California DUI and Nursing license. The Effect of a DUI conviction

June 15, 2016

DUI AND NURSING LICENSE

This article discusses The Effect of a California DUI conviction on nurses’ professional license.  Click on the links below to go directly to your topic of interest.

DUI AND NURSING LICENSE

Getting arrested for a DUI can be very frustrating especially when evidence of intoxication is subjective.  Often, the prosecution is simply based on the observations of an impairment by a police officer.  Trying to do a field sobriety tests when you are being watched by a police officer can often end with a DUI arrest, even when you are not impaired.  Even when the police is relying on blood or breath test results that are above the legal limit of .08% BAC (for California), it is not necessarily accurate because the breathalyzers and blood alcohol measuring devices are known to make errors.

The consequences of any DUI arrest can be very severe for anyone.  As a result of a DUI conviction, you can be fined thousands of dollars, be ordered to do community service, lose your driving privilege and even be jailed.  Lastly, a DUI conviction can result in a discipline if you are a member of a profession that holds a special license or a certificate.  For example, a doctor or any other health care professional can lose his professional license and his job when convicted of even a single DUI.

THE LAW FOR DUI AND NURSING LICENSE DISCIPLINE

A nurse can be disciplined even for a single DUI in California.  California Business and Professions Section 2762(b) and Business and Professions Section 2762(c) is the basis for prosecution of nurses by the disciplinary boards based on any criminal conduct.  The language of the code is very broad and does extend to alcohol-related misconduct to warrant discipline.  Here is the language of the statute:

In addition to other acts constituting unprofessional conduct within the meaning of this chapter it is unprofessional conduct for a person licensed under this chapter to do any of the following:

(b)Use any controlled substance as defined in Division 10 (commencing with Section 11000) of the Health and Safety Code, or any dangerous drug or dangerous device as defined in Section 4022, or 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.

(c)Be convicted of a criminal offense involving the prescription, consumption, or self-administration of any of the substances described in subdivisions (a) and (b) of this section, or the possession of, or falsification of a record pertaining to, the substances described in subdivision (a) of this section, in which event the record of the conviction is conclusive evidence thereof.

 

Note how subsection “(b)” allows subjective interpretation of the conduct by the disciplinary board.  An unprofessional conduct can be “use of alcoholic beverage…to extend that such use impairs ability to conduct with safety to the public the practice authorized by her license”.  In other words, if the board believes that a nurse’s drinking gets in a way of her job, she can lose her license.

COURT INTERPRETATION OF DUI AND NURSES LICENSE CONSEQUENCES

Recently, one California court interpreted California Business and Professions code section 2762 as “licensed nurse engages in unprofessional conduct when he or she uses alcoholic beverage to an extent or in a manner dangerous or injurious to himself or herself, any other person, or the public, or is convicted of a criminal offense involving the consumption of alcohol”.

The court dismissed appellant’s argument stating that this presumption cannot be refuted by a purportedly contradictory finding that the misconduct was not “substantially related to the qualifications, functions, and duties of a nurse,” as is required for discipline under other statutes. Further, the nurse in question (who caused an accident while driving with an alcohol level exceeding the legal limit) failed to show that nurses and doctors–who cannot be disciplined for a single incident of drunk driving–are similarly situated for equal protection purposes.

Even if such showing had been made, there was no equal protection violation under the facts of the case, where nurse also was found to have used alcohol in a manner dangerous to himself or others, conduct that would also support a disciplinary action against a physician.  (Basis for this opinion is Sulla v. Board of Registered Nursing filed April 19, 2012, publication ordered May 8, 2012, First District, Div. Five).

For a nurse or a doctor, it is extremely important to defend any alcohol related charges to avoid a conviction that can be later used to discipline the nurse or a doctor under California Business and Professional Code 2762.  As you see, even “use of alcohol that is injurious to herself” is a basis for discipline.  In other words, if a police officers find you intoxicated, he can site you for drunk in public   (PC 647(f)), which can result in discipline.   Despite the facts of the Sulla court case, no accident is required for discipline.

CAL BP 490 AND ITS EFFECT AFTER DUI FOR NURSES

In addition to California Business and Professions Code section 2762, a nurse can be discipline under California Business and Professions Code section 490.  Unlike California Business and Professions Code section 2762, section 490, requires a criminal conviction that must be substantially related to the qualifications, functions, duties of the …profession.  To avoid discipline under California Business and Professions Code section 490, you need to minimize the conviction by trying to get the best deal possible.

If you are a nurse or a doctor, you have to defend a DUI case, by plea bargaining to a lower level offense or by fighting your case to get an acquittal or a dismissal.

Other alternatives to a DUI conviction can be a wet reckless conviction or a conviction for an exhibition of speed.  If you are charged with drunk in public and are a doctor or a nurse, you must try to avoid a conviction by negotiating a dismissal in exchange for doing alcoholic anonymous classes or taking the case to trial.

 

Los Angeles DUI Attorney

 

(818) 921 7744  Call anytime to get a free consultation with Los Angeles DUI Attorney.

 

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