Information on the crime of practicing medicine without a license, also known as unauthorized practice of medicine, is found at California Business and Professions Code section 2052(a). This article is a summary of the law, the penalties, and the common defenses related to BP 2052(a). This summary is not intended to serve as a substitute for legal advice. If you have been charged with a crime, contact a criminal defense lawyer without delay.

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BP 2052(a) Law

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BP 2052(a): … any person who practices, or attempts to practice, or who advertises or holds herself out as practicing, any system or mode of treating the sick or afflicted in this California, or who diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing a valid, unrevoked, or unsuspended certificate… is guilty of practicing medicine without a license (BP 2052(a) Abbrev.).

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In essence, all of the following, if performed without a medical license, may be a violation of BP 2052(a): performing a medical procedure, treating a person with medicine, prescribing a medical treatment, diagnosing a person’s medical condition, advertising as a doctor, or even pretending to a doctor when another person might reasonably rely on that false representation, and more.

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Note: BP 2052(a) applies to the unauthorized practice of medicine in California. This does not mean that the unlicensed physician must be present in California when making her medical diagnosis. For example, when a doctor, who is licensed to practice medicine in Mexico, but who is not licensed to practice medicine in California, makes a medical diagnosis over the internet (Zoom, Facetime, etc.) of a “patient” in California, then that Mexican doctor is in violation of BP 2052(a).

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Common examples of BP 2052(a) violations include:

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• A doctor who is licensed to practice medicine in another country, but who is not licensed to practice medicine in California, who gives a person in California a medical diagnosis or medically treats that person in some manner.

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• A medical student or nurse, who has more medical knowledge than most people in society, but who is not licensed to practice medicine, and who nevertheless offers medical diagnosis or medical treatment to anyone.

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• A person who lost her medical license (revoked or suspended) but nevertheless continues to medically treat or diagnose another person.

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• A person who uses language in her advertisement materials that is usually associated with licensed professionals, despite the fact that the defendant is not a licensed physician (i.e. DDS, Doctor, M.D., Physician, etc.).

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• A palm reader, fortune teller, soothsayer, seer, conjurer, astrologist, witchdoctor, oracle, or other star-gazing “health” advisor who, without a medical license, informs her “patient” that he or she should commence or discontinue medical treatment that is ordinarily prescribed by a licensed doctor. This includes unlicensed hypnotists and acupuncturing that offer curative medical treatment through hypnosis or acupuncture without being a licensed physician.

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Note: Offering over-the-counter medications, by a non-licensed physician, is not likely to be considered practicing medicine without a license, especially when the person offering the over-the-counter medication is not pretending to be a licensed physician (mom, dad, wife, etc.).

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BP 2052(a) Penalties

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Incarceration: The unauthorized practice of medicine may be criminally charged either as a misdemeanor, or as a felony (wobbler). When BP 2052(a) is charged as a misdemeanor, the defendant may face up to one year in the county jail. When BP 2052(a) is charged as a felony, the defendant could face up to three years in the county jail.

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Note: Felony BP 2052(a) sentencing has a range: The sentencing range starts at a non-jail probation sentence (see probation sentence below) or a 16 month, 2 year, or 3 year jail sentence. Whether the defendant is granted a non-jail probation sentence after a conviction for violating BP 2052(a) depends largely on the facts of the case, the injury (if any) to any victims, the defendant’s criminal history, and the terms of a plea agreement between the defendant and the district attorney (if any). If the defendant is convicted of BP 2052(a) and she does not receive a non-jail sentence, then the judge will sentence the defendant to either 16 months, 2 years, or 3 years in jail. Again, whether the defendant receives a low term jail sentence (16 months), a mid-term jail sentence (2 years) or an aggravated term jail sentence (3 years), depends largely on the egregiousness of the defendant’s conduct, the facts of the case, the presence of any injury to victims, and the terms of a plea agreement between the defendant and the district attorney (if any).

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Probation Sentence: A probation sentence is a period of supervision in lieu of actual jail. A probation sentence is available in BP 2052(a) cases, but a probation sentence is not guaranteed. As stated, whether a defendant will receive a probation sentence after a conviction of unauthorized practice of medicine depends largely on the facts of the case and the defendant’s criminal history, among other factors. A probation sentence after a misdemeanor conviction of BP 2052(a) is called informal or summary probation. Informal misdemeanor probation is monitored by the court. A probation sentence after a felony conviction of BP 2052(a) is called formal probation. Formal probation is monitored by a probation officer. Probation sentences usually last for three years in both misdemeanor and felony cases involving BP 2052(a).

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Note: Probation sentences carry terms of probation (conditions). If the defendant does not fulfill the terms of her probation sentence then she may be found to have violated her probation and could be sentenced to jail. Also, sometimes a term of probation will be to serve a jail sentence. However, when a term of probation includes a jail sentence, that jail sentence is usually much shorter than the defendant would have served under a no-probation jail sentence and the jail sentence associated with a probation condition may usually be served alternatively on work release or house arrest.

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PC 1170(a) Sentencing: Felony BP 2052(a) convictions are covered under California’s Realignment Sentencing (PC 1170). This means that even if the defendant is incarcerated after a conviction for BP 2052(a), that sentence will be served in a local county jail (as opposed to a state prison), and the defendant’s jail sentence may be split (served partially in jail and partially out of jail on work release or some other type of community service), or suspended (not served unless the defendant violates a condition of her out-of-custody sentence). For more information, see PC 1170(h).

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Three Strikes Law: The unauthorized practice of medicine is not considered a strike offense in California; BP 2052(a) is not classified as either a serious offense (PC 1192.7), or a violent offense (PC 667.5); however, if there is serious injury caused to the victim as a result of the defendant’s unauthorized practice of medicine, then the defendant could be charged with a penalty enhancement that amounts to a strike offense. See Penalty Enhancements & Three Strikes Sentencing.

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Additional Penalties: In addition to any possible jail sentence, if the defendant is convicted of practicing medicine without a license, the defendant could suffer any of the following punishments: Deportation or denial of reentry into the United States (for non-US citizens), denial of entry or discharge from the armed services (Navy, Army, Space Force, Marines, etc.), fine, court fees, civil lawsuits, restitution, loss of the right to own or possess a firearm (felony BP 2052(a) cases), loss of a professional license (doctor, dentist, psychologist, teacher, nurse, lawyer, etc.), restraining orders (criminal protective orders), and more.

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Defenses to BP 2052(a)

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Common defenses used in BP 2052(a) cases include: statute of limitations (1 year for misdemeanors and three years for felonies in BP 2052(a) cases), mistake of fact, coerced confessions, illegal search and seizure, necessity, insufficient evidence required to prove the district attorney’s case, and more.

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Note: The term practice in BP 2052(a) can be ambiguous. In other words, in many cases there is room for defense to argue that the defendant’s conduct does not amount to practicing medicine. Obviously, if the defendant dons a lab-jacket and stethoscope, while walking the halls of a hospital and dolling out medical advice and medications, then he is probably in violation of BP 2052(a). But most cases of BP 2052(a) are not as obvious as to whether or not the defendant is engaged in practicing medicine.

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Note: It is not a defense to a charge of practicing medicine without a license to show that the “patient” was not injured by the defendant’s conduct or that the “patient” never relied on the defendant’s medical advice. Likewise, it is not a defense to a charge of unauthorized practice of medicine to show that the defendant received no compensation for her unlicensed medical treatment, surgery, diagnosis, etc.

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For more information on the crime of unauthorized practice of medicine (practicing medicine without a license), or BP 2052(a), contact our criminal defense lawyers today. Our criminal defense team has successfully handled hundreds of felony and misdemeanor criminal charges. We offer free consultations and our lawyers are available every day of the week to discuss your case, your rights, and most importantly, your defense options. Call today!

 

909-913-3138

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