A Physician Criminal Defense Lawyer
is Different
In California, a physician criminal defense lawyer has two jobs because he is at the intersection of criminal law and medical licensing. Criminal law is adjudicated in the courts and is governed by high-stakes statutes and "published" case law (legal precedents that other courts must follow). Medical license law is administrative and governed by the medical board. Rules of evidence are loose and the standards that define what conduct leads to license suspension are generally unpublished or vague.
A specialized attorney understands that in California, the Medical Board of California (MBC) has the power to look "behind the plea" to investigate the underlying conduct, regardless of the criminal outcome.
1. The "Conclusiveness" of the Conviction
A regular attorney might think a "Nolo Contendere" (no contest) plea protects you from civil liability. However, for a California doctor, it is a direct admission for licensing purposes.
The Case: Arneson v. Fox (1980) 28 Cal.3d 440.
The Ruling: The California Supreme Court held that a nolo contendere plea stands as conclusive evidence of guilt in a subsequent administrative proceeding.
Practical Example: If you are charged with a crime and take a "no contest" deal to avoid trial, you cannot later tell the Medical Board, "I only took that deal to end the case; I didn't actually do it." The Board will treat the conviction as a settled fact.
2. The "Expungement" Myth
A common mistake by general criminal attorneys is promising that an expungement (Penal Code § 1203.4) will "clear" your record for the Medical Board.
The Case: Krain v. Medical Board (1999) 71 Cal. App. 4th 1416.
The Ruling: Dr. Krain had a felony conviction reduced to a misdemeanor and then dismissed (expunged). The Court of Appeal ruled that expungement does not prevent the Medical Board from revoking a license. The board's duty is to protect the public, and that duty overrides the "fresh start" provided by criminal expungement statutes.
Specialized Strategy: Your attorney must fight to prevent the conviction in the first place or negotiate a "Diversion" that prevents a judgment from ever being entered, as an expunged conviction still counts as a "conviction" under Business & Professions Code § 2236.
3. The "Substantial Relationship" Test
The Board can only discipline you if the crime is "substantially related" to the qualifications, functions, or duties of a physician. A generalist might argue a DUI or a private dispute isn't "medical." A specialist knows California courts define this very broadly.
The Case: Griffiths v. Superior Court (2002) 96 Cal. App. 4th 757.
The Ruling: The court held that multiple DUI convictions are "substantially related" to the practice of medicine because they demonstrate a disregard for the safety of others and the law, even if the doctor was never impaired while treating a patient.
Practical Example: A specialized attorney will focus on rehabilitation evidence immediately. They will have you enter a clinical assessment program before the Board asks, using the criteria found in California Code of Regulations (CCR) Title 16, § 1360.2, to prove you are safe to practice.
4. Prescribing and "Good Faith"
For doctors facing "Pill Mill" or "Over-prescribing" charges (Health & Safety Code § 11154), the defense hinges on "Good Faith."
The Case: People v. Guinn (1983) 149 Cal. App. 3d Supp. 1.
The Ruling: This case helps define what constitutes a "legitimate medical purpose." It established that a doctor must perform a "good faith prior examination" to avoid criminal liability for prescribing controlled substances.
Practical Example: If you are accused of improper prescribing, a specialized attorney will use the Guinn standard to audit your patient charts. They will look for "objective clinical findings" (like an MRI or a physical exam) to prove your "Good Faith," even if the patient was actually an undercover agent lying about their symptoms.
Comparison of Critical California Statutes
Statute | What a Regular Attorney Sees | What a Physician Specialist Sees |
PC § 1203.4 | "Expungement" — The case is gone. | Irrelevant to the Board. The conviction still triggers an "Accusation." |
B&P § 2236 | General "unprofessional conduct." | The "Automatic Trigger." Any felony conviction requires the Board to act. |
B&P § 802 | A reporting requirement. | A 30-day "Landmine." Failure to report a felony indictment is a separate crime. |
PC § 23 | A general sentencing code. | The "Death Penalty." The Attorney General can ask a judge to suspend your license immediately at your first arraignment. |
A criminal defense attorney for doctors must conduct the defense with an eye toward the Manual of Disciplinary Guidelines used by Administrative Law Judges (ALJs).
Unlike a standard criminal case where you might wait for a verdict, a doctor’s defense must be proactive and rehabilitative from day one. Here are the specific areas of focus and the California-specific precedents that dictate this strategy.
1. The "Substantial Relationship" Threshold
In California, the Medical Board cannot discipline you for a "private" crime unless it is "substantially related" to your duties. However, California courts have interpreted this so broadly that almost any crime qualifies.
The Case: Griffiths v. Superior Court (2002) 96 Cal. App. 4th 757.
The Lesson: Dr. Griffiths argued his DUIs were personal and didn't affect his surgery. The court disagreed, ruling that multiple DUIs show a "disregard for the safety of others" and a "lack of judgment" that is inherently related to practicing medicine.
Practical Defense: Your attorney should not just argue "it happened off-duty." They must use 16 CCR § 1360.2 to argue that the specific facts of the case do not evidence a present unfitness to practice.
2. Proving "Rehabilitation" (16 CCR § 1361)
If a conviction is likely, a regular attorney focuses on "mitigation" (why you did it). A specialized attorney focuses on "Rehabilitation" (how you’ve fixed yourself), using the specific criteria found in the California Code of Regulations.
The ALJ’s Checklist for Doctors: ALJs are trained to look for these specific "Criteria for Rehabilitation" when deciding whether to let you keep your license:
- The Nature and Severity of the Act: Is it a one-time lapse or a pattern?
- Total Criminal Record: Do you have prior warnings or "Accusations"?
- Time Elapsed: How much time has passed since the act?
- Compliance with Sanctions: Have you paid restitution and completed court-ordered classes?
- Actual Evidence of Rehabilitation: This is the most critical.
Practical Example: If charged with a drug-related offense, a specialized attorney won't just suggest "rehab." They will ensure you enter a program that meets the "Uniform Standards for Substance-Abusing Licensees" (16 CCR § 1361.5). This includes biological fluid testing (52–104 times per year) and worksite monitors. Doing this voluntarily before the Board mandates it can save your license.
3. The "Inconclusiveness" of Expungement
A generalist attorney might tell you, "Don't worry, we'll get this expunged under PC 1203.4 and the Board won't see it." This is dangerous advice for a California doctor.
The Case: Krain v. Medical Board (1999) 71 Cal. App. 4th 1416.
The Lesson: The court ruled that even if a conviction is dismissed (expunged) under Penal Code 1203.4, the Medical Board can still use the underlying conduct to revoke your license.
Practical Defense: Your attorney must focus on the administrative record, not just the criminal one. They should prepare a "Statement of Mitigation" that addresses the underlying conduct directly, rather than relying on a legal "erasure" that the Board is legally allowed to ignore.
Choosing the Best Criminal Defense Lawyer for Doctors
There are many excellent physician license defense lawyers. There are many excellent criminal defense lawyers. Daniel Horowitz is both. He is also one of an elite few criminal defense lawyers who can legally call themselves Criminal Defense Specialist(s). This is governed by the rules and certified by the State Bar of California, Board of Legal Specialization. Daniel is one of only 5 specialists in all of Contra Costa County California.
If you are a doctor under investigation for a crime or charged with a crime, you can reach Daniel Horowitz at (925) 283-1863.
