Category Archives: DUI

Applying for Deferred Action With a Criminal Record

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Will your criminal record be a bar to your eligibility for Deferred Action for Childhood Arrivals? The new deferred action immigration policy has several eligibility requirements including a relatively clean criminal record. If you have a minor conviction on your record, are you still eligible? Is it worth getting your conviction expunged or dismissed? And if you are considering a plea bargain, are there certain charges you should avoid?

If you apply for deferred action status, the Department of Homeland Security (DHS) will consider you entire criminal record—including arrests and dismissed convictions, but not all convictions are considered bars to eligibility.  Below is a brief explanation and links to further resources.

1. Deferred Action is a discretionary policy, but these offenses generally disqualify an individual at the outset:

  • A felony conviction (offenses punishable by more than one year of imprisonment).
  • A “significant misdemeanor” conviction. “Significant misdemeanors” include: domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm, drug sales, burglary, driving under the influence, and any other misdemeanor for which you received a jail sentence of more than 90 days.
  • Multiple misdemeanor convictions: three or more non-significant misdemeanors, not including traffic offenses (such as driving without a license).
  • Convictions suggesting that you pose a threat to national or public safety (e.g., with gang enhancements).

Even if you have the above types of convictions on your record, you may be eligible under exceptional circumstances (See INA 240(e)).

How do you know what type of conviction you have? If you are considering applying for deferred action, you should request your entire criminal record (from the FBI as well as the Department of Justice in any state where you lived or were arrested) so that you can check for the exact status of any contact you have had with law enforcement and also so that you can check it for mistakes.

2.  Is it worth it to get an old conviction dismissed or expunged?

Having an old conviction dismissed or expunged may help your application if your conviction would otherwise automatically disqualify you. The Law Offices of Thomas Greenberg has extensive experience getting old convictions dismissed and can help you.

Another option—better than getting a dismissal—would be to withdraw your plea (if it was recently entered) for good cause under California Penal Code section 1018 or have your plea vacated (undone) for legal error.  It can be a complex and difficult process to get a judge to vacate your plea, but it may be worthwhile.

3.  What about juvenile convictions?

Juvenile convictions do not automatically disqualify you for deferred action, however, they will be considered.

4. What if you have criminal charges pending?

If you have a criminal case pending, tell your attorney that you are a noncitizen and that you want to try to preserve your eligibility for deferred action. You may want to consider the following options, if available: informally deferring an entry of plea; seeking a deferred adjudication; entering a plea to a lesser, non-significant misdemeanor offense and obtaining a lesser jail sentence; pleading to an infraction or a minor traffic offense—if you are facing a DUI, you definitely want to try to pursue a lesser plea to protect your eligibility for deferred action. The Law Offices of Thomas Greenberg has been very successful in helping clients get charges reduced and protecting their immigration status.

Additional Resources:

Own the Dream http://www.weownthedream.org/

Immigrant Legal Resource Center http://www.ilrc.org/news-events/new-updated-resources-on-criminal-bars-to-deferred-action-for-childhood-arrivals

U.S. Citizenship and Immigration Services: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD

 

Your Criminal Conviction and Your Job Application

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Applying for a Job With a Criminal Record

The federal government is realizing how much criminal convictions for even minor transgressions of the law can hold people back from getting or keeping jobs. Currently, one in four Americans has a criminal conviction of some sort. Employers have a lot of access to applicants’ background reports. Employers can hold some convictions against you, but not others, and employers are required to follow certain procedures when looking into your criminal background.

This new video by the Federal Trade Commission provides some helpful information about how to deal with your criminal conviction when applying for jobs and what rights you have if you think an employer is discriminating against you for your criminal record:

http://www.ftc.gov/multimedia/video/jobs.shtm

 

 

Faulty Blood Alcohol Breath Tests

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San Francisco DUI InvestigationThe past two weeks have seen a lot of news about faulty breath tests and the effect on DUI convictions.  The San Francisco Public Defender Office discovered that the San Francisco Police Department had been falsifying the calibration records for the preliminary alcohol screening (PAS) device its officers use in the field.  The San Francisco Public Defender discovered that SFPD had been fabricating testing records for 20 in-the-field Alco-Sensor IV devices rather than actually conduct accuracy checks every 10 days or 150 tests, as recommended by the manufacturer.

The public defender noticed this fabrication after comparing police logs for calibration records dating back to 2010 and discovering that the logs for the various devices were identical to each other.  As a result, San Francisco may throw out as many as 1,000 DUI convictions.  Other counties that use the Alco-Sensor IV in the field (Santa Clara, Ventura, and others) may also have to re-examine their convictions.

Might this apply to you?  Only if your DUI conviction relied on the in-the-field PAS test alone, and not a breath or blood test that you took at the station.  The breath-analyzing devices and blood tests have not been called into question.

For more information, see this San Francisco Chronicle front page article http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/03/05/BAT51NGCFC.DTL and this March 12, 2012 front page follow-up piece: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/03/12/MN551NI15D.DTL

CPA Licenses and the Duty to Report Convictions

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What Must You Disclose When Applying for Initial CPA License in California or When Reapplying After License Lapsed?

When applying for your initial CPA license in California, you must disclose any and all convictions—felonies, misdemeanors, and infractions—only minor traffic infractions may be excluded. Disclose your convictions on the required “Criminal Conviction Disclosure Form” that you submit with your application to the California Board of Accountancy (CBA).

  • You are required to disclose any pleas, verdicts, or findings by a trial court, even if the conviction may not be final or the sentence actually imposed, until appeals are exhausted.
  • DUIs are not considered minor traffic infractions (they are misdemeanors, or in some cases felonies), and must be disclosed.
  • You are required to disclose convictions that arose from military service, convictions in which the imposition or execution of sentence was suspended, convictions which arose as a result of a failure to appear, and any for which an order of rehabilitation was entered.
  • You are also required to report convictions that have been expunged or dismissed or for which a pardon was granted. Even though you are required to report expunged or dismissed convictions to the California Board of Accountancy, it is still advisable to get any and all convictions eligible for reduction or dismissal for reduction, reduced and dismissed. For more information about getting convictions expunged in San Mateo, Santa Clara, and San Francisco counties, see http://www.defendca.com/expungement-san-mateo.php

For any convictions other than minor traffic infractions, you will need to provide details including: the date of arrest, city and state where arrested, name and location of court where case was heard, details of the violation, details of the sentence imposed, conditions of probation, and fines ordered.

In addition to submitting the Criminal Conviction Disclosure Form, you will also have to furnish your fingerprints to the CBA. The CBA will conduct a criminal history record check with the California Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI). In addition to authorizing a background check, submitting your fingerprints also authorizes the CBA to receive subsequent criminal conviction information on you as an applicant or licensee.

Do CPAs Have An Ongoing Duty to Report Arrests, Charges, or Convictions to the California Board of Accountancy?

When you furnish your fingerprints to the California Board of Accountancy (CBA), you not only authorize the board to conduct a criminal history record check, you also authorize the Board to receive subsequent criminal conviction information on you as an applicant or licensee. Criminal conviction information the board receives includes notice of any plea or verdict of guilty, and any conviction following a plea of nolo contendere (no contest).
Criminal convictions can trigger the CBA to take disciplinary action against you, including revocation or suspension of your license, conditions of probation such as ethics courses or fines, refusal to renew your license, or censure.

You must report to the board in writing, within30 days of the knowledge of a conviction for:

(A) Any felony.
(B) Any crime related to the qualifications, functions, or duties of a public accountant or certified public accountant, or to acts or activities in the course and scope of the practice of public accountancy.
(C) Any crime involving theft, embezzlement, misappropriation of funds or property, breach of a fiduciary responsibility, or the preparation, publication, or dissemination of false, fraudulent, or materially misleading financial statements, reports, or information.
Be aware that California courts are required to report to the board convictions and judgments listed above under (a) and (c), within ten days of entry.

The board is permitted to take action when the time for appeal has elapsed, the conviction is affirmed on appeal, or when an order granting probation is made—however, it is often in your interest to report initial pleas and sentence pronouncements.

The law says that the board can only take away your license based on a conviction that is substantially related to the qualifications, functions, or duties of an accountant. The board specifies that this includes crimes involving dishonesty, fraud, or breach of fiduciary duty, as well as violations of the California Accountancy Act. In addition, the CBA has tried to discipline CPAs for DUI and domestic violence convictions. You will want to argue to the board that the conviction in your case is not related to the job and does not implicate your fitness to perform your profession.

The Law Offices of Thomas Greenberg can help you get the best possible outcome in your criminal case. As our office handles criminal matters exclusively, we will consult with an experienced employment attorney regarding proceeding before any administrative board.

Stopped for a DUI in California: What to do next

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Being stopped for DUI in California is a frightening and often a confusing experience.  If you drink and you own a car, you should  take precautions to avoid driving under the influence.  If you have been drinking, it can be difficult to tell whether you have sobered up enough to drive.

Keep these things in mind in case you are ever stopped for DUI:

  • Request your right to an attorney and do not answer questions.

    As soon as the police tell you that they suspect you of driving under the influence, tell the police that you want to cooperate and that you want to talk to an attorney before you answer any of their questions.  Provide the following four things:  license, registration, proof of insurance, and a blood test (unless you have any drugs in your system).

  • Do take the blood test—unless you have intoxicating narcotics in your system.

    When you get a California driving license you consent in advance to taking a blood or breath test if you are stopped on suspicion for driving under the influence.  If you request the blood test, in most cases it takes longer to submit to a blood test than a breath test because a blood test requires a licensed phlebotomist, who is usually not immediately available, whereas and evidentiary breath test can be administered by a police officer.  During this delay, which can take between a half an hour to an hour, your Blood Alcohol Level will drop.  For instance, a person who takes a breath test immediately after the arrest that shows a .10, had she requested a blood test may have gotten a reading of .07 due to the delay.

  • Call an attorney immediately.

    You need to contact an skilled DUI defense attorney immediately for three reasons:  (1) to be sure that you have one available for the court date, (2) so that the attorney can request the police report and conduct any necessary investigation, and (3) so that the attorney can represent you at the DMV hearing.

  • Avoid discussing your case with anyone other than your attorney.

    Anything you say to anyone other than an attorney can be used as an admission, and if the prosecutor finds out about what you have said to anyone (even a friend), those statements can be used against you in court.

  • Create an outline of what happened.

    As soon as you can, make notes about what happened:  what you drank and where, names of witnesses, the order of events, anything you ate and medications you were taking, any statements you made to the police officer, and anything unusual about the event.  Your notes can be helpful in refreshing your recollection when you meet with your defense attorney to discuss your case.

DUI defense attorney Thomas Greenberg has worked on thousands of DUI cases, is a member of the California DUI Attorneys Association, and is often consulted by other criminal attorneys regarding DUI cases and defenses.  Contact him at (650) 242-0021 to begin the defense process for your DUI.

How to Calculate Your Blood Alcohol Level & Avoid a DUI

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DUI in San MateoBlood alcohol content depends on the amount of alcohol consumed and the rate at which your body metabolizes alcohol. Alcohol is metabolized at a constant rate. No matter what you do—the idea that eating or drinking water after you’ve been drinking sobers you up is a myth, although eating or drinking water before or while you drink can affect your blood alcohol concentration. Factors affecting blood alcohol concentration include the alcohol content in the drinks consumed, body weight and type, rate of consumption, time elapsed since consumption, gender, food, medication, fatigue, overall health, and tolerance. The biggest factor, of course, is how much alcohol you consume. So, what’s in a drink?

Generally, one standard drink is 0.5 oz. of alcohol, but serving sizes rarely equal exactly one “standard drink.” For example:

Type of drink Ounces of alcohol Number of “standard” drinks
One bottle of beer .54 oz One standard drink (However, alcohol content makes a difference: generally, lagers have the lowest alcohol content, followed by ales, porters, and then stout, which has almost twice the alcohol content of lagers.)
One pint of beer
(4.5% alcohol content)		 .72 oz. Almost one and a half “standard drinks”
One 5 oz. glass of wine 0.55 oz One
One mixed drink
(great variation, of course)		 Whiskey sour: 0.60 oz
Manhattan: 1.15 oz		 About one
More than two
A shot 0.5-0.625 oz. About one
Malt liquor (12 oz.) 0.71 oz. Almost one and a half “standard drinks”

Blood alcohol content is basically a function of the total amount of alcohol in your body divided by total body water. In general, the less you weigh the more you will be affected by a given amount of alcohol. People with a higher percentage of body fat and thus a lower percentage of body water will tend to achieve a higher blood alcohol content based on the same consumption of alcohol. This is why women and older people tend to be more affected by the same amount of alcohol than men and younger people who consume a similar amount of alcohol on the same balance of food and other factors.

A good rule of thumb is that your body will metabolize (e.g., eliminate) one drink per hour. If you drink three drinks within an hour, you will reach a higher BAC than if you spread them out over three hours, but either way it will take your body about three hours to metabolize those three drinks.

For DUI purposes, the question is when do you reach .08% BAC? The factors discussed here can make a considerable difference, however, generally the following is true:

Men

Women
Weighing 130-170 lbs. 3 standard drinks* Weighing less than 120 lbs. Less than 2 standard drinks*
Weighing 180-230 lbs. 4 standard drinks* 120-180 lbs. 2-3 standard drinks*
Weighing over 230 lbs. 5 standard drinks* 180-240 lbs. 3-4 standard drinks*

* See above: one standard drink is 1.25 oz. of 80 proof liquor, 12 oz. of beer, or 5 oz. of table wine—a mixed drink may be the equivalent of two drinks.

Metabolism & Tolerance
Two mistakes people tend to make that lead to DUIs are:
(1) believing that they have waited long enough since drinking to have sobered up, or
(2) believing that they have a high tolerance and therefore their driving is not impaired.

You can wait out the effects of alcohol, but sobering up may not occur as quickly as you think—or as quickly as time seems to pass after you have had a few drinks. Healthy people tend to eliminate alcohol in the body at a fairly constant rate of one average drink or 0.5 oz. (15 ml) of alcohol per hour. The rate at which the body metabolizes tends to diminish with age. Depending on liver health, people who drink regularly or drink large amounts of alcohol may metabolize the alcohol more quickly because their livers have more of the enzymes that break down alcohol.

Eating food along with drinking alcohol decreases and delays the blood alcohol concentration peak. If you have been fasting, your blood alcohol concentration will peak within 30 min. to two hours, whereas is you have been eating, your blood alcohol concentration will peak later and last longer.

Other factors:
Medications frequently affect blood alcohol concentration because they are metabolized in the liver by the same enzyme pathways that metabolize alcohol. In other words, the enzymes that would normally metabolize alcohol are otherwise occupied metabolizing medications, therefore, the alcohol stays in your system longer and the result is that you have a higher blood alcohol concentration. This is true even for over the counter medications, including acetaminophen (Tylenol). And if you take Tylenol after drinking, such as to sleep or lessen the affects of a hangover, since your liver enzymes are prioritizing breaking down alcohol, the Tylenol remains in your liver not getting metabolized and causing damage to your liver.

Fatigue generally does not directly affect blood alcohol concentration—unless they affect the amount of water in your body, such cause as dehydration—but it may increase the effects of alcohol and thus contribute to a DUI citation Even though your blood alcohol concentration is not actually higher, you may be more prone to driving erratically and being cited with a DUI than if you had not been fatigued.

Wondering what to do when the police stop you?

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This is almost word for word what I have been telling clients for years. Protect yourself when you are stopped by the Police by being very clear: “I want to speak to an Attorney”. Then, call Criminal Defense Attorney Thomas Greenberg!

Here is a link to a card that you can print off to keep with you, in case you forget what to do when stopped by the police. http://www.aclu.org/files/assets/bustcard_eng_20100630.pdf

Avoiding the dreaded DUI — Practical Tips on Protecting Your Rights & Record

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Should I take a taxi? Should I get a ride? Should I stay over? These are all great questions.

Life is complicated enough and now you have to worry about running into some random DUI checkpoint you can’t avoid. Stop right now and Google DUI checkpoints in your area. That way you can get an idea what the hot spots are for police on a Friday or Saturday night. Let us help you locate these roadblocks in advance with this DUI Checkpoint Location service as a free and helpful guide for avoiding a San Diego California DUI.

What about roving police in general? Can you trust them to do the right thing? Or will a patrol car stop you for nothing?

Depends. What time of night is it? While day partying is safer, as less cops are out, the million dollar question can later be asked: “What good things happen after midnight?”

DUI police DO stop based on mere hunch, suspicion or curiosity. But that’s illegal. Proving it, however, is another thing. Your attorney better be good or lucky.

Make sure your taillights and headlights work, your turn signals light up, your license plate is lit, your registration is current. While this takes a second person to help check, it’s worth it. That cuts down on the possible reasons cops can come up with to stop you.

Avoid speeding. Stay in the #2 lane on the freeway. Make a full stop behind every light and stop sign. You know, driving you don’t usually do. But driving you MUST do if you’re out at night after a few glasses of wine or a couple of scotches.

So what do you do if you ARE stopped?

Well, when a cop tries to stop you, stop immediately. Do so safely.

Roll down your driver’s side window. Put your arms on top of the wheel. Smile because you are now going to try to avoid getting a DUI. Don’t smirk though.

Have ready your license, registration & insurance. You will be asked for them.

What if the officer starts asking a bunch of questions. Give the same answer: Calmly, nicely but firmly say that you would absolutely love to answer the questions. BUT, you have been advised by your lawyer NOT to answer any questions as you have the right to remain silent.

In almost every state of this fine republic, you must do a breath test or a blood test if asked. If given the choice, choose urine. If no urine offered, choose a breath test. Choose a blood test if the others are not options.

Field Sobriety Tests can be declined. Be ready to politely tell Mr. DUI cop you will NOT do any of they eye, coordination or field tests.

Preliminary Alcohol or Breath Screening Test (aka a “PAS” or “PBT”) is also voluntary so don’t do it. So unless it’s a large breath instrument, you’re not agreeing. Point is, why give them evidence they’re trying to collect but not entitled by law to have?

If you follow these steps, you may not even need a lawyer. If you are arrested by the “bowling ball” rolled by a suspicious DUI cop, don’t worry – attorneys will line up to get you acquitted because the State will have a difficult time proving you guilty.

About the Author:
Rick Mueller is a Top-Rated San Diego DUI Lawyer specializing in Drunk Driving, DUI & DMV Defense, and has over 25 years of experience. Known as the “DMV Guru,” Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol.

I am an Attorney with a DUI, Felony or Misdemeanor. What are the consequences?

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What can I be disciplined for?

The State Bar, Office of the Chief Trial Counsel, is a consumer protection agency, and to that end its mission is both focused and far-reaching. Attorneys are held to a higher standard than the general public by the fact that almost any legal transgression can be grounds for professional discipline.

Under Business and Professions Code §§ 6101, 6102, the State Bar receives notice of criminal charges and convictions. Upon notification, and investigation is opened immediately, although there may be little action taken while the case is resolved in plea bargaining or trial.

The State Bar’s main inquiry into its members’ conduct is whether it constitutes moral turpitude per se, or is “other misconduct warranting discipline” in order to protect the public, the courts, and the integrity of the legal profession, and to preserve public trust in the profession. Conduct such as multiple convictions for drunk driving as is considered grounds for discipline because a serious substance abuse problem presents the public, and the attorney’s clients, with potential harm.

When can/will the State Bar discipline me?

Although an investigation may be opened promptly, there may be little action that you are aware of until the case has resulted in a conviction or plea of guilty or no contest.

What must I report?

Attorneys are required to self-report to the State Bar of California all felony charges and convictions as well as misdemeanors committed in the practice of law and some misdemeanors committed outside the practice of law. The duty to report felonies and misdemeanors includes the following: (1) the bringing of an indictment or information charging a felony, (2) a verdict of guilty, or a plea of guilty or no contest to felony charge(s), and (3) the conviction on any felony or misdemeanor that is committed in the course of the practice of law, or in a manner in which a client of the attorney was the victim, or—regardless of whether it was committed in relation to the practice of law—felonies and misdemeanors that involve “improper conduct of an attorney, including dishonesty or other moral turpitude, or an attempt or a conspiracy or solicitation of another to commit a felony or a misdemeanor of that type.”

You must report to the State Bar within 30 days of any such conviction, verdict, or plea. The State Bar has a form for reporting a criminal charge or conviction. That form is available here: http://www.calbar.ca.gov/Attorneys/MemberServices/ReportingRequirements.aspx#c3. You can also report by updating your online State Bar profile at https://www.calbar.ca.gov/Attorneys/MyStateBarProfile.aspx

In addition, Business & Professions Code 6068(o) requires attorneys to self-report to the State Bar of California:

  • An entry of judgment in a civil action for fraud, misrepresentation, breach of fiduciary duty or gross negligence committed in a professional capacity;
  • The imposition of judicial sanctions ($1,000 or more);
  • The reversal of a judgment based on misconduct, gross incompetence or willful misrepresentation;
  • If three or more lawsuits dealing with malpractice issues are filed against him or her in a 12-month period;
  • Imposition of discipline by a professional or occupational disciplinary agency or licensing board (such as Bar Associations in other states, the SEC, etc.) (Note: this includes claims against any firm in which the attorney was a partner at the time of the conduct complained of and any law corporation in which the attorney was a shareholder at the time of the conduct complained of unless the matter has already been reported by the law firm or corporation);
  • If not in possession of professional liability insurance, self-report any settlement, judgment, or arbitration award as specified by statute;
  • And, when employing a disbarred, suspended or involuntarily enrolled inactive lawyer, an attorney must comply with restrictions and inform the State Bar and clients.

The State Bar provides forms for complying with the above-described requirements, available at http://www.calbar.ca.gov/Attorneys/MemberServices/ReportingRequirements.aspx#c3. For questions, contact the Member Services Center, 1-888-800-3400.

What if I don’t report a conviction or guilty plea?

It behooves you to comply with all of the State Bar’s reporting requirements. The State Bar receives notice of criminal charges and convictions fairly immediately. The State Bar is also notified when a California-licensed attorney is placed in, returned to, or released from inpatient status at the California Rehabilitation Center or its branches, or discharged from the narcotics treatment program.

Although a criminal charge or conviction and the circumstances giving rise to such an outcome are extremely stressful, failure to report them to the State Bar within 30 days will only make matters worse: the State Bar will add a failure to report charge to its case against you.

Am I doomed if I receive a conviction?

Not necessarily—but you might be if you don’t obtain counsel or representation skilled in State Bar discipline.

The State Bar does not ignore all misdemeanors, and not all felonies result in disbarment. The State Bar prosecutes most misdemeanor cases and all felonies. The State Bar first inquiry is whether the elements of the crime constitute moral turpitude. If so, a felony crime usually results in suspension or disbarment and a misdemeanor involving moral turpitude results in an interim suspension pending the outcome of the State Bar process. Conduct not constituting moral turpitude may be considered “other conduct warranting discipline” because of its potential to put the public or the attorney’s clients at risk.

It is a good idea to ask your criminal defense attorney to consult with disciplinary counsel. The State Bar disciplinary system is quite different than criminal trial courts, and one of the biggest mistakes an attorney can make is to respond to a State Bar investigation and prosecution like a defendant in criminal court. For example, the State Bar disciplinary system is much more amenable to respondents who take responsibility for their actions than the criminal justice system is toward defendants. Attorneys often wrongly assume that it shows culpability and is disadvantageous to hire defense counsel when facing the possibility of discipline. In fact, it is almost always worth the expense because the system is so different than is often assumed, and the State Bar generally looks favorably upon attorneys hiring counsel because State Bar defense counsel tends to be efficient and dispassionate.

Finally, the State Bar Lawyer Assistance Program for attorneys who have alcohol, drug, or mental health problems that have led into disciplinary issues is a great resource. Enrollment and successful completion in LAP can greatly reduce an attorney’s suspension or other discipline.

I am a Doctor with a DUI. What Should I Do?

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The Medical Board of California is vested with the power to discipline physicians by revocation, suspension or restriction of the physician and surgeon’s medical certificate, as well as to impose various conditions and limitations on the practice of medicine. In its discretion, the Board may opt not to discipline, or to issue a public or private warning.

What convictions trigger discipline?

Criminal convictions that are “substantially related” to the qualifications, functions, or duties of a physician can trigger discipline, however, be aware that the definition of “substantially related” is broad. Felony convictions and indictments are reported to the Medical Board and thereby trigger the disciplinary process. In addition, substance-related convictions, whether felony or misdemeanor, can trigger discipline. DUIs trigger discipline, as do substance abuse and public intoxication convictions.

The Medical Board can discipline for personal use of a controlled substance and for DUIs.

The Board has the power to discipline members for drug-related felonies and misdemeanors. The Board’s disciplinary power includes the power to discipline members for prescribing or personal use of a controlled substance—or of alcoholic beverages—to the extent or in such a manner as to be dangerous or injurious to oneself, any other person, or to the public. The Board regards these actions as “unprofessional conduct.” DUI convictions and guilty pleas are regarded as conclusive evidence of “unprofessional conduct.”

Must I report a felony?

Doctors have an ongoing duty to report to the Board felony and misdemeanor convictions as well as felony indictments.

What equals conviction?

According to the Business and Professions Code, a plea of guilty or a verdict of guilty or a conviction following a plea of no lo contendere are all considered convictions, thereby giving the Board the right to take action.

At what point may the Board take disciplinary action?

The Board may take action against a member or applicant when the time for an appeal has elapsed, or the conviction has been affirmed on appeal, or if and order granting probation is made and the imposition of the sentence is suspended.

If you have been convicted or pleaded guilty, the board likely has received notice from the court but is waiting to take disciplinary action against you until the conviction rests. Boards generally look more favorably upon members who are forthcoming about their actions and attempt to cooperate with the disciplinary process—this system is different than the typical criminal defense system. Although of course you would not want to disclose prematurely in case you receive a favorable outcome in the courts and are then under no obligation to report.

What if I don’t report a conviction, guilty plea, or felony indictment?

Do report. The Board will be notified of your conviction, plea, or felony indictment. The Board looks unfavorably on doctors who do not self-report. It is a humbling experience, but in the long run it will be more in your favor than not reporting.

Am I doomed if I receive a conviction?

No. The Board reviews matters on a case-by-case basis, considering factors such as the nature of the act, harm or potential harm to the public, prior criminal and/or disciplinary history. The Board takes a conviction as conclusive evidence of unprofessional conduct, but that is not the end of the story because although you may not be able to dispute that the circumstances giving rise to the conviction occurred, the Board will likely be interested in your explanation and you’re your entire record. Furthermore, to the extent not inconsistent with public protection, the board strives to impose rehabilitative disciplinary actions.

At the same time, the board strives for consistency of discipline and instructs Administrative Law Judges hearing cases on behalf of the Board to impose the recommended discipline absent “mitigating or other appropriate circumstances such as evidence of responsibility and demonstrated willingness to undertake Board-ordered rehabilitation.” Therefore, it behooves you to self-report and, if the cause of the conviction is something that can be addressed through therapy or a substance abuse program, to enroll immediately.

Because the Board takes seriously criminal convictions and felony indictments, you would be well-advised to obtain an experienced criminal defense attorney who has your personal and professional interests at heart.