In seeking to defend a criminal case or a professional or occupational license matter, the initial step is to evaluate the degree to which the allegations can be established. There are vastly different standards of proof for the prosecution in criminal and administrative law cases. In that regard, it is far easier for the prosecution attorney in a licensing case to prevail than his/her counterpart in a criminal case, where there must be evidence beyond a reasonable doubt to prevail.
Nonetheless, the role of the defense lawyer, among other things, is to refute, contradict, disprove, deny or otherwise challenge the charges, allegations, inferences and/or conclusions therein that are obvious or not apparent. Similarly, in marginalizing the accusations, facts and circumstances as well as evidence to be produced by the prosecution, there can be a substantial impact upon the outcome or results of the case. In addition, there can be unintended consequences in which the defense lawyer has an opportunity to not only develop and present a defense, but also craft a compelling offense.
I have worked the last forty (40) years as a defense lawyer, previously having worked thru a portion of 1978 as a Deputy Attorney General for the Department of Justice, State of California. Being hired in 1970, I then began prosecuting a very large number of criminal appeals and writing countless Respondent’s Briefs and opposing criminal Writs in every level of Court in California through to the State Supreme Court, and every level of Federal Court including the U.S. Supreme Court. In addition, I prosecuted an infinite number of professional and occupational license cases on behalf of nearly every California Board, Bureau and Department, including the Board of Registered Nursing, Dental Board, Medical Board, Board of Behavioral Sciences, Respiratory Care Board, Board of Pharmacy, Board of Psychology, Board of Chiropractic Examiners, Physical Therapy Board, Board of Accountancy, Board of Optometry, Board of Veterinary Medicine, Board of Professional Engineers, Contractors’ State License Board, Bureau of Automotive Repair, Department of Motor Vehicles and the Department of Health.
In the capacity as a License Defense Attorney, I utilize my background and experience to provide advice and counsel to a countless number of individuals that seek to obtain or already have a professional or occupational license that is subject to denial or revocation, frequently as a result of a criminal case. I like to believe I am skilled in discerning the elements that are most important to evaluating and determining the appropriate outcome given such factors as rehabilitation, remorse and recognition of wrongdoing, which truly are the sin qua non (or most crucial elements) in the defense of both criminal as well as state licensing cases. I have always thought of this as my opportunity to level the playing field.
Judges have the inherent authority to impose and/or modify a sentence, which is required given the objectives of sentencing; to ensure the effective functioning of the court or administrative tribunal and to fairly administer justice; to right an enormous and/or perpetual wrong; at times and without imposing additional negative consequences beyond what has been rendered in an isolated single misdeed and/or in case after case in one’s criminal or disciplinary history. The Judge can look to any of the facts in a case to increase or decrease the sentence, outcome, penalty or result. A Judge may consider the prior criminal history and the entire factual background of the case and, at times, any unfiled, dismissed or allegations or cases when granting probation, ordering restitution or imposing sentence. The Judge may determine the existence or non-existence of any fact in aggravation and mitigation.
Here are a few examples of mitigating circumstances: The extent to which the individual has made progress in his or her life and is on the right track; whether there was any drug or alcohol induced behavior, and whether the individual has acknowledged having this disease; and, post-offense rehabilitation. Here, the prosecutor and Court or a state agency, evaluate whether there is compelling evidence of remorse; recognition of wrongdoing; demonstrated regret, guilty conscience, sorrow for the incident(s); and, by committing misdeeds, unprofessional conduct, and other grounds for disciplinary action or one or more crimes has evinced a lack of sufficient grounds to obtain a second chance [in some instances, the individual lacks an appreciation of the previous cases in which a second chance was already provided].
Having a plan in place “yesterday” is not too early; a plan of action can serve to evince the defendant his admitted his past and/or existing crimes or misdeeds, unprofessional conduct, negligence, etc. have resulted from his or her addiction to drugs or alcohol, and demonstrating by unequivocal evidence his or her commitment to address the underlying substance abuse problem by having previously enrolled in a drug or alcohol treatment program, thereby showing the Court or Administrative Law Judge (s)he has not only accepted responsibility for his or her actions, but has been pro-active in addressing the issue(s) that led to the commission of the crime or misconduct at hand or the past criminal and/or disciplinary history.
Another element in leveling the playing field is having a support system. Statistics show the more support a person has the better chance (s)he has of remaining law abiding.
In summary, the consequences of a case are obviously attributed, among other things, to the underlying charges, accusations, culpability, background and history; however, the nature and extent of retribution, deterrence and particularly rehabilitation are critical in presenting a defense and offense.