Medical Board of California v. Superior Court of City and County of San Francisco (Jan. 8, 2018, A151175) __ Cal.App.5th __ [2018 WL 316557]
The Medical Board filed an accusation against Dr. Brandon Erdle, who had been arrested for cocaine possession and then successfully completed a pretrial diversion program. The administrative law judge (ALJ) excluded Dr. Erdle’s arrest records and prohibited the arresting officer from refreshing his recollection with them while testifying. (Under Penal Code section 1000.4, an arrest is deemed not to have occurred if a diversion program is completed.) But the ALJ allowed the arresting officer to testify, and ultimately recommended that the Board publicly reprove Dr. Erdle and reinstate his license on a probationary basis. Dr. Erdle filed a petition for writ of administrative mandate, which the superior court granted. The Board then sought writ relief in the Court of Appeal.
The Court of Appeal granted the Board’s writ petition in a published opinion, holding that Business and Professions Code section 492 created a “blanket exception” to Penal Code section 1000.4’s restrictions regarding the use of arrest records. Section 492 permits “healing arts agencies” to take disciplinary action against licensees for professional misconduct “[n]otwithstanding any other provision of law, successful completion of any diversion program,” or evidence “that misconduct may be recorded in a record pertaining to an arrest.” The court explained that section 492 was “more recent and more specific” than section 1000.4, and that section 492’s legislative history supported a broad construction of the statute. Furthermore, the court reasoned that adopting a blanket exception furthered public safety concerns specific to the healing arts licensees covered by section 492. Accordingly, because the trial court implicitly found that the officer’s testimony would have supported the disciplinary action, and this finding was supported by substantial evidence, the Court of Appeal upheld the Board’s disciplinary action.
Prepared by H. Thomas Watson and Peder K. Batalden, Horvitz & Levy, LLP
California Society for Healthcare Attorneys
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