Professional Consequences of a Nurse Convicted of DUI

Years ago, a licensed nurse who suffered a first-time DUI would not suffer any professional licensing consequences with the California Board of Registered Nurses (“the Board”). However, the nurse may have been required to submit a copy of the police report and submit a statement explaining what he or she was doing to avoid a DUI in the future.

This generally remains the law today, but it has become increasingly common recently for the Attorney General to institute a formal disciplinary action against the nurse charged with DUI where the circumstances are considered aggravated, i.e., injury-causing accident or a high blood alcohol content (BAC).

This is so because the circumstances may suggest an alcohol dependency problem for the nurse and if confirmed, the Board may require the nurse to undergo a psychological evaluation, a physical evaluation, random urine tests and substance abuse rehabilitation. The Board may also demand that the nurse take a leave of absence from work.

To understand how and why the Board may do this, it is good to know where such authority arises. There are six code sections to know. First, Business and Professions Code § 2750 gives the Board the jurisdiction to discipline the licensee under the Nursing Practices Act.

Second, Business and Professions Code § 490 provides that the Board may suspend or revoke a license on grounds that the licensee has been convicted of a crime substantially related to the qualifications, functions, or duties of the profession.

Usually, a conviction of a non-aggravated first-time DUI has not been considered to be substantially related and will not result in an accusation before the Board if the licensee’s BAC was below 0.15%. However, one should review Sulla v. Board of Registered Nursing (2012) 105 Cal. App. 4th 1195, a case where a “highly respected” nurse sustained a conviction for a first-time DUI involving a BAC of 0.16% and a single-vehicle accident with a center divider. In this case, the administrative law judge did not find discipline was appropriate under the most common grounds, but did impose discipline under Business & Professions Code §§ 2762(b) and 2762(c) based on a finding of “unprofessional conduct.”

Third, Business and Professions Code § 493 provides that the record of conviction of the crime is conclusive evidence of the conviction, but the Board may 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.

Fourth, Business and Professions Code § 2761 provides that the Board may take action against a licensee for unprofessional conduct under (f), which includes a conviction of a felony or any offense substantially related to the duties of a registered nurse. Section 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.

Fifth, under Business and Professions Code § 2762 the Board has the authority to suspend or revoke a license for unprofessional conduct 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.

Sixth, and last, the Board has the power to act under Business and Professions Code §§ 125.9 and 148 to issue a Citation Order, which can carry a fine up to $2,500 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 become part of the nurse’s permanent record and will be disclosed to the public on request for a period of three years under California Code or Regulations § 1435.15.