Sunday, June 24, 2012

How Does a DUI Affect a Nurse in California?

Nurses are trained to help people who are sick and need of help.  However, who is there to help a nurse when they get into trouble?  Attorney Matthew Ruff has been fighting for health professionals charged with drunk driving for over 22 years.  Unfortunately the state of California has little sympathy for nurses arrested for driving under the influence.  Indeed, they come down harder on them than they do Doctors.  The good news is there is hope to get out of this mess with the assistance of an experienced lawyer.  

For many it is the fear of the unknown that presents the biggest stress.  Therefore, I have put together a brief synopsis of the general laws relating to this topic and some information that will allow you to cope with your anxiety.  

The law in CA, as is the case in most jurisdictions, allows the licensing agency to discipline those who engage in  unprofessional conduct, including the misuse of alcohol and drugs.  A criminal conviction for VC 23152 can indeed result in the loss of a nursing license in many cases.  The statutes define misconduct pertaining to DUI as " anything that is substantially related to the qualifications, functions, or duties of a registered nurse".   The Board deems any alcohol related misconduct to be an act that warrants discipline.   But wait, don't panic, there must first be a conviction in Court for the criminal offense of DUI, drunk driving or driving while under the influence in order for this "presumption" of disciplinary action to kick in.  This is where a criminal defense attorney can step in and provide help.  Let's first talk more about the laws, regulations and rules that govern the field.  Matthew Ruff, a California DUI lawyer specializing in representing nurses in drunk driving cases, provides some background.

Like many other states, California has a licensing board that regulates and licenses nurses.   The main licensing body in CA is the Board of Registered Nursing which is a branch of the Department of Consumer Affairs.  Any person who wishes to become an R.N. has to be approved by the Board.  There are numerous ways the state can punish nurses who are arrested for a DUI.  In addition to the criminal sanctions imposed by the courts, the state can and often will take action against a person who possesses a professional license such as a nurse or other medical professionals.

The process starts with a letter from the Board of Nursing that offers the offender an opportunity to participate in a diversion program that will keep the incident off the licensee's record.  The letter will request that the individual contact the Board to discuss the case.  Care should be taken when deciding whether to take part in a diversion program because not all nurses who are arrested for DUI are good candidates for the program.  For example, if the offense involved a low blood alcohol level, no accident and there is no history of discipline or past convictions for any criminal acts then diversion may not be a good alternative.  If diversion is declined the state will refer the matter to the enforcement unit that will conduct its own internal investigation of the case and determine if a petition to suspend or revoke a license is appropriate.  In one recent case that attorney Ruff handled for a R.N. In Redondo Beach, he was able to guide the accused through the process and avoid any action against the nurse.  In Court which was decided in Torrance, the lawyer negotiated a disposition for a reduced charge and the driving under the influence allegations were dismissed.

One type of DUI that has particular significance to nurses is when the offense relates to abuse of prescription drugs.  As you might expect the Board considers these kinds of  cases much more serious than those that involve alcohol only.  Hiring an attorney who knows the nuances of drug impairment and California Vehicle Code 23152(e) which is the statute that pertains to driving while under the influence of drugs alone, is very important.  In one recent case attorney Ruff represented a registered nurse who was arrested after a collision on the freeway in Torrance CA.  A blood test revealed the presence of high amounts of opiates among other prescribed medications.  The case presented challenges due to the accident and her occupation.  Nonetheless, the attorney negotiated a disposition for reckless driving (Vehicle Code 23103) which put her in a more favorable position to deal with disciplinary proceedings that followed.  A reduction of the criminal charges to something other than DWI will almost always benefit the client with regard to license consequences.

So, that leads us to the crucial question many people come here for:  Can a nurse lose his or her license in California for a DUI?  The answer is surprisingly yes, even for a first tim offense.  The case law is against those who choose to not fight the DUI charge in Court, plead guilty or no contest and later challenge a Board suspension order.  For example, in one noteworthy case a well respected registered nurse was convicted for a DWI for having a blood alcohol level of .16 BAC.  He presented letters and testimony that he was a great nurse with no record of discipline.  Despite this, the Board suspended his nursing license and he appealed, the Court sided with the Board of Registered Nursing.

Any attempt to suspend a nursing license must start with the initiation of a disciplinary process.  The process is regulated by various California State Laws such as that found in Business and Professions Code section 2762,  which provides in pertinent part that a licensed nurse engages in unprofessional conduct when he or she uses alcoholic beverages "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.   According to California DUI Attorney Matthew J. Ruff, the Board will look closely at the police reports in any given case to determine if the conduct violates this law.  One way a DUI can implicate the relevant code is if the licensee's blood alcohol level was extremely high.  In california the law dictates that a BAC of .15 or higher should be construed as an aggravated offense.  A blood alcohol level is usually determined from a breath test or a blood test taken after the arrest.  However, Ruff explains that many tests can be successfully challenged on the grounds that the official standards were not followed or that the individual was below the per se level of intoxication at the time of driving, a theory referred to as the "rising blood alcohol defense".  Indeed, in one recent case, attorney Ruff related how he was able to have the DUI charge lowered for a client in nursing school due to violations of the testing protocol known as "Title 17".  One thing remains clear, if the BAC levels are not fought, the accused faces a difficult road as far as the state licensing board is concerned.

In one recent California Appellate Court case a Judge ruled that even a first offense DUI where the nurse had a blood alcohol level of .16  and was involved in an accident was enough to trigger a suspension that was brought by the licensing board or registered nursing.  The Court found that the facts of that case, notably the conviction for Vehicle Code section 23152, were substantially related to the duties and functions of a nurse.  What was interesting in that case was the fact that the registered nurse had no prior history of drunk driving or any alcohol abuse, no criminal record and was highly respected by her peers. 

So where does this leave the average nurse that has the unfortunate luck to have been arrested for a DUI in California?  According to many attorneys who defend nurses charged with driving under the influence and other related criminal offenses, "do not plead guilty or no contest to any DUI without first consulting with an attorney".  Particularly in cases where a collision was involved or where the breath test reveals a blood alcohol level anywhere above a .14%.  The authorities seem to focus on these cases but any DWI arrest can trigger an investigation which will lead to a letter asking for information about the incident.

If the nurse pleads guilty or no contest in court, or fails to challenge the DMV action and there is any finding that a DUI was committed than the state can and will take action to suspend or revoke the person's nursing license.  Therefore, any health care professional, R.N., LVN, RPN, or anyone thinking about becoming a nurse in California,  facing an upcoming court date should proceed with caution.

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