely unlikely to reoffend. We argued for a Public Reprimand to the Administrative Law Judge. The Attorney General, representing the Medical Board, insisted on probation. The resulting decision, which was then adopted by the full Medical Board, was for a Public Reprimand.
Our research shows that the majority of Medical Board Accusations based on single DUI convictions that proceed to hearing result in Public Reprimands rather than probation. We are hopeful the Board will soon recognize this fact and modify its approach to disciplinary penalties on such DUI cases, so that the time and expense involved in defending these matters can be avoided.