What Will Happen to My RN License if I Have a DUI?

How Does The California Board of Registered Nursing Get Away with License Revocation for DUI Conviction?

THE REASONING:

"In keeping with its obligation to protect the consumer of nursing services from the unsafe, incompetent and/or negligent registered nurse, the Board of Registered Nursing has adopted recommended guidelines for disciplinary orders and conditions of probation for violations of the Nursing Practice Act." – Board of Registered Nursing's Recommended Guidelines for Disciplinary Orders and Conditions of Probation

The California Board of Registered Nursing (BRN) considers any drug or alcohol related arrest or conviction of a registered nurse to be Unprofessional Conduct because it is considered using alcohol or drugs in a dangerous manner (Bus. & Prof. Code Section 2762 d.).

The recommended discipline for a nurse arrested or convicted of a Driving under the Influence, or DUI charge is as follows:

2762(b) Use of any narcotic, dangerous drug, or alcohol to the extent that it is dangerous to self or others, or the ability to practice nursing safely is impaired.

• Recommended discipline: Revocation

In cases of first time offense with documented evidence of an on-going rehabilitation program:

• Minimum discipline: Revocation stayed with 3 years probation.

Minimum conditions of probation: 1-19

2762(c) Conviction of a criminal offense involving the prescription, consumption, or self-administration of narcotics, dangerous drugs, or alcohol, or the possession of or falsification of a record pertaining to narcotics or dangerous drugs.

(1) In cases in which the respondent was under the influence, withheld or substituted drugs on the job:

• Minimum discipline: Revocation

(2) In cases of first time offense with documented evidence of an on-going rehabilitation program, except in cases where the respondent withheld or substituted drugs on the job:

• Minimum discipline: Revocation stayed with 3 years probation

Minimum conditions of probation: 1-19

(3) In cases where the conviction is for falsification of records pertaining to controlled substances:

• Minimum discipline: Revocation stayed with 3 years probation.

Minimum conditions of probation: 1-19

IMPORTANT CONSIDERATIONS:

Successful completion of a court-ordered diversion program (PC1000) or of an alcohol and drug problem assessment program does not prohibit the Board from denying or disciplining a license based upon the underlying misconduct. Also, an arrest that does not lead to a conviction does not automatically except the nurse from discipline.

WHAT THE BRN CONSIDERS IN DETERMINING DISCIPLINE:

1. Nature and severity of the act(s), offenses, or crime(s) under consideration.

2. Actual or potential harm to the public.

3. Actual or potential harm to any patient.

4. Prior disciplinary record.

5. Number and/or variety of current violations.

6. Mitigation evidence.

7. Rehabilitation evidence*

8. In case of a criminal conviction, compliance with conditions of sentence and/or court-ordered probation.

9 Overall criminal record.

10. Time passed since the act(s) or offense(s) occurred.

11. If applicable, evidence of expungment proceedings pursuant to Penal Code Section 1203.4.

*Criteria to be considered in determining rehabilitation for abuse of alcohol or other drug related offenses include, but are not limited to:

• Successful completion of drug/alcohol treatment program (a minimum of six (6) months duration). The treatment program may be a combined in-patient/out-patient and aftercare. Such a program will include at least the following elements:

o Chemical-free treatment philosophy

o Individual and/or group counseling

o Random, documented biological fluid screening

o Participation in nurse (or other professionals') support group(s)

o Education about addictive disease

o Adherence to a 12-step recovery program philosophy, or equivalent

o Written documentation of participation in 12-step recovery groups, or equivalent

• For registered nurse licensees, employment in nursing for a minimum of six (6) months with documentation (from the employer) that the employer was aware of the previous drug or alcohol abuse problems. Documentation must substantiate that while employed, there was no evidence of continued alcohol or drug use and that the nurse performed nursing functions in a safe and competent manner.

WHAT THE REASONABLE EXPECTATION IS FOR DUI DISCIPLINE:

Without RN Guardian, refer to the first portion of the Article, sections 2762 (b) & (c) – your license will be revoked or you will have the revocation stayed for 3 years with 19 probation requirements.

RN Guardian has been successful in having cases dismissed entirely (although this is very rare). Our License defense lawyers have successfully negotiated a.) Cites and Fines, b.) Letters of Public Reprimand Letters of Public Reproval, c.) Rule Out Provisions of Probationary Terms; and d.) Reduced costs.

a.) Cite and Fine: This is exactly what it sounds like: it is a citation and a fine. It is public record by request, but is not posted on the BRN's website.

b.) Letter of Public Reprimand: This is a letter that reprimands the nurse for her conduct and it is attached to his or her RN License number on the BRN's website.

c.) Rule out Provision: This is where probation requirements 15-19 are "ruled out" if the nurse can show through a physical and mental health examination that they are not dependent upon alcohol or chemically dependent.

d.) Reduced Cost: This is where our lawyers argue that because the most severe discipline was not imposed, the cost should be reduced accordingly.

WHAT THE PROBATION REQUIREMENTS ARE:

STANDARD PROBATION CONDITIONS

Conditions 1-13 are required as follows:

1) Obey all Laws

• The nurse shall obey all federal, state and local laws. A full and detailed account of any and all violations of law shall be reported to the BRN in writing within seventy-two (72) hours of occurrence. To permit monitoring of compliance with this condition, the nurse shall submit completed fingerprint forms and fingerprint fees within 45 days of the effective date of the decision, unless previously submitted as part of the licensure application process.

2) Comply With Board's Probation Program

• The nurse shall fully comply with the conditions of the Probation Program established by the BRN and cooperate with representatives of the Board in its monitoring and investigation of the nurse's compliance with the Board's Probation Program. The nurse shall inform the Board in writing within no more than 15 days of any address change and shall at all times maintain an active, current license status with the Board, including during any period of suspension.

3) Report in Person

• The nurse, during the period of probation, shall appear in person at interviews/ meetings as directed by the Board or its designated representatives.

4) Residency or Practice Outside of State

• Periods of residency or practice as a registered nurse outside of California shall not apply toward a reduction of this probation time period. The nurse's probation is tolled, if and when he or she resides outside of California. The nurse must provide written notice to the Board within 15 days of any change of residency or practice outside the state, and within 30 days prior to re-establishing residency or returning to practice in this state.

• The nurse shall provide a list of all states and territories where he or she has ever been licensed as a registered nurse, vocational nurse, or practical nurse. The nurse shall further provide information regarding the status of each license and any changes in such license status during the term of probation. The nurse shall inform the Board if he/she applies for or obtains a new nursing license during the term of probation.

5) Submit Written Reports

• The nurse, during the period of probation, shall submit or cause to be submitted such written reports/declarations and verification of actions under penalty of perjury, as required by the Board. These reports/declarations shall contain statements relative to nurse's compliance with all the conditions of the Board's Probation Program. The nurse shall immediately execute all release of information forms as may be required by the Board or its representatives.

• Respondent shall provide a copy of this decision to the nursing regulatory agency in every state and territory in which he or she has a registered nurse license.

6) Function(work) as a Registered Nurse

• The nurse, during the period of probation, shall engage in the practice of registered nursing in California for a minimum of 24 hours per week for 6 consecutive months or as determined by the Board. For purposes of compliance with the section, "engage in the practice of registered nursing" may include, when approved by the Board, volunteer work as a registered nurse, or work in any nondirect patient care position that requires licensure as a registered nurse.

7) Employment Approval and Reporting Requirements

• The nurse shall obtain prior approval from the Board before commencing or continuing any employment, paid or voluntary, as a registered nurse. The nurse shall cause to be submitted to the Board all performance evaluations and other employment related reports as a registered nurse upon request of the Board.

• The nurse shall provide a copy of this decision to his or her employer and immediate supervisors prior to commencement of any nursing or other health care related employment.

• In addition to the above, the nurse shall notify the Board in writing within seventy-two (72) hours after he or she obtains any nursing or other health care related employment. The nurse shall notify the Board in writing within seventy-two (72) hours after he or she is terminated or separated, regardless of cause, from any nursing, or other health care related employment

8) Supervision

• The nurse shall obtain prior approval from the Board regarding respondent's level of supervision and/or collaboration before commencing or continuing any employment as a registered nurse, or education and training that includes patient care. The nurse shall practice only under the direct supervision of a registered nurse in good standing (no current discipline) with the Board of Registered Nursing, unless alternative methods of supervision and/or collaboration (e.g., with an advanced practice nurse or physician) are approved. The nurse's level of supervision and/or collaboration may include, but is not limited to the following:

(a) Maximum - The individual providing supervision and/or collaboration is present in the patient care area or in any other work setting at all times.

(b) Moderate - The individual providing supervision and/or collaboration is in the patient care unit or in any other work setting at least half the hours respondent works.

(c) Minimum - The individual providing supervision and/or collaboration has person-to-person communication with respondent at least twice during each shift worked.

(d) Home Health Care - If the nurse is approved to work in the home health care setting, the individual providing supervision and/or collaboration shall have person-to-person communication with the nurse as required by the Board each work day. The nurse shall maintain telephone or other telecommunication contact with the individual providing supervision and/or collaboration as required by the Board during each work day. The individual providing supervision and/or collaboration shall conduct, as required by the Board, periodic,

9) Employment Limitations

• The nurse shall not work for a nurse's registry, in any private duty position as a registered nurse, a temporary nurse placement agency, a traveling nurse, or for an in-house nursing pool. The nurse shall not work for a licensed home health agency as a visiting nurse unless the registered nursing supervision and other protections for home visits have been approved by the Board. The nurse shall not work in any other registered nursing occupation where home visits are required.

• The nurse shall not work in any health care setting as a supervisor of registered nurses. The Board may additionally restrict respondent from supervising licensed vocational nurses and/or unlicensed assistive personnel on a case-by-case basis.

• The nurse shall not work as a faculty member in an approved school of nursing or as an instructor in a Board approved continuing education program.

• The nurse shall work only on a regularly assigned, identified and predetermined worksite(s) and shall not work in a float capacity. If the nurse is working or intends to work in excess of 40 hours per week, the Board may request documentation to determine whether there should be restrictions on the hours of work.

10) Complete a Nursing Course(s)

• The nurse, at his or her own expense, shall enroll and successfully complete a course(s) relevant to the practice of registered nursing no later than six months prior to the end of his or her probationary term. The nurse shall obtain prior approval from the Board before enrolling in the course(s).

• The nurse shall submit to the Board the original transcripts or certificates of completion for the above required course(s). The nurse shall return the original documents to Board after photocopying them for its records.

11) Cost Recovery (Does not apply to Applicants)

• The nurse shall pay to the Board costs associated with it investigation and enforcement pursuant to Business and Professions Code Section 125.3 The nurse shall be permitted to pay these costs in a payment plan approved by the Board, with payments to be completed no later than three months prior to the end of the probation term.

12) Violation of Probation

• If the nurse violates the conditions of his/her probation, the Board after giving the nurse notice and an opportunity to be heard, may set aside the stay order and impose the discipline (revocation/suspension) of the nurse's license.

13) License Surrender

• During the nurse's term of probation, if he or she ceases practicing due to retirement, health reasons or is otherwise unable to satisfy the conditions of probation, the nurse may surrender his or her license to the Board. The Board reserves the right

to evaluate the surrender request and to exercise its discretion whether to grant the request, or to take any other action deemed appropriate and reasonable under the circumstances, without further hearing. Upon formal acceptance of the tendered license and wall certificate, the nurse will no longer be subject to the conditions of probation.

Surrender of the nurses's license shall be considered a disciplinary action and shall become a part of the nurse's license history with the Board.

OPTIONAL PROBATION CONDITIONS

Conditions 14-19 are usually required (in addition to the standard conditions 1-13) if the offense involves alcohol/drug abuse. In cases of mental illness conditions 14, 18, and 19 are recommended. Any of these optional conditions may be included if relevant to the violation.

14) Physical Examination

15) Participate in Treatment/Rehabilitation Program for Chemical Dependence

16) Abstain From Use of Psychotropic (Mood-Altering) Drugs

17) Submit to Tests and Samples

18) Mental Health Examination

19) Therapy or Counseling Program

20) Actual Suspension of License

HOW MUCH THIS IS ALL GOING TO COST:

It is important to note, that all requirements are at the nurse's own expense. Probation requirements 14-19 can cost over $20,000.00 over the course of a three year probation term. A nurse would actually pay Tens of thousands LESS for our flat rate retainer fee to negotiate a Rule-Out Provision, than it would cost the RN to participate in all 19 requirements. 

Please call me toll free at 866-596-9033 and I will gladly answer all of questions, let you know what to expect and give you an affordable way to save your RN License.

RNG is Moving to Flat Fees for RN License Accusations for California Nurses with DUI’s

RN Guardian’s License Defense Program is receiving an average of 5 calls per week from nurses who have received an Accusation from the Board of Registered Nursing (BRN) because of a Driving Under the Influence (DUI) conviction. That means the Board is cracking down even harder and filing more of them. If you are a California Registered Nurse and you’ve had a DUI, it is only a matter of time before you receive an Accusation from the BRN.

As the Executive Director of RN Guardian, I have been appalled to hear that other self-proclaimed “license defense attorneys” in California are asking as much as $15,000.00 in retainer fees to represent nurses in BRN accusations because of a DUI arrest or conviction. (One lawyer told our now-client that it would cost her $30,000.00!) I think it is unconscionable that these lawyers are taking advantage of nurses while they are the most vulnerable and convincing them that $10,000.00 is a good trade off to keep their license and career. In a way, the lawyers are right: 10 grand is not a bad trade to save a million dollar career, but what these lawyers aren’t telling nurses is that it doesn’t have to cost even ½ that much.

Why Did I Receive a Letter From the BRN Offering Me the Diversion Program?

I answer this question daily but you can probably answer it yourself. You will receive a letter offering you the Board of Registered Nursing or LVN Board’s Diversion program if any of the following have occurred:

• You are a registered nurse or LVN and you’ve been recently been arrested for a Driving Under the Influence Charge (DUI)
• You are a registered nurse or LVN and were at one time convicted of a Driving Under the Influence Charge (DUI)
• You are a registered nurse or LVN and have recently been arrested for Drunk in Public or Disturbing the Peace and there was alcohol involved.
• You are a registered nurse or LVN who has recently been arrested for any domestic disturbance in which alcohol played a roll.

Issues:

1.What is the process of petitioning the Board of Nursing for a reduction in probation terms?

2.How do you go about petitioning the Board for a reduction in supervision while on probation?

3.Is there a standard for reduction in supervision on probation?

4.Can a RN request their probation file from the Board under the Freedom of Information Act?

Short Answer: Once the petition is filed with the board, a hearing will be held where the petitioner carries the burden of proof.  The petitioner and the Attorney General will be able to argue to the Board and provide evidence in support or against the petition to modify.  In determining whether to modify, the Board will look at various factors in determining whether the petitioner should be considered rehabilitated and the probation should be terminated or modified.  Previous decisions by the Board suggest that in petitioning to modify probation, the petitioner can ask for what aspect of their probation they want modified and the Board will then determine whether to grant it, as opposed to a standard for reduction in probation.

Once a Petition for reinstatement or modification of penalty has been filed with the board, the following procedures apply:

A registered nurse who has been placed on probation may petition the board for reinstatement or modification of penalty, including reduction or termination of probation, after a period not less than the minimum periods has elapsed from the effective date of the decision ordering that disciplinary action.  The minimum period for probation is at least two years for early termination of a probation period of three years or more.  To modify a condition or terminate probation of less than three years, one year must have passed.[1]

            Once the petition for modification of probation or early termination of probation is filed, the Board must notify the Attorney General of the filing of the petition.  A hearing[2] will be held where both the petitioner and the Attorney General is given an opportunity to present both oral and documentary evidence and argument to the board, with the petitioner at all times having the burden of proof.[3]   The board will hear the petition and the administrative law judge will prepare a written decision.  The board may then grant or deny the petition, or may impose any terms and conditions that it reasonably deems appropriate as a condition of reinstatement or reduction of penalty.  The board will not consider a petition brought while the petitioner is under sentence for any criminal offense, including any period in which the petitioner is on court-imposed probation or parole.

Considering rehabilitation in modifying a petitioner’s probation, the board looks at the following criteria:

            The board looks to certain criteria in determining whether to modify a petitioner’s probation.  The board evaluates the rehabilitation of the petitioner by looking at (1) the nature and severity of the acts, (2) total criminal record, (3) the time that has elapsed since commission of the acts, (4) whether the licensee has complied with any terms of parole, probation, restitution, or any other sanctions lawfully imposed against the licensee, (5) if applicable, evidence of expungement proceedings, and (6) evidence, if any, of rehabilitation submitted by the licensee.[4]

            According to the California Board of Registered Nursing’s Recommended Guidelines for Conditions of Probations, the criteria that should be considered in determining rehabilitation for abuse of alcohol and other drug related offenses include, but are not limited to (1) successful completion of drug/alcohol treatment program (minimum of 6 months duration),  and (2) employment in nursing for a minimum of six months with documentation from the employer that the employer was aware of the previous abuse problems.[5]

Freedom of Information Act

The Freedom of Information Act does not require the disclosure of records that are “personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.”[6] 

Through the Board’s website[7], anyone can conduct a License Search for Registered Nurses.  Under this search, every disciplinary action and public record that is available relating to the individual nurse, will be found here.