The Therapist May/June 2010
David Jensen, JD (former CAMFT Staff Attorney)
Reviewed October, 2017 by Alain Montgomery, JD (CAMFT Paralegal)

On Tuesday, February 16, 2010, the BBS issued another batch of Accusations against licensees and associates accused of committing unprofessional conduct. The BBS issues batches of Accusations several times a year, and after a while the batches tend to look similar, i.e., there is usually a case or two regarding boundary violations and a case or two resulting from a licensee’s or associate’s criminal activity.

The batch of Accusations that arrived on February 16, 2010 was unique, however. This batch contained an unprecedented number of Accusations involving the crime of driving under the influence of alcohol (“DUI”). Basically, half of the Accusations in this batch pertained to DUIs. In over nine years with CAMFT, I have never seen so many DUI cases in one batch.

So, what does this spike in DUI cases mean? It could mean law enforcement is stepping up its efforts to detect and punish drunk drivers, possibly in an attempt to raise revenue for financially-strapped municipalities, and some licensees and registrants were ensnared in this dragnet. It could mean more citizens, including therapists, are succumbing to alcohol-fueled problems, possibly because of the troubled economy. It could mean the BBS’s aggressive enforcement program, as mandated by the Department of Consumer Affairs, is bearing fruit. Obviously, some or all of these factors may be in play at the same time. Regardless of the reason(s) for the spike, getting a DUI will likely affect your license or associate registration.

Unprofessional Conduct
You may be wondering what authority gives the BBS the power to discipline a licensee or associate for conduct occurring solely in that person’s private life. When it comes to consuming alcohol, the authority is found in California Business and Professions Code §4982(c), which states in pertinent part: The BBS has the power to discipline a licensee or associate when such individual has used alcohol to the extent, or in a manner, as to be dangerous or injurious to the licensee or registrant, or to the public at large.

This section of law indicates that there is no “Great Wall of China” separating a DUI, which has occurred in one’s personal life, from the BBS’s enforcement powers, which deal usually with the person’s professional life. It really does not matter that you saw your last client yesterday and you are drinking today, or that you are drinking today and you will not be seeing any clients until tomorrow. The principle of law is this: Trouble in one’s personal life can result in trouble in one’s professional life.

“Terrible Tuesday”
Given the unprecedented number of DUI cases we received on Tuesday, February 16, 2010, that day will be sort of a “Terrible Tuesday” for all concerned. Each Accusation strongly suggests that an associate or licensee made a terrible mistake in judgment, one that will likely cost him or her much time, money, and heartache over the next few years. It is interesting to note that no one was seriously injured in any of these cases, but actual physical injury of an individual is not a prerequisite to disciplinary action by the BBS.

In terms of the underlying factual situations, these cases were all over the place:<

1. An Associate MFT is unable to control his vehicle and causes it to collide with the backend of a vehicle in front of his. Although the associate’s BAC was not reported in the Accusation, there was evidence he was driving with a blood alcohol level in excess of .08 percent when the accident occurred, and he pled nolo contendere (“no contest”) to such crime.
2. A licensee is observed by an officer weaving her vehicle in and out of lanes and almost colliding with another vehicle. Although the licensee’s BAC was not reported in the Accusation, there was evidence she was driving with a blood alcohol level in excess of .08 percent, and she pled nolo contendere to such crime.
3. A licensee is observed by a police officer driving over and on top of double yellow lines. The licensee’s BAC at the time of arrest was .17 percent, and she pled nolo contendere to the crime of driving with a blood alcohol level in excess of .08 percent.
4. A licensee collides with a parked car. The licensee’s BAC at the time of arrest was .15 percent, and she pled nolo contendere to the crime of driving with a blood alcohol level in excess of .08 percent.
5. An associate lost control of her vehicle while speeding, hit a curb, traveled up on the sidewalk, and then returned to the road. The associate’s BAC at the time of arrest was in excess of .08 percent, and she pled guilty to the crime of driving with a blood alcohol level in excess of .08 percent.
6. A licensee is unable to control his vehicle and he collides with a vehicle in front of his and the licensee then flees the scene of the accident. His BAC at the time of arrest was .17 percent, and he pled nolo contendere to the crime of driving with a blood alcohol level in excess of .08 percent.
7. A licensee was arrested for DUI after being observed driving “erratically” on the highway. His BAC at the time of arrest was .11 percent, and he pled guilty to driving
8. An associate was arrested for DUI after being observed driving “erratically” on a public road. Her BAC at the time of arrest was .16 percent, and she pled nolo contendere to driving with a blood-alcohol level in excess of .08 percent, and she was convicted of the crime of driving with a blood-alcohol level in excess of .08 percent.
9. An associate was arrested after causing an accident while driving his vehicle. His BAC at the time of his arrest was in excess of .08 percent, and he was convicted of the crime of driving with a blood alcohol level in excess of .08 percent.

From these cases it should be clear that a car’s weaving in and out of traffic lanes, driving a car erratically, driving a car on top of double yellow lines, and/or actually colliding with other vehicles, whether parked or moving, are all ways in which an intoxicated driver can call attention to himself or herself. It should also be clear that this is a problem affecting associates and licensees alike. No classification of individuals seems to be immune, unless that classification is Clean and Sober. Each practitioner must assess his or her own conduct to determine if this is an issue for him or her. Once the associate or licensee has caught the attention of law enforcement and is arrested for driving under the influence of alcohol, formal discipline by the BBS is likely to follow.

Let’s look at this problem from another angle, however. In each of the cases summarized above, the associate or licensee pled guilty, pled no contest, or was found guilty of driving with a blood-alcohol level in excess of .08 percent. But, what happens if an associate or licensee is stopped by law enforcement but is not charged with the crime of driving with a blood-alcohol level in excess of .08 percent? Can the BBS still impose discipline on the associate or licensee then?

The Watson Case!
In Watson v. Superior Court (2009) 176 Cal.App.4th 1407, a physician was disciplined for committing unprofessional conduct for driving under the influence of alcohol and being hazardous to himself and others on the road with him. What is interesting about this case is that the physician was never convicted of the crime of driving with a blood-alcohol level in excess of .08 percent. In fact, he was never even charged with committing this crime, although he was stopped on four separate occasions.

Keep in mind that Business and Professions Code §4982(c) is really not concerned with an individual’s blood-alcohol level; one’s blood alcohol level comes into play more indirectly than directly. The statute is really concerned with whether the associate’s or licensee’s use of alcohol has made such person dangerous to himself, to herself, or to others.

In Watson, the doctor argued, quite vociferously, that there was no “nexus” between his use of alcohol and the performance of his medical duties. He even offered evidence that his use of alcohol had never affected his medical practice, and this evidence was not refuted by the Medical Board. This lack of “nexus” between his personal life and his professional life was not dispositive, however. All that mattered for the Medical Board, and the Court of Appeal, which affirmed the decision of the Medical Board, was that, as a result of the doctor’s use of alcohol, he had driven “recklessly” and had in fact caused two separate accidents. These facts established the requisite degree of dangerousness to self and others from driving while under the influence of alcohol.

In reaching its decision, the Court of Appeal in Watson relied heavily on the rationale of the case of Griffiths v. Superior Court (2002) 96 Ca.App.4th 757, which is another drunk-driving/medical professional case. The Court of Appeal in Griffiths explained that “convictions involving alcohol consumption do have a logical connection to a physician’s fitness to practice medicine.”

The Court of Appeal also explained that “convictions involving alcohol consumption reflect a lack of sound professional and personal judgment that is relevant to a physician’s fitness and competence to practice medicine. Alcohol consumption quickly affects normal driving ability, and driving under the influence of alcohol threatens personal safety and places the safety of the public in jeopardy. It further shows a disregard of medical knowledge concerning the effects of alcohol on vision, reaction time, motor skills, judgment, coordination and memory, and the ability to judge speed, dimensions, and space. It also “shows an inability or unwillingness to obey the legal prohibition against drinking and driving and constitutes a serious breach of a duty owed to society.”

And, for the record, although the topic of conversation here is alcohol and driving while under the influence of it, these same principles of law are going to apply if the associate or licensee is accused of abusing controlled substances or other dangerous drugs in lieu of alcohol.

If Not for the License, Do it for Your Checkbook!<br> The California Department of Alcohol and Drug Programs estimates that a DUI will cost an individual around $6,600. This amount includes estimates for the following charges:

1. Fines/Penalties: $1,000
2. Tow/Impound fees: $215
3. DUI Treatment Program: $626
4. Court Costs: $800
5. Insurance Increase: $500-1,500
6. Attorney Fees: $2,500

In actuality, this figure is probably much too low, especially for associates and licensees, because it does not account for costs associated with addressing the BBS’s investigation and prosecution of the matter. These costs can easily be thousands of dollars, and if you read the fine print of your malpractice policy you will likely discover that such policy does not cover these sorts of expenses because they do not arise out of the professional services practitioners render. The $6,600 amount also does not include lost revenue from time spent incarcerated, attending court proceedings, or meeting with attorneys. Nor does the amount reflect lost revenue if a licensee is dismissed from insurance panels. So, the actual costs of getting a DUI may be much higher than $6,600.

Be Responsible!
Look, no one is saying that you cannot go out and have a good time, including partaking of adult beverages. Heck, that is going to happen at the CAMFT Annual Conference during the Wine and Cheese event. What we are saying is that you need to act responsibly when imbibing. Plan ahead! Use a designated driver! Spend the night in the hotel instead of driving home intoxicated! Call a cab! Call a friend! Call Uber or Lyft! Exercise good judgment!

If you think you may be abusing alcohol, please get help before such a problem adversely affects your professional life. You worked too hard to get where you are, so don’t let a few too many alcoholic drinks take from you what you have earned.