Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 30-2009-00124958 Frederick P. Horn, Judge.
Iungerich & Spackman and Russell Iungerich for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Thomas S. Lazar, Carlos Ramirez, and Harinder K. Kapur, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Paul Frances Reardon, M.D., appeals from the court’s order compelling him to comply with an investigational subpoena of the Medical Board of California (the Board), a unit of the Department of Consumer Affairs (Bus. & Prof. Code, § 101, subd. (b)), whose acting director is plaintiff Patricia Harris. The Board seeks to interview Reardon about his possession of less than an ounce of marijuana on November 13, 2007. We affirm.
The order is appealable under Code of Civil Procedure section 904.1, subdivision (a)(1). (State ex rel. Dept. of Pesticide Regulation v. Pet Food Express (2008) 165 Cal.App.4th 841, 849.)
The facts are drawn from Harris’s June 2009 petition for a court order compelling Reardon to comply with the Board’s subpoena, as well as from exhibits attached to the petition. Reardon disputes factual allegations in the police report, such as the officer’s assertion he smelled marijuana upon opening the door of Reardon’s vehicle.
On the night of November 13, 2007, the police received a report about “a reckless driver.” By running a records check on the vehicle’s license plate, the police associated it with Reardon’s home address. An officer went to Reardon’s home and asked him to explain his driving behavior. Reardon said he “must have veered out of his lane” while “paying attention” to his two children in the back seat. Reardon consented to a search of his vehicle. The officer opened the vehicle’s door and “immediately smelled a strong odor of marijuana.” The officer told Reardon to retrieve the marijuana. Reardon reached in the front passenger seat’s rear pocket and took out a bag containing “16.36 grams of marijuana, zig zag papers, a joint and a smoked joint.” Reardon stated he did not have a medical marijuana prescription. The officer cited Reardon for possession of less than one ounce of marijuana under Health & Safety Code section 11357, subdivision (b).
In January 2008, a court ordered Reardon to complete an eight hour drug diversion program. In February 2008, Reardon filed proof of his successful completion of the drug program. The court dismissed the marijuana possession charge.
In August 2008, the Board received a report of the incident. The Board’s investigator tried to interview Reardon about his marijuana possession and “related issues” to see if he had violated section 2238, under which a physician’s violation of a statute regulating controlled substances is unprofessional conduct.
Reardon refused to be interviewed. The Board then issued a subpoena compelling him to appear before its investigator and provide testimony on an appointed date. Reardon’s counsel acknowledged receipt of the subpoena, but Reardon did not comply with the subpoena and failed to appear for the interview.
In June 2009, Harris petitioned the court for an order compelling Reardon to comply with the Board’s subpoena. (The petition is referred to in this opinion as the Board’s petition.) Attached to the Board’s petition was a declaration of the Board’s investigator stating she needs “to interview Dr. Reardon regarding his possession of marijuana and related issues to determine if he” has violated section 2238 by infringing any state or federal statute or regulation “regulating dangerous drugs or controlled substances.”
The court granted the Board’s petition.
DISCUSSION
Reardon contends: (1) the Board’s subpoena “does not satisfy established constitutional and legal standards for its issuance, lacks probable cause for issuance, and violates his right to privacy, ” and (2) the subpoena “is overbroad in that it permits inquiry about ‘related issues’ without limitation.”
Government Code section 11180 et seq. empowers government departments (such as the Board) to subpoena a witness to testify in any investigation of “matters relating to the business activities and subjects under the jurisdiction of the department.” (Gov. Code, §§ 11180, subd. (a), 11181, subd. (e).) The Board’s jurisdiction encompasses the licensing and discipline of physicians “as an exercise of the police power.” (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 7 (Arnett).) In order to protect the public from impaired physicians, the Board may “revoke medical licenses on grounds of unprofessional conduct.” (Ibid.)
References to “physicians” in this opinion includes physicians and surgeons.
If a witness refuses to obey the Board’s subpoena, the Board may petition the court for an order compelling the witness to do so. (Gov. Code, § 11187, subd. (a).) Under Government Code section 11188, the witness must then appear before the court and show cause why he or she has not testified. The court must order the witness to comply with the subpoena if it appears the subpoena was “regularly issued.” (Ibid.)
At the order to show cause hearing under section 11188, the court “determin[es] whether the subpoena conforms to legal and constitutional standards.” (Fielder v. Berkeley Properties Co. (1972) 23 Cal.App.3d 30, 39 (Fielder).) “With respect to the legal standards the inquiry... is whether the subpoena ‘was regularly issued, ’” i.e., whether it was issued “in accordance with... sections 11180, 11181, 11182, 11184 and 11185 of the Government Code providing for the matters which may be investigated, the acts authorized in connection with investigations, and the service of process.” (Id. at p. 39.) With respect to constitutional standards, the privilege against self-incrimination is inapplicable at a Government Code section 11188 hearing. (Fielder, at p. 39.) “Such privilege cannot be urged by the witness until a question is put to him after being sworn, the answer to which would have the tendency to incriminate him.” (Ibid.) “With respect to the prohibition against unreasonable searches and seizures the scope of the [court’s inquiry] is limited to ascertaining that the demand of the subpoena is not too indefinite and that the information sought be reasonably relevant to the intended investigation.” (Id. at p. 40.)
“We review de novo the question whether the subpoena meets the standards for enforcement.” (State ex rel. Dept. of Pesticide Regulation v. Pet Food Express, supra, 165 Cal.App.4th at p. 854.) Because the subpoena’s enforceability depends, at least in part, on whether its demand “is not too indefinite” (Fielder, supra, 23 Cal.App.3d at p. 40), we address first whether the subpoena in this case is overbroad. We then proceed to Reardon’s alternative argument that the subpoena does not satisfy legal and constitutional standards.
The Subpoena is Not Overbroad
The subpoena commands Reardon “to testify and answer questions propounded... in connection with the above titled investigation.” The subpoena itself does not describe the investigation (or its parameters) other than by specifying Reardon’s name and assigned case number. The declaration of the Board’s investigator, however, does describe the scope of the investigation.
Reardon challenges the language of the declaration, not the subpoena itself.
Reardon challenges as overbroad the investigator’s declaration she needs to interview him “‘regarding his possession of marijuana and related issues....’” He contends these “‘related issues’ are unspecified, unnecessarily vague, and permit[] much more than an interview about the... arrest for possession of a small quantity of marijuana.”
The language of the declaration, however, limits the scope of the interview to issues relevant to whether Reardon has violated section 2238, i.e., whether he has committed unprofessional conduct by violating a statute or regulation regulating dangerous drugs or controlled substances. This inquiry is clearly within the Board’s jurisdiction. (§ 2220, subd. (a) [Board may investigate complaints physician “may be guilty of unprofessional conduct”].) Government Code section 11180 empowers the Board “to gather information that is ‘not plainly incompetent or irrelevant to’ those purposes.” (Younger v. Jensen (1980) 26 Cal.3d 397, 406.) The declaration describes the breadth of the investigation with sufficient particularity. (See Craib v. Bulmash (1989) 49 Cal.3d 475, 478 (Craib) [“records need only be relevant to an authorized regulatory purpose and described with reasonable specificity”].) The subpoena is not overbroad.
The Subpoena Was Properly Issued and Does Not Violate Reardon’s Right to Privacy
Reardon contends the Board’s subpoena fails to satisfy constitutional and legal standards, lacks probable cause for its issuance, and violates his right to privacy under the California Constitution. He argues the purpose of the interview is to conduct “a ‘fishing expedition’ into [his] personal life....’” He asserts the investigator already knows all the facts in this case. He concludes the Board “seeks to make simple possession of less than 28.5 grams of marijuana a more serious offense than it is under the... Penal Code.” He contends the public does not require protection from a physician who has been accused (but never convicted) of such a “low level criminal offense.”
The Board has the power and the responsibility to investigate complaints of unprofessional conduct. (Arnett, supra, 14 Cal.4th at p. 7.) A physician’s use of a controlled substance “to the extent, or in such a manner as to be dangerous or injurious to the [physician], or to any other person or to the public, or to the extent that such use impairs the ability of the [physician] to practice medicine safely... constitutes unprofessional conduct.” (§ 2239, subd. (a).) Marijuana is a controlled substance. (Health & Saf. Code, §§ 11007, 11054, subd. (d)(13).) Furthermore, a physician’s violation of a statute regulating “controlled substances constitutes unprofessional conduct.” (§ 2238.) Reardon was cited and entered a diversion program for violation of Health and Safety Code section 11357, subdivision (b), under which the unlawful possession of less than 28.5 grams of marijuana is a misdemeanor.
Under the definitions set forth in Fielder, the Board’s subpoena meets the legal and constitutional standards for its issuance. (Fielder, supra, 23 Cal.App.3d at pp. 39-40.) Because the subpoena involves a subject matter within the Board’s jurisdiction and requires a witness to testify in an authorized investigation, the subpoena meets the legal standards set forth in Government Code sections 11180 and 11181, respectively, and was therefore “‘regularly issued’” by the Board. (Fielder, at p. 39.) And because the subpoena is not overbroad, it does not violate Reardon’s right against unreasonable searches and seizures. (Id. at p. 40.)
But Reardon contends the subpoena violates, without good cause, his privacy right under the California Constitution. He relies on Bearman v. Superior Court (2004) 117 Cal.App.4th 463, where the Board sought to investigate whether a physician had improperly prescribed medical marijuana to a particular patient. (Id. at p. 468.) The patient refused to release his medical records to the Board, “stating it would violate his right of privacy.” (Ibid.) The Board then subpoenaed the physician for the patient’s medical records. (Id. at p. 466.) The physician “refused to comply, stating that to release [the] records against his patient’s wishes would be a breach of physician-patient confidentiality and that the Medical Board had not shown good cause for invading such confidentiality.” (Id. at p. 468.) The trial court granted the Board’s petition to compel the physician to comply with the subpoena. (Ibid.) The physician petitioned the appellate court for a writ vacating the trial court’s order. (Ibid.) The Court of Appeal granted the physician’s petition “[b]ecause the Medical Board failed to demonstrate sufficient facts to support a finding of good cause to invade the patient’s right of privacy.” (Id. at p. 466, italics added.) The Court of Appeal explained that, because a patient has a right of privacy under the California Constitution, the Board may not “delve into an area of reasonably expected privacy” (id. at p. 468) by subpoenaing the patient’s medical records from a doctor unless the Board can show good cause, i.e., that the records are “relevant and material” to the Board’s inquiry. (Id. at p. 469.)
Bearman does not support Reardon’s privacy claim. Bearman involves a patient’s privacy right. Patients have a reasonable expectation of privacy in their personal medical records. They are not subject to the Board’s licensing and disciplinary powers. Moreover, the subpoena here seeks information relevant to the Board’s inquiry into whether Reardon committed unprofessional conduct.
We have not found, nor have the parties directed us to, any cases discussing the privacy rights of witnesses subpoenaed pursuant to Government Code section 11181. But on an analogous issue our Supreme Court has held that, with respect to Government Code section 11181 subpoenas for the production of records, “there is no reasonable expectation of privacy against judicially compelled disclosure of records required to be kept, and subject to administrative subpena, under a lawful regulatory scheme.” (Craib, supra, 49 Cal.3d at p. 478.) Similarly, physicians who choose to practice medicine in California are subject to licensing requirements and standards of professional conduct under a lawful regulatory scheme, and, by analogy, have no reasonable expectation of privacy concerning their adherence to these requirements and standards.
Finally, Reardon argues his private conduct cannot serve as the basis for discipline or investigation unless it has affected his performance as a physician. This argument raises a question that has been asked and answered by several appellate courts: May the Legislature constitutionally determine that a physician’s private acts constitute unprofessional conduct demonstrating unfitness to practice medicine, even if the conduct has at no time actually impaired the physician’s professional competence? At least three appellate courts have concluded that the Legislature’s determination is constitutional so long as the conduct described in the statute “is logically connected to a physician’s fitness to practice medicine.” (Watson v. Superior Court (2009) 176 Cal.App.4th 1407, 1421; see also Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 770 (Griffiths), Weissbuch v. Board of Medical Examiners (1974) 41 Cal.App.3d 924, 929.) This logical connection provides the nexus necessary “to satisfy constitutional due process.” (Watson, at pp. 1416, 1421.)
In Griffiths, the appellate court found that a logical connection exists between alcohol abuse and a physician’s professional competence. (Griffiths, supra, 96 Cal.App.4th at p. 770.) Griffiths stated: “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 distance. [Citation.] [¶] Driving while under the influence of alcohol 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.” (Ibid.)
Here, the Board seeks, inter alia, to investigate whether Reardon drove under the influence of marijuana. Under section 2239, subdivision (a), a physician’s use of any controlled substance “to the extent, or in such a manner as to be dangerous or injurious to the [physician], or to any other person or to the public... constitutes unprofessional conduct.” Marijuana is a controlled substance listed as a hallucinogenic agent. (Health & Saf. Code, §§ 11007, 11054, subd. (d)(13).) The Legislature has determined that marijuana use affects a person’s ability to drive, as shown by Vehicle Code section 13202, subdivision (b), under which a person’s driving privilege may be revoked upon conviction of possessing marijuana, “when a motor vehicle was involved in, or incidental to, the commission of such offense.” Even medical marijuana may not be smoked by a patient “in a motor vehicle that is being operated.” (Health & Saf. Code, § 11362.79, subd. (d).) A logical connection exists between a physician’s competence to practice medicine and his or her unauthorized possession of marijuana, particularly in a vehicle. Such possession shows a lack of judgment, a breach of a duty to the public, and an inability or unwillingness to obey the law. Reardon emphasizes that he was never convicted of the marijuana offense. But section 2239, subdivision (a), does not predicate unprofessional conduct on a conviction. Furthermore, the Board may investigate complaints of unprofessional conduct (§ 2220, subd. (a)), even if no formal accusation against the physician is on file or no formal hearing is pending (Arnett, supra, 14 Cal.4th at p. 8).
Reardon relies on the lone outlier on the issue of whether a physician may be disciplined for private conduct absent evidence it actually impaired his or her medical practice. Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551 stated that a physician may be disciplined for private conduct only to the extent that it “makes the licensee unfit to practice his profession....” (Grannis, at p. 562.) Grannis examined the record for evidence showing that, “in fact, [the physician’s] use of alcoholic beverages was dangerous to the public.” (Watson, supra, 176 Cal.App.4th at p. 1422.) Grannis concluded that substantial evidence did support the Board’s disciplinary action against the physician, even though his alcoholism never actually “impaired his professional competency” (Grannis, at p. 556), because his alcoholism had “a direct relationship to good judgment, which in turn would have a direct relationship” on the quality of patient care he could render “if he had any alcohol whatsoever” (id. at p. 563). Similarly, in Reardon’s case, marijuana use can affect a physician’s judgment and quality of patient care. Indeed, although Reardon tries to trivialize the severity of a Health and Safety Code section 11357, subdivision (b) offense, because it involves possession of less than an ounce of marijuana, the evidence suggests he drove recklessly and veered out of his lane on the highway. And unlike Grannis, Watson, Griffiths, and Weissbuch, which all involved the Board’s revocation of a physician’s license, here the Board is at a preliminary investigational stage trying to determine whether a problem exists. (Grannis v. Board of Medical Examiners, supra, 19 Cal.App.3d at p. 554; Watson, supra, 176 Cal.App.4th at p. 1412; Griffiths, supra, 96 Cal.App.4th at p. 767; and Weissbuch v. Board of Medical Examiners, supra, 41 Cal.App.3d at pp. 926-927.) Grannis does not support Reardon’s claim the Board may not constitutionally investigate his possible use of marijuana.
Watson, supra, 176 Cal.App.4th at pages 1421-1422 criticizes Grannis, pointing out internal inconsistencies and a lack of analysis on the issue of whether the Legislature’s determination of unprofessional conduct satisfies the nexus requirement.
DISPOSITION
The judgment is affirmed. The Board shall recover its costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.
All statutory references are to the Business and Professions Code unless otherwise stated.