This is an appeal from the judgment in a mandamus proceeding affirming an order of respondent, Board of Medical Examiners (hereinafter Board) revoking the certificate of petitioner, Dr. Grannis, to practice medicine, and from an order quashing his subpoena duces tecum.
On the appeal from the judgment, Dr. Grannis contends that: 1) a judgment entered on a plea of nolo contendere is not a conviction within Business and Professions Code section 2390; 2) the portion of Business and Professions Code section 2390 prohibiting the dangerous use of alcoholic beverages is not a valid and constitutional exercise of the police power; 3) he was not guilty of unprofessional conduct and, therefore, not subject to the disciplinary action of the Board; and 4) the Board abused its discretion and exceeded its jurisdiction as to the penalty imposed. On the appeal from the order granting the motion to quash the subpoena duces tecum, Dr. Grannis argues that the court abused its discretion in granting the motion.
The record reveals the following: In 1968, the Board, pursuant to Business and Professions Code section 2361,
At 2 a.m. on August 2, 1966, the Palo Alto police observed Dr. Grannis driving his automobile without lights and weaving from lane to lane in Palo Alto. After he had been stopped, the arresting officers noticed his eyes were red, watery and bloodshot and his complexion was flushed and shiny. He was subjected to three field sobriety tests but was able to perform only the first one fairly well. In the opinion of the arresting officers, Dr. Grannis' ability to safely operate a motor vehicle was substantially impaired. His blood alcohol level was determined to be .20 percent, the equivalent of 10 bottles of beer or 10 shots of whiskey. On October 19, 1966, Dr. Grannis was convicted on a plea of nolo contendere of a violation of Vehicle Code section 23102 arising out of the August 2, 1966 arrest. Subsequently, on June 18, 1968, pursuant to motions under Penal Code sections 1203.3 and 1203.4, the court permitted withdrawal of the nolo contendere plea and the entry of a plea of not guilty, and dismissed the complaint.
About 7:30 p.m. on January 15, 1967, a California Highway Patrol officer observed Dr. Grannis' vehicle headed east on the San Francisco freeway, making an abrupt lane change and then swerving down the off-ramp onto Bryant Street. He was forced over to the curb by the patrol car after failing to respond to successive use by the officers of the red light, horn and siren, and failed several field sobriety tests. Although Dr. Grannis was headed east toward the Bayshore, the doctor told the officers he had left from Seventh or Eighth and Market Streets for his home in Palo Alto, which was located in a different direction. In the opinion of the arresting officer, Dr. Grannis' ability to safely operate a motor vehicle was substantially impaired. His blood alcohol level on this occasion was .221 percent, a level at which an expert indicated that 93 percent of drivers were "grossly drunk." On April 18, 1967, Dr. Grannis was convicted on a plea of guilty of a violation of Vehicle Code section 23102, arising out of the January 15 arrest.
At the administrative hearing, Dr. Grannis' witness, his psychiatrist, Dr. Rose, who had seen Dr. Grannis weekly since March 1968, testified that Dr. Grannis was an alcoholic. Dr. Rose's definition of an alcoholic is a person who, with relatively minute quantities of alcohol, suffers an impairment of his neurophysiological system so he loses contact with the changes that are taking place in his personality and his ability to judge any impairment
Dr. Rose then indicated that Dr. Grannis' drinking began with a depression after the death of his brother in 1966. Dr. Rose told Dr. Grannis he could not afford to drink at any time and did not think that the three occasions on which Dr. Grannis had consumed alcohol since 1968 were regressions. Dr. Grannis was making better progress than Dr. Rose's other alcoholic patients and his prognosis was excellent.
On cross-examination, Dr. Rose was asked: "Q. Now, this impairment of or gradually lessening of anxiety, which is heightened in an alcoholic, this in turn has a direct relationship to what we call good judgment? A. Yes, it does. Q. And that in turn, the lack of good judgment, would have a definite relationship to the quality of patient care which Dr. Grannis could give a patient if he had had any alcohol whatsoever? A. That is correct."
The hearing officer found that: both counts of disciplinary action had been established; Dr. Grannis was certified by the American Board of Orthopedic Surgeons, is a good and very conscientious practitioner, and enjoys an excellent reputation in his field; and that Dr. Grannis had established that at no time has his alcoholism impaired his professional competency. The Board adopted the hearing officer's decision as its own as to each count, revoked Dr. Grannis' license, but stayed the revocation and put the doctor on probation for a period of five years on the terms and conditions more fully set forth in the footnote below.
The trial court found that on October 19, 1966, Dr. Grannis was convicted on a plea of nolo contendere of a violation of Vehicle Code section 23102 in the Municipal Court of the City of Palo Alto; on June 18, 1968, pursuant to Penal Code sections 1203.3 and 1203.4, a plea of not guilty was entered and the matter dismissed. On April 18, 1967, Dr. Grannis was convicted of another violation of Vehicle Code section 23102 in the Municipal Court of San Francisco. On August 2, 1966, and January 15, 1967, Dr. Grannis used alcoholic beverages to the extent that they were dangerous to him and other persons and to the public.
The court also found that Dr. Grannis began to drink after the death of
The trial court then concluded that: 1) a plea of nolo contendere is a conviction within Business and Professions Code section 2390 and the subsequent dismissal of that conviction pursuant to Penal Code section 1203.3 and section 1203.4 did not prevent the Board from relying on the conviction in an administration disciplinary proceeding pursuant to Business and Professions Code section 2390; 2) the convictions on October 19, 1966, and April 18, 1967, and the two acts on August 2, 1966, and January 15, 1967, constitute grounds for a disciplinary proceeding; 3) Business and Professions Code section 2390 is constitutional as a valid exercise of the police power; and 4) the Board did not proceed in excess of its jurisdiction or abuse its discretion or act arbitrarily in suspending Dr. Grannis' license for a period of five years, with conditions of probation.
"The majority view is typified by the decision of the Missouri Supreme Court in Neibling v. Terry, 352 Mo. 396 [177 S.W.2d 502, 152 A.L.R. 249]. In that case the court explained that the confusion generated by the effect of the nolo contendere plea stems from the erroneous judicial practice of clothing the judgment of conviction with the characteristics of the plea. The court held that the fact of conviction is distinct from the plea because only the plea carries the evidentiary force of an admission. The court therefore concluded that a defendant cannot prevent the judgment of conviction from being used as a basis for applying an administrative penalty.
"The minority position is that any use of the nolo contendere plea or the conviction outside of the criminal case constitutes an admission of guilt.
"Two California cases adopted the minority view prior to the enactment of Penal Code section 1016 subdivision 3. In Caminetti v. Imperial Mut. Life Ins. Co., 59 Cal.App.2d 476, 489 [39 P.2d 681], the officers of an insurance company entered a nolo contendere plea and were convicted in a federal court of a charge of defrauding the United States. The California Insurance Code authorized a conservator to seize any insurance company found to be in a condition hazardous to the investing public or creditors. The Insurance Commissioner attempted to introduce the federal conviction as conclusive evidence of fraud warranting the seizure of the company's assets. The court refused to permit the conviction to be used as an admission of fraud since it was based on the nolo contendere plea. The court characterized the nolo contendere plea as being an agreement between the defendant and the court `solely and alone and for the purpose of that case and for no other purpose.' (P. 492.) In the case of In re Hallinan, 43 Cal.2d 243 [272 P.2d 768], the Supreme Court approved a State Bar ruling that disbarment proceedings could not be instituted against lawyers convicted of a felony following a nolo contendere plea entered in a federal court. The court stated (p. 247): `In view of Caminetti v. Imperial Mut. L. Ins. Co. ... holding that a plea of nolo contendere is not the equivalent of a plea of guilty and cannot be used in another proceeding as an admission against the person so pleading, the State Bar was justified in concluding that such a plea was not the equivalent of a "plea or verdict of guilty" within the meaning of section 6101 of the Business and Professions Code.'
"Subsequent to the Hallinan decision, the California Legislature amended a number of statutes in the Business and Professions Code to insure that convictions following the entry of a nolo contendere plea could provide the basis for an administrative penalty (e.g., § 6101 [attorneys]; § 1679 [dentists]; § 4354 [pharmacists]; § 5106 [accountants]; § 10100 [real estate brokers]; § 2765 [nurses]; § 4883 [veterinarians]; § 2688 [physical therapists]). The legislative action was selective, however, and a number of statutes were not amended to provide for nolo contendere convictions. Included in this category is section 24200 subdivision (d). Can it be inferred from this omission that the Legislature intended to exclude convictions following nolo contendere pleas from the coverage of section 24200 subdivision (d)?
The identical reasoning applies here to the Legislature's failure to specifically amend Business and Professions Code section 2390. Significantly, this section
In the instant case, as in Kirby, the Board relies upon Christensen v. Orr, 275 Cal.App.2d 12 [79 Cal.Rptr. 656], to support its position that the nolo contendere plea entered by Dr. Grannis comes within Business and Professions Code section 2390. The court in Kirby, in distinguishing Christensen, stated at page 221: "In Christensen it was held that a plea of nolo contendere was a conviction within the meaning of Vehicle Code section 13352 subdivision (b) despite the limitations placed upon the use of a plea of nolo contendere by Penal Code secton 1016(3). The court stated (p.
Likewise here, as pointed out in Kirby, there is an important distinction between section 2390 and Vehicle Code section 13352 construed in Christensen. In either suspending or revoking a driver's license, the Department of Motor Vehicles carries out a mandatory ministerial function that involves only paper work, while an administrative hearing that must be conducted pursuant to the requirements of the Government Code necessitates the exercise of discretion by the Board and is quasi-judicial in nature.
In Yakov, the court noted that the purpose of an action seeking revocation of a doctor's certificate is not to punish the doctor but to protect the public, and said at page 73, footnote 6: "While revocation of a certificate certainly works an unavoidable punitive effect, the board can seek to achieve a legitimate punitive purpose only through criminal prosecution. Thus, in this proceeding the inquiry must be limited to the effect of Dr. Yakov's actions upon the quality of his service to his patients." The court also noted at page 75: "The right to practice one's profession is sufficiently precious to surround it with a panoply of legal protection."
The above language from Yakov was reemphasized in Morrison, supra, where the court applied the same reasoning to the attempted revocation of a teaching diploma pursuant to Education Code section 13202 based on conduct in the teacher's personal life that the Board of Education had found to be immoral, unprofessional and to involve moral turpitude. The court also noted that the power of the state to regulate professions and conditions of government employment must not arbitrarily impair the right of the individual to live his private life
Here, language of the second clause of the statute "use of alcoholic beverages to the extent dangerous to himself, to any person and to the
The People concede the holdings of Morrison and Yakov but argue that these cases are not applicable here as they dealt with the interpretation of a vague general term such as moral turpitude, unprofessional conduct or immorality, while in Business and Professions Code section 2390, the Legislature has enumerated specific acts that it deems to be "unprofessional conduct," constituting grounds for disciplinary proceedings pursuant to Business and Professions Code section 2361.
We cannot agree that only general statutes require reasonable relationships between the conduct charged and the particular profession.
The only evidence in the record relating to the question of whether Dr. Grannis' drinking problem had any effect on his professional service to the public was the uncontroverted testimony of Dr. Rose. Dr. Rose indicated and the trial found that Dr. Grannis was an alcoholic, a term Dr. Rose defined as a person who, with relatively minute quantities of alcohol, suffers an impairment of his neurophysiological system that causes him to lose contact with the changes that are taking place in his personality and his ability to judge any impairment that takes place in his thinking or motor function. On cross-examination, Dr. Rose testified that the gradual lessening of anxiety is heightened in an alcoholic and has a direct relationship to good judgment, which in turn would have a direct relationship to the quality of patient care that Dr. Grannis could give a patient if he had any alcohol whatsoever. We conclude that this uncontroverted evidence is sufficient to sustain the disciplinary action under the second count of the accusation.
Under the circumstances here presented, the good cause requirements of Code of Civil Procedure section 1985 are governed by the liberal standards of Code of Civil Procedure section 2031 (Shively v. Stewart, 65 Cal.2d 475, 481 [55 Cal.Rptr. 217, 421 P.2d 65, 28 A.L.R.3d 1431]), the objective of which is not merely the discovery of admissible evidence but also effective preparation for trial (Associated Brewers Distr. Co. v. Superior Court, 65 Cal.2d 583, 587 [55 Cal.Rptr. 772, 422 P.2d 332]). However, here, unlike the situation in Kenney, the exact matters or things desired to be produced were not specified. The principal reason for the specificity requirement is to adequately apprise the custodian of what records are desired and the requested identification may be defeated by generality of description (Flora Crane Service, Inc. v. Superior Court, 234 Cal.App.2d 767, 786-787 [45 Cal.Rptr. 79]).
Again, relying on Kenney, supra, and Harris v. Alcoholic Bev. etc. Appeals Bd., 62 Cal.2d 589 [43 Cal.Rptr. 633, 400 P.2d 745], Dr. Grannis contends that records of other disciplinary proceedings are relevant and that it would be unrealistic to require him to first exhaust all discovery procedures to determine in what similar proceedings the Board took similar action. As noted above, however, Kenney involved the specific records relating to the defendant doctor; in Harris, the court held that judicial notice could be taken of a bulletin from the Director of the Department to his administrators indicating that the schedule of penalties might not be followed for similar violations where aggravating or mitigating circumstances were present. The law permits judicial notice to be taken of public and private official acts of the executive department of the state.
In the instant case, no specific prior decisions of the Board are sought and the affidavit indicates that the affiant does not know of the nature of the penalties "if any" imposed, and would require the Board to conduct a burdensome blanket search of its records. Furthermore, there is no requirement that charges similar in nature must result in identical penalties (Coleman v. Harris, 218 Cal.App.2d 401 [32 Cal.Rptr. 486]). Nor is the
Accordingly, we conclude that the trial court did not abuse its discretion in granting the Board's motion to quash the subpoena and the order of May 26, 1970, is affirmed.
The judgment is modified as to the first count of the accusation in accordance with the views expressed herein, and in all other respects affirmed. Respondent to recover costs on appeal.
Shoemaker, P.J., and Kane, J., concurred.
Petitions for a rehearing were denied September 23, 1971, and the petitions of the appellant and the respondent for a hearing by the Supreme Court were denied October 21, 1971. Peters, J., was of the opinion that the petitions should be granted.