The Court’s Obligation to Squeal on Your Client: The Duty to Report a Doctor’s DUI

When a lawyer is convicted of drunk driving, judges, prosecutors and defense attorneys all have an absolute and well established duty to notify in writing both the Attorney Grievance Commission (AGC) and the Attorney Discipline Board (ADB) within 14 days of the conviction.1  There is a similar but very different obligation that the court has to notify the State Licensing Authority about a medical professional’s DUI.  This duty is set forth in Code of Criminal Procedure2 which states:

(7) Within 21 days after the date a person licensed or registered under article 15 of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838, is convicted of a misdemeanor involving the illegal delivery, possession, or use of alcohol or a controlled substance or a felony, the clerk of the court, court entering the conviction shall report the conviction to the Department of Licensing and Regulatory Affairs on a form prescribed and furnished by the Department”.

 It should be noted that the term “Health Care Professional” is broadly defined and includes but is not limited to an Acupuncturist, Allopathic Physicians (MD), Athletic Trainer, Audiologist, Dentist, Dental Hygienist and Dental Assistant, Marriage & Family Therapist, Massage Therapist, Nursing Home Administrator, Pharmacist, Social Worker, Social Service Technician and a Veterinarian and Veterinary Technician.3

 In addition to DUI there are many other crimes that may require notification by the court.  These specifically include:4

1.  A misdemeanor punishable by imprisonment for a maximum term of 2 years (never applicable to a DUI case),
2.  Possession, delivery or use of a controlled substance, or
3.  A felony,
4.  Conviction of section 520b – 520g of penal code (various types of criminal sexual conduct),
5.  Conviction of section 492a (mishandling patient charts),
6.  Conviction of misdemeanor or felony involving fraud in obtaining medical fees,
7.  Conviction of a misdemeanor that is reasonably related to or that adversely affects the license’s ability to practice in a safe and competent manner,
8.  Conviction of a violation of section 430 of penal code (misuse of title “doctor” or otherwise practicing outside scope of license), Conviction of obtaining possession or attention to obtain or possess a controlled substance or wrongfully giving same away or wrongfully prescribing same,
9.  Aiding or abetting in one of the above violations,
10.  Violation(s) of various provisions of Occupational Regulations Sections of the Michigan Public Health Code.

 A Michigan drunk driving conviction by case law comes under #7 above.  Drunk driving is not otherwise specifically enumerated in the code.

 The approved form for this use is found here.5  Few courts are aware of or are in compliance with this statute.  However, it also seems that the only way to prevent a court form notifying the court of a drunk driving conviction would be to avoid the conviction altogether.

 It should also be noted that neither defense attorneys nor prosecuting attorneys are required by law to report a medical professional’s DUI conviction.  What remains to be determined therefore is whether an attorney’s ethical duty of candor to the court would require that the court be advised of a client’s profession.

by Patrick T. Barone

 Patrick T. Barone is an adjunct professor at Cooley Law School where he teaches "Drunk Driving Law and Practice."  Mr. Barone is also the co-author of two books on DUI-related issues, including Defending Drinking Drivers (James Publishing), a well-known and highly respected multi-volume national legal treatise.  He is a frequent lecturer on trial practice and drunk driving defense tactics. He can be contacted on the web at: www.baronedefensefirm.com.


Endnotes

1.  See MCR 9.120(A).
2.  See MCL §769.16a(7)
3.  MCL §333.16101, et. seq.
4.  See MCL §333.16221
5.  http://courts.michigan.gov/Administration/SCAO/ Resources/Documents/other/Reporting%20Materials/LARA-HPR-003.pdf