Nicole Irmer | Posted in Licensing Defense on January 2, 2020
The nurses we see in our practice for DUI defense never intended to drive under the influence. Some nurse’s blood alcohol levels (BAC) are only slightly above the legal limit, whereas others may be two to five times the legal limit. They’re all mortified about their mistake and, above all, terrified about the implications this mistake may have on their ability to earn a living as a nurse.
A DUI for a Medical Professional is a life-changing event and can be especially damaging for a nurse. A misdemeanor conviction may have a collateral impact that stays with the Nurse for years. Nurses accused of a DUI must contend with not only the criminal charges and the DMV complaint, but must also face oversight from their licensing Board. For RNs, the California Board of Registered Nursing (BRN) will investigate the RN’s DUI and evaluate circumstances surrounding the DUI and the Nurse’s conduct (both at work and outside of work) to consider whether the DUI is a single event or whether there is a deeper issue that may be putting public safety at risk.
When RNs contact our office they are overwhelmed by the events and not sure how to move forward. Common questions that are at the forefront of their mind include:
(Please note, these answers are only applicable to California Registered Nurses. Nurses who hold licenses with other Boards have other disclosure requirements. For example, LVNs are licensed by a different licensing Board – the Board of Vocational Nurse and Psychiatric Technician. The BVNPT does require that LVNs disclose arrests within 30 days).
The California Board of Registered Nursing requires RNs to disclose convictions, which includes a plea of guilty or no contest in criminal court, within 30 days from the date of court action. This requirement can be found in the California Code of Regulations Title 16, Section 1441(c). The definition of conviction is different for Licensing Board vs. the Criminal Court System. If your matter resolves for Diversion, or a Deferred Entry of Judgment – and the mechanism for resolution requires an initial plea to any charge that is subsequently dismissed – the Nurse must still disclose the conviction. This is true if the plea is dismissed the same day, or even minute, that the plea is entered.
The Nursing Board will be notified by the Department of Justice after arrest or a plea has been entered in criminal court. The Board considers self-reporting a mitigating factor. Often with cases involving DUI and Nursing Licenses, it’s not the first time DUI but the failure to disclose or report that is a problem. Falsely claiming or omitting it did not happen can bring serious ramifications to the Nurse.In addition to reporting the conviction within 30 days, nurses are also required to disclose their conviction upon renewal. Nurses disclosing a conviction should allow extra time during the biannual nursing license renewal process. This is due to the fact that you must disclose if you were convicted of DUI and if your driver’s license was suspended. You may be required to submit additional supporting documentation along with your license renewal application.
The BRN recognizes the risks of stress from the profession and that relief may be sought from drugs and alcohol. To address these issues the BRN created a drug and alcohol intervention program designed to help RNs who may be showing symptoms of burn out. (See Intervention program link.)
However, if a nurse does not qualify for the intervention program or chooses not to participate because of the requirement that they must abstain from work for a substantial time, the Board will investigate and evaluate whether discipline is warranted by its disciplinary guidelines and the level of discipline under the Nurse Practice Act (NPA). A Board considers a DUI unprofessional conduct even if it occurred on the Nurses’ own time.
Under relevant statutes, the Board has the authority to sanction, discipline, suspend and/or revoke a license for unprofessional conduct, which includes a conviction of a felony or “any offense substantially related to the duties of a registered nurse.” The Board has determined that a DUI is an unprofessional conduct because such conduct involves the use “dangerous drugs or alcohol in a manner which is dangerous to the licensee or the public or to the extent that such use impairs the ability of the licensee to conduct himself or herself professionally with safety.”
The Board will evaluate whether the facts surrounding the DUI, the nurse’s history, and other relevant evidence to determine the level of discipline or sanction to impose.
The Board outlines, within the Disciplinary Guidelines, criteria to be considered when determining what level (if any) of discipline should be imposed. These factors include:
Traditionally, the conviction of a non-aggravated (no accident, low BAC) first time DUI has been considered a minor violation of the NPA and may be handled with a Citation Order, which can carry a fine. This sanction is limited to fines and does not place restrictions on the Nurses license, but it can become part of the permanent record and may be disclosed to the public on request for a period of three years. If the nurse objects to the Citation, the nurse has a right to an administrative hearing.
If the facts of the DUI are aggravated, the nurse’s BAC was elevated, there was an accident, or there are multiple substance-related offenses, and the Board determines that the conviction was a major violation of the NPA, the Board will forward the case to the Attorney General’s Office. The Attorney General is the attorney for the Board of Registered Nursing. The Attorney General’s Office will then prepare a formal Accusation upon review of the evidence. The Accusation will be served to the Nurse and posted online on the Nurse’s Breeze License Profile. After the Accusation is filed upon the Nurse, there is a short time frame to preserve and assert his or her rights and file a Notice of Defense, to alert the Board and Deputy Attorney General that you want to protect your license. After the Notice of Defense is filed, defense counsel can negotiate an appropriate stipulated settlement and/or schedule an Administrative Hearing.
When a nurse’s DUI results in an Accusation against his or her license, there are several levels of discipline. Types of Discipline include A Letter of Public Reprimand, Stayed Revocation (with Probationary Terms), Suspension, or Revocation.
A Letter of Public Reprimand (LPR), is a formal warning, attached to the nurse’s license, and may be viewed online for three years. LPRs place no restrictions on the nurse’s license or ability to practice nursing.
Many DUI convictions, however, result in a Probationary Term as outlined by the Board’s Disciplinary Guidelines. The Board may impose up to 20 probation requirements on a nurse. Although many are self-explanatory, such as obeying all laws and reporting in-person to a probation monitor, others may be difficult or even cause financial hardship for a nurse with a DUI. For example, the nurse will have to pay back the money that the Board spent investigating and trying the disciplinary case (known as “cost recovery”). A nurse on probation will also have to submit to numerous random drug and alcohol tests over the course of his or her probationary period, as well as assume the cost of these tests.
Probation allows the nurse to continue working on a restricted basis for 3-7 years. If the nurse fulfills all of the probation requirements, the probation will end. If the nurse violates the terms of his or her probation, his or her RN license may be revoked or their probationary term may be extended.
In more serious cases, the Board may favor a nursing License Suspension of Revocation. The Board may insist on License Suspension or Revocation in cases where the nurse needs to enter a rehabilitation or diversion program before he or she can practice nursing in a safe manner.
At the Law Office of Nicole Irmer, our nursing board attorneys are experienced in defending nurses against criminal DUI charges as well as protecting nurses’ rights before the BRN. With our deep knowledge of both criminal law and professional licensure, we understand the implications that a DUI can have on your nursing career and can take the necessary steps to protect your livelihood.
If you have been arrested for DUI or are under investigation by the Nursing Board, please contact our office or call (619) 237-6130 today to discuss your rights and options.