You’ve Worked Hard to Become a Licensed Nurse, and You Are Now Facing Criminal Charges – What Should You Do?
There is no gut-sinking feeling like consistent hard work and dedication potentially being thrown out the window. You’ve made sacrifices to get through school, studied hard, and reached a major milestone upon receiving your nursing license. Unfortunately, one mistake has the ability to throw all of that out the window. This can be devastating, as the mistake is fleeting, yet the hard work and dedication is time-consuming and onerous. The good news is that with the right defense, you have a good chance of keeping your nursing license. The bad news is that you will have to overcome obstacles and the proper strategy to get there. Defending a nurse against his or her license revocation is significantly different from other cases. First, the lawyer must deal with two separate worlds. On one hand, you have the criminal complaint filed with the court by the District Attorney. On the other hand, the Nursing Board conducts their own investigation and is authorized to take action against your license even if you are not convicted in criminal court. Proper defense will strike a delicate balance, while considering the potential outcomes of both the criminal charges and the Board investigation. In addition, a good defense attorney will work arduously to keep your criminal record clean and your license from being revoked. This blog discusses the life of a nursing license disciplinary case.
Some of the most common nursing disciplinary cases arise from DUI or possession of illegal substances. This is both damaging and useful. First, it is damaging because the Board has an interest in revoking nursing licenses from those who drink and drive, as well as nurses who are potentially drug users. Unfortunately, the Board does not give the nurse the benefit of the doubt, and neither does the court. Many clients describe their DUI experience as creating disappointment in themselves. This is common among nurses because they hold themselves to high standard. Most nurses are not habitual drunks or drug addicts – they are simply human, and make mistakes. Coimbra Law Firm believes that an isolated mistake should not deprive a nurse of her ability to making a living doing what he or she loves. This is why we arduously defend nurses in both spheres of the case – criminal and administrative
Two Worlds: Criminal and Administrative
The criminal aspect of the case will be addressed in criminal court as either a misdemeanor or a felony, depending on the facts of the case. It is important to understand that the Board may begin their investigation as to whether or not to suspend or revoke your license simply upon learning there are charges against you. Nurses are typically surprised to hear that there may still be consequences even after they receive a successful outcome in criminal court. This can be frustrating, because the criminal aspect of the case is always an uphill battle. There are limited defenses to a DUI and possession charges in most cases. More often than not, the attorney’s best strategy is to provide mitigating circumstances showing why the nurse should receive a simple infraction or at least a reduction in the charge or charges. Mitigating circumstances include respect among the nursing community, being the financial source for your entire family, awards, lack of criminal record, etc.
The next hurdle will be defending the nurse against license suspension or revocation by the Board. The Board of Registered Nursing is the agency responsible for investigating cases involving registered nurses. The Board of Vocational Nursing and Psychiatric Technicians is responsible for investigating cases involving LVN’s. The nurse has a right to a hearing, where she may present evidence in defending against license revocation or suspension.
The Nursing Practice Act gives the Board of Registered Nurses the authority to investigate and take disciplinary action against nurses for unprofessional conduct substantially related to the duties and functions of nursing. Examples and definitions can be found in the California Business and Professions Code, as well as the California Code of Regulations. A good criminal defense attorney will argue that the nurse’s isolated mistake is not substantially related to the duties and functions of nursing. An additional hurdle is the fact that a California appellate court ruled that driving under the influence is sufficient for disciplinary action against a professional license. In Sulla v. Board of Registered Nursing, the court ruled that, “Because even a single instance of using alcohol in a manner that is dangerous to oneself or others constitutes unprofessional conduct by a physician, a single conviction for driving under the influence (an act that is necessarily dangerous to self or others) could support a disciplinary proceeding against a physician.” Sulla v. Bd. of Registered Nursing, 205 Cal. App. 4th 1195, 1207, 140 Cal. Rptr. 3d 514, 524 (2012).
However, the Board is given discretion based on the facts. A good defense attorney will understand how to differentiate her client’s case from Sulla. Although it is common for the Board to deny the nurse’s first attempt at preventing suspension or revocation, the Board is more likely to give the nurse relief after an appeal. In addition, the Board often prefers to negotiate a stipulated settlement, as opposed to holding hearings. A stipulated settlement available to nurses under investigation for DUI or drug possession includes a drug diversion program. There are several pros and cons to accepting a stipulated settlement. For one, successful completion means the nurse gets to ultimately keep her license. However, the Board does not make it easy. More often than not, conditions include submitting to random drug tests, no direct contact with patients, and informing the nurse’s current employer about the case. However, if the nurse is confident that she can comply for the stipulated term, she may keep her license after successful completion.
Getting the Board to concede on a drug/alcohol diversion program can be difficult. Every case is fact-specific, but an experienced defense attorney will understand how to spin the facts in the nurse’s favor. In addition, it is critical to retain counsel that understands how the criminal and administrative aspects work together. With your entire career and livelihood on the line, it is important to remember that your decisions during the investigative phase of your case will make all the difference.