Cal: In administrative review, a 4A claim has to be raised before the agency first

Petitioner is a doctor who was accused of controlled substance prescription violations of the medical practices act. His claim under the California privacy provision fails because of the countervailing interests of the state in protecting against incompetent or negligent doctors. His Fourth Amendment claim that the prescription records were obtained without a warrant from a statewide database is forfeited for not having been raised before the agency. A claim of informational privacy is not necessarily a search and seizure claim, and it wasn’t presented below that way. Lewis v. Superior Court, 2017 Cal. LEXIS 5129 (July 17, 2017).

Lewis also asserts that the Board’s access of the CURES records violates the Fourth Amendment to the United States Constitution. We agree with the Board that Lewis has forfeited this claim on behalf of his patients by failing to raise it at the administrative proceedings or before the superior court. Lewis’s fleeting references to “fundamental privacy protections guaranteed under state and federal law” were insufficient to preserve the issue. His claims before the Board and the trial court were supported entirely on the basis of the California Constitution. Lewis’s argument may be more convincing if he had presented arguments under article I, section 13 of the California Constitution, the provision that explicitly protects against unreasonable searches and seizures. However, given that the thrust of his arguments before the Board and the trial court asserted a general right to informational privacy, with no mention of search or seizure, at most he can be said to have asserted a federal right to informational privacy under the Fourteenth Amendment, a claim that he does not pursue before this court.

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