For a Certified Criminal Defense Specialist Call (925) 283-1863

United States Constitution

The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states.

Penal Code Section 23

In any criminal proceeding against a person who has been issued a license to engage in a business or profession by a state agency pursuant to provisions of the Business and Professions Code or the Education Code, or the Chiropractic Initiative Act, the state agency which issued the license may voluntarily appear to furnish pertinent information, make recommendations regarding specific conditions of probation, or provide any other assistance necessary to promote the interests of justice and protect the interests of the public, or may be ordered by the court to do so, if the crime charged is substantially related to the qualifications, functions, or duties of a licensee.

Penal Code Section 23 Trammels the Constitution

The Medical Board of California through its Deputy Attorney General asks the court to invoke Penal Code section 23 to suspend the license of doctors, physicial therapists, pharmacists or any other licensed professional after their arrest but before the state has complied with its obligations under Brady and Penal Code section 1054.1 et seq.

In other words, a doctor who is arrested for a felony offense relating to billing, coding, insurance claims or any financial crime will face the following immediate attacks:

  1. Arrest at home, usually in the early morning.
  2. Office raided and searched – staff questioned.
  3. Court orders tying up bank accounts so that the business cannot run and lawyer’s cannot be paid.
  4. Demand under Penal Code section 23 to stop the doctor from practicing medicine. (Or other health professionals being stopped from working).

Penal Code section 1054.1 requires the prosecutor to turn over all exculpatory (helpful) evidence but this hearing under PC 23 usually happens before that obligation is fulfilled. (See also obligations under Brady v. Maryland)

This is not due process of law. It is a devastating shock and awe military assault.

Challenges to PC 23 in the Courts

Our medical practice group has two State of California certified Criminal Defense Specialists. In otherwords, we don’t say “We are the best defense lawyers, we specialize in criminal law.” We say, go to the State Bar of California website and locate the section managed by the Board of Legal Specialization. Find out how many criminal defense lawyers are State Bar certified as “Criminal Defense Specialists”. There are few. When we last checked there were less than 400.

To be a specialist you pass peer review, judicial review, a complex examination, have extensive experience and must take extra continuing education. Daniel Horowitz has been a criminal defense specialist for over 30 years. He teaches prospective specialists, preparing them for the specialist examination. Daniel has taken over 200 cases to jury trial.

When you are under investigation or if you have been arrested and are facing asset seizure and license restriction without due process of law – Daniel Horowitz knows this area and will defend you.

The published legal cases in California do not leave a physician defenseless. In the case titled Fort v. Board of Medical Quality Assurance  the court stated that “the state may not deprive a person of life, liberty, or property without due process of law. (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7.) *637 “Due process requires that before one … is disciplined by deprival or abridgement of the right to engage in his business or profession, he be given reasonable notice of the charges against him, notice of the time and place of a hearing, and thereafter a fair hearing on the charges. [Citations.]” (Fort v. Board of Medical Quality Assurance (1982) 136 Cal.App.3d 12, 23, 185 Cal.Rptr. 836.)

In Smith v. Board of Medical Quality Assurance (1988) 202 Cal.App.3d 316, 326–329, 248 Cal.Rptr. 704 (Smith ), the court analyzed both federal and state due process requirements in a case involving the former Board of Medical Quality Assurance, now known as the Division of Medical Quality of the Medical Board. (See Kees v. Medical Board of California (1992) 7 Cal.App.4th 1801, 1804, fn. 2, 10 Cal.Rptr.2d 112; Bus. & Prof.Code, § 2003.) “Under federal constitutional analysis, [one] must first establish that the due process clause applies by showing a protected liberty or property interest.” (Smith, supra, 202 Cal.App.3d at p. 326, 248 Cal.Rptr. 704.) “Unquestionably, a physician has a vested property right in his or her medical license, once acquired.” (Ibid., citing Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 396, 188 Cal.Rptr. 891, 657 P.2d 383.) “Until a formal accusation is filed against a physician, his or her license is valid. [Citations.] Once an accusation is filed, the physician enjoys the protection of a full range of due process rights. [Citations.]” (Smith, supra, 202 Cal.App.3d at p. 326, 248 Cal.Rptr. 704.)

The above two cites are from Gray v. Superior Court (2005) 125 Cal.App.4th 629, 636–637 [23 Cal.Rptr.3d 50, 54].

Hire the Best Medical Defense Lawyers

Daniel Horowitz is a veteran of over 200 jury trials. Daniel Russo has over 300. Former top prosecutor Tom Kensok is close to 100. These are not little cases. We are a group that has handled some of the largest and most complex medical fraud, murder, money laundering and other high level state and federal cases through trial.

No ethical attorney will guarantee victory. We do guarantee that we will assemble a team of top attorneys who are genuinely sympathetic to your situation. We fight hard and we care. In cases involving medical issues, we include Dr. Mark Ravis as a member of our legal team. Dr. Ravis is dual licensed as both a doctor and lawyer. Both licenses are active.

Time is generally not your friend in criminal cases. Call our office at (925) 283-1863. A “live person” will answer (during business hours). This person is a real member of our staff on site. You may speak with confidentiality on that call.