DUI and a California Nursing License
If you hold a nursing license, are an LVN, or are in nursing, certified by the State of California, the state requires you disclose any convictions. DUI and Nursing Licenses cases need special handling.
Just to address the most common answers regarding DUI and a California Nursing License:
- No, you do not have to disclose an arrest.
- Yes, you have to report a conviction, and report it soon after it happens.
- A first time DUI might be a problem, but it depends on the facts involved (see below).
- A second time or higher DUI is definitely a problem.
- Yes, for all cases, you can benefit from an attorney who can handle your DUI case and advise you regarding your license.
DUI and Nursing Licenses: The Law
The California Board of Registered Nursing has jurisdiction to discipline any license holder. That comes from the agreement when you get your license to be subject to the jurisdiction, under §2750 of the Business and Professions Code. That code section provides for discipline of nurses under the Nursing Practices Act.
Business and Professions Code §490 provides that the Board may suspend or revoke a license on the grounds that the licensee has been convicted of a crime substantially related to the qualifications, functions, or duties of the profession. You must self report, and information on self reporting for your license is here.
B&P §493 provides that the record of conviction of the crime is conclusive evidence of the conviction. However, the Board allows itself in that code section to inquire into all of the surrounding circumstances of the offense in order to fix the degree of discipline or, to determine if the conviction is “substantially related to the qualifications of the licensee””.
B&P §2761 provides the Board can take action against a licensee for unprofessional conduct under subsection (f) which includes conviction of a felony or any offense substantially related to the duties of a registered nurse.
§1444 of Title 16 of the California Code of Regulations provides that an act or conviction is substantially related if it evidences the present or potential unfitness of a registered nurse to practice safely.
So where does a DUI fit in?
A DUI can be a conviction for driving under the influence of drugs, or alcohol, or being above a .08% while operating a motor vehicle. In addition to the above considerations, the Board has authority to suspend or revoke a license for unprofessional conduct under B&P §2762 which includes the use of dangerous drugs or alcohol to the extent or 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.
Subdivision (c) provides that conviction of a criminal offense involving prescriptions, consumption or self-administration of drugs or alcohol or falsification of records is conclusive evidence of unprofessional conduct.
Factors the board uses in deciding what action to take with a DUI
§1445 of Title 16 of The Code of Regulations sets forth criteria for evaluating the rehabilitation of the licensee and includes the following:
- (1) Nature and severity of the acts or offenses;
- (2) Total criminal record;
- (3) Time that has elapsed since the commission of the offense;
- (4) Whether the licensee has complied with the terms of probation;
- (5) Evidence of expungement proceedings under Penal Code §1203.4 and
- (6) Evidence of rehabilitation submitted by the licensee.
Traditionally, the conviction of a non aggravated 1st time DUI has not been considered to be substantially related and will not result in an accusation before the Board if the blood alcohol level is below a 0.15%.
The Board also has the power to act under B&P §§ 125.9 and 148 and issue a Citation Order, which can carry a fine up to $2,500.00 as discipline. Even though sanctions are limited to fines, the nurse has a right to an administrative hearing and should consider exercising that right in light of the fact that the citation becomes part of the nurse’s permanent record and will be disclosed to the public on request for a period of (3) years under CCR §1435.15.
DUI and Nursing Licenses and the case of Sulla v. Board of Registered Nursing
The decision in Sulla v. Board of Registered Nursing (2012) 105 Cal.App.4th 1195 dramatically changes the scope of discipline that nurses in California can expect in even routine, non-aggravated first offense DUI convictions. Sulla plead no contest to a first offense DUI after being involved in a non-injury collision with a center divider and a blood alcohol concentration of .16%. At the hearing, the evidence showed that Sulla was a highly respected nurse who had no record of prior disciplinary actions. Colleagues had never seen signs that he was impaired on the job or had been drinking before he came in to work, and he did not have a habit of coming in late or calling in sick. A fellow nurse who was also a personal friend testified that Sulla rarely drank when they socialized together, and she had never seen him drink heavily. A board-certified psychiatrist who evaluated Sulla believed he did not meet the diagnostic criteria for alcohol abuse or dependence, and that his conviction “represents a single, isolated episode of poor judgment.”
The ALJ ruled that there was no cause for discipline under sections 490 and 2761, subdivision (f), because both of those provisions require proof of a criminal conviction “substantially related to the qualifications, functions, or duties” of a registered nurse. He reasoned that Sulla’s “single DUI conviction does not evidence, to a substantial degree, a present or potential unfitness to practice nursing in a manner consistent with the public health, safety or welfare.”
However, the ALJ concluded that discipline was appropriate under section 2762, subdivision (b), which provides that it is unprofessional conduct for a nurse to “[u]se … alcoholic beverages, to an extent or in a manner dangerous or injurious to himself or herself, any other person, or the public or to the extent that such use impairs his or her ability to conduct with safety to the public the practice authorized by his or her license.” The ALJ also ruled that discipline was appropriate under section 2762, subdivision (c)which defines as unprofessional conduct the conviction “of a criminal offense involving the … consumption … or self-administration” of alcohol. Sulla’s argument that he was denied equal protection of laws because discipline of physicians requires 2 or more convictions was rejected based on the Court’s conclusion that a “rational basis” exists for the dissimilar regulation.
Multiple Offense DUI and Nursing Licenses
Multiple offenders (a second time DUI or higher) are where the intersection of DUI and action against a license really takes action.
With DUI and Nursing Licenses, when the nursing board suspects an alcohol dependency problem, they may use a DUI or other alcohol-related conviction to require the nurse to undergo a psychological evaluation, physical evaluation, random urine tests and substance abuse rehabilitation. It will also demand that they take a leave of absence from work.
Multiple offenders will be asked to participate in the Nurses Assistance Program in lieu of disciplinary proceedings. Many nurses forgo the Nurses Assistance Program because of the requirement that they take abstain from work for a substantial time and attempt to work out appropriate conditions of probation through negotiations while contesting the Accusation before the Board.
Nurses should be aware that the Board will be notified and that the Board considers self reporting a mitigating factor. Often, with cases involving DUI and Nursing Licenses, it’s not so much the first time DUI, but the failure to disclose or report that is a problem. Falsely claiming it didn’t happen is definitely a serious problem.
A helpful Nursing Board publication entitled “Recommended Guidelines for Disciplinary Orders and Conditions of Probation” may be accessed at www.rn.ca.gov/pdfs/enforcement/discguide.pdf.
If you have a nursing license, and are facing a DUI, contact us right away. We can advise you and help you protect your case from affecting your license.