Doctor Acquitted of 12 Counts of Prescribing Without a Medical Purpose in Sacramento Superior Court

Doctors who prescribe narcotic pain medication are being charged criminally

Recently there has been a surge in criminal filings against doctors for prescribing medication “without a medical purpose.” (Cal. Health & Safety Code section 11153.)  With growing scrutiny around the abuse of prescription medications, law enforcement has started to focus less on the users of these drugs and more on the people who prescribe them.  This can be a terrifying situation for a doctor who was trying to treat his patients, but ended up facing felony charges.  If a doctor was convicted of a felony violation of Health & Safety Code section 11153, he would lose his license and possibly face jail or prison.

This is an unfortunate turn of events, as doctors have been taught for the last two decades that they were under treating pain, and should not be afraid to prescribe narcotic medication.  Consequently, doctors changed their prescribing habits, and now they are being charged criminally for the very conduct they were instructed to do.

If a doctor is acting in good faith, he is exempt from criminal liability

Thankfully, there is an affirmative defense that a doctor may rely upon: that of good faith.  If a doctor prescribed while acting in good faith, he is exempted from criminal liability.  (Health & Safety Code 11210.)  However, although this defense is available, it is considered “an affirmative defense.”  This means it is incumbent upon the doctor to raise this defense at trial.

a doctor may prevail if he is charged criminally

Recently, The Law Office of Kelly Babineau represented a doctor that was charged with 12 felony counts of violating Health & Safety Code section 11153 (prescribing without a medical purpose), and three counts of Welfare & Institutions Code 14107 (Medi-Cal fraud).  The charges that were filed in this case where the result of an undercover operation by the government.  Four different agents posed as patients, all presenting with different medical ailments.  The doctor treated each patient accordingly, prescribing the medication he believed appropriate for the patients.  After a 6 week trial, which included testimony of all 4 agents, two medical experts and the doctor, the jury acquitted the doctor of all counts.

It was an extremely emotional trial, as the doctor’s whole life had been devastated by the criminal process, and a loss on any count would have resulted in the loss of his medical license.  However, the jury was diligent and thoughtful in their analysis of the evidence and the law.  When the jury announced they had a verdict after only a few hours of deliberation, the doctor feared the worst.  However, as the verdicts were read: (“We, the jury in the above entitled case, find the defendant NOT GUILTY in Count — of the indictment”), the doctor slumped onto the table, overcome with relief and joy.  It was a wonderful and just outcome.

The American Prison System Is Not Working

Most people that have worked in the criminal justice system, if they are being honest, will admit that our system of retribution is not working.  On Sunday, the New York Times ran several stories about the different ways countries incarcerate those they deem the most dangerous.  I found this diagram very compelling, as it demonstrates how much harsher America is compared to the rest of the world.

However, the most intriguing article was the one regarding Norway’s Halden Prison. (Click HERE to read the article.)  Norway approaches its incarcerated individuals as those who need to be rehabilitated, not punished.  As a result, their recidivism rate is around 20 %, while the U.S.’s rate is approximately 67%.  It is time that we re-evaluate how and why we incarcerate people in this country.


Police Arrest San Francisco Public Defender For Protecting Her Client’s Rights.

Lately, the examples of police over reach have been abundant, from Ferguson to Arizona to Ohio.  I feel as though every time I sit down to read the newspaper, I am reading of some new example of police brutality or citizen being unlawfully arrested.  (NYPD Twitter campaign implodes, flooded with photos of police abuse)

Although I have met and worked with many good, decent, ethical law enforcement officers, I have also seen many individuals who have over-reacted or misused their power.  And yet today – we have yet another example.  SF Public Defender Jami Tillotson was arrested today when she dared to interfere with a detective who was attempting to take her client’s photo.  In this YouTube clip, you can see that Ms. Tillotson’s client was standing in a public space, NOT DETAINED OR UNDER ARREST.  And yet, when Ms. Tilloston dared to tell the officer, “No, you may not take his picture,” the officer promptly arrested her for resisting arrest.  Absolutely ridiculous.  You can see the You Tube clip here:  Jami Tilloston arrested


Now, of course, this is not even close to the abuse of power we have witnessed in Ferguson, Arizona or Ohio, in which unarmed black men have been killed by law enforcement.  Nor, is it as disgusting as the case of Eric McDonald – who spent just shy of nine years in federal prison – and was recently released – because the FBI hid exculpatory evidence.  (You can read more about Mr. McDonald here.)

I suppose the old axiom that “absolute power corrupts absolutely” is still true.  But, we as a society can strive for better.  We can insist that our law enforcement not only impose rules on us BUT follow the same rules (aka LAWS).  We have rules for the betterment of society – but that only occurs when the rules are applied evenly to everyone – including our government and their law enforcement agents

How does mental health relate to criminal law?

Often those in our society who suffer from mental health problems are institutionalized in our criminal justice system. In particular, over the last few years, the state has continued to cut the mental health budget. This has led to fewer services available for people in crisis, and more people being arrested rather than treated. As a society, we should put an emphasis on treating those with mental health problems, educating the public (including law enforcement) and providing services for those in crisis.

The unfortunate consequence of not providing proper treatment and education are cases like that of Moses Trotter.  Mr. Trotter was charged with murder for a tragic incident that occurred during a mental health crisis.  He pled to voluntary manslaughter, as the Sacramento District Attorney’s Office recognized Mr. Trotter’s mental health impaired his ability to form a specific criminal intent.  But if proper mental health services had been in place, this tragedy could have been avoided altogether.

Sometimes It’s Hard To Do the Right Thing

A recent acquittal I had in an attempted homicide case in which the client was facing 75 years to life had me reflecting on our criminal justice system.  Sitting on a jury is a difficult task, particularly in a criminal case.  Jurors are tasked with literally deciding the fate of an individual’s life.  Although human nature automatically leans towards believing the person must have done something wrong to be sitting in a courtroom facing charges.  But, the truth is, innocent people are charged and sometimes convicted.

Think about it.  A juror enters the court room, sees a defendant sitting at the table, possibly restrained to his chair.  They presume there must be some evidence, or he would not be in custody, arrested and facing charges.  So, while listening to the evidence, the juror is already preconditioned to believe that the person must be guilty of something.  It is a difficult task to put that aside, and actually say, no, there is not enough evidence, the defendant is not guilty.


But doing that, holding the government to its burden, is actually upholding our law.  Nicholas Kristof wrote a compelling piece in the Sunday NYT about a situation in which that did not happen. Chris Morton was wrongly convicted of the murder of his wife.  He served 25 years before he was released based on DNA testing.  It is a heart wrenching story.

But, jurors also get it right.  Sometimes the evidence is enough to prove the defendant’s guilt beyond a reasonable doubt.  And sometimes, when the evidence is not enough, the jury does do the right thing, and acquits the defendant.  On June 18, 2014, a Sacramento jury did just that in one of my cases.

Ruben Lopez was facing 75 years to life, based on three counts of attempted murder with gang enhancements.  The facts involved a verbal altercation between two groups with one person firing a gun.  Ruben Lopez was the only person charged.  During the trial I was able to demonstrate through systematic, persistent, effective cross-examination and defense witnesses that the evidence did not add up.  And at the end of the day, the jury found him not guilty of all charges.  It was a wonderful moment.  I worked diligently over the six week trial to attack the prosecution’s case, demonstrating the problems and inconsistencies.  And in one breath Mr. Lopez went from facing 75 years in prison to being home with his family.

Drunk Driving on the 4th of July

The Fourth of July is such a wonderful summer holiday.  The picnics, the BBQs, and of course the fireworks – all make you feel as though summer is really here.  But as we approach the long weekend, keep in mind that along with all of that celebrating, it is easy to misjudge a situation and end up driving when you have had too much to drink.  Placer County has announced that it will be increasing its DUI checkpoints and officers on the road.  Sacramento, no doubt, will be doing the same.  If you end up in the unfortunate situation of being detained or arrested for DUI, here are some tips to keep in mind:

  1. When an officer stops you, always be polite and respectful.  You have to provide them with your license, proof of insurance and real name.  You do not have to answer their questions about where you have been or what you have been drinking.  If the officer asks you to take a breath or blood test, you must comply, or risk losing your license for at least a year.  * Now the test you must take is the breath or blood test at the police station, and not the preliminary alcohol screening (PAS) device they offer at the scene.
  2. At the time of arrest, if the officer confiscated your license, and gave you a temporary license (it will be a pink piece of paper), you only have 10 days from the date of arrest to request a DMV hearing.  It is critical that the DMV hearing is requested within 10 days.  If it is requested, your license will typically remain good while the DMV hearing is pending.  You can request this hearing yourself, or you may contact an attorney.  Most attorneys will handle the DUI and DMV hearing together.
  3. Once you are released you will be given a court date.  You do not have to hire an attorney before that court date.  When you arrive in court, the DA will give you an offer or you may ask to continue the case to hire an attorney (or have one appointed to assist you.)  Although if you hire an attorney typically you will not need to appear in court and your attorney can handle the matter for you.

So, why should you consider hiring an attorney? Having a private attorney from the very beginning ensures your DMV matter and DUI case are handled in the way that best suits your needs.  For example, an attorney who is representing a client at the DMV hearing, in conjunction with the DUI, will be able to review the discovery early, so that the client and attorney may decide the best way to aggressively fight the case.  A private attorney also allows the client the ability to NOT attend court, in most cases.  This means that the attorney will be able to minimize the damage, embarrassment and inconvenience to your life, while still actively pursuing the best possible outcome.

But, of course, no one wants to have to be in the situation where they will need to hire an attorney.  So, as the weekend approaches, keep some simple rules in mind:

  1. A good rule of thumb is one drink per hour.  If you drink more than that, consider calling a taxi or a friend for a ride home;
  2. You can get a DUI in boat or on a bicycle.  Although the repercussions are less severe, they are still unpleasant.  Drink responsibly before putting yourself in charge of a car, boat or bike.
  3. Remember to drink water and eat food throughout the day.  It is easy to lose track of time.  You are less likely to over-indulge if you have eaten substantively and had beverages other than alcohol throughout the day.

OF COURSE this is not a guarantee that you won’t become inebriated or impaired if you follow these rules, so always exercise independent discretion.  If you think you may have had too much to drink, than do not drive.

But if you do end up in the unfortunate position of being arrested for a DUI, do not panic.  Pick up the phone, and call The Law Office of Kelly Babineau, so that I may assist you through this process and obtain the best result possible.

HAPPY 4th of JULY!!

fireworks pic

Posted in DUI