In 2012, the California Court of Appeal will decide whether the Board of Registered Nursing can order an RN to serve probation because of a single DUI conviction. This appeal comes after our second successful petition for writ of administrative mandate in San Francisco Superior Court.
In 2010, the California Board of Registered Nursing filed an Accusation against our client alleging that the RN’s single, off-duty DUI is unprofessional conduct under Business and Professions Code sections 2761 and 2762. We filed a Notice of Defense as the RN’s attorney and requested an administrative hearing.
In 2011, the nurse and attorney Adam G. Slote appeared at an administrative hearing and presented evidence that the DUI was an isolated incident, and that our nurse client is a good RN who does not have an alcohol problem. The hearing was held before the Office of Administrative Hearings and an administrative law judge (ALJ) issued a proposed decision.
The ALJ’s proposed decision concluded that the RN’s conviction was not substantially related to the qualifications, functions and duties of a registered nurse under Business and Professions Code sections 490 or 2761(f). Sections 490 (a) and 2761 (f) authorize discipline based on a criminal conviction, but only if the conviction is “substantially related” to the qualifications, functions and duties of a registered nurse. The ALJ properly dismissed those allegations of the Accusation.
Unfortunately, the ALJ decided that the nurse’s DUI was unprofessional conduct under Business and Professions Code sections 2761 (b) and (c).
Section 2761 (b) defines unprofessional conduct to include use of “any controlled substance … or any dangerous drug or dangerous device … 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.”
Section 2762 (c) expands the definition of unprofessional conduct to include criminal convictions “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.”
We believe the ALJ was wrong because the Constitution protects an individual’s right to practice his or her profession unless a conviction evidences unfitness based on a rational connection between the crime and profession. Furthermore, Business and Professions Code section 490 (b) requires that a conviction be substantially related to nursing. Section 490 (b) states:
“Notwithstanding any other provision of law, a board may exercise any authority to discipline a licensee for conviction of a crime that is independent of the authority granted under subdivision (a) only if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the licensee's license was issued.”
Thus, we believe Section 490 (b) makes the “substantial relationship” requirement applicable to Section 2762. In other words, an incident in which a registered nurse uses alcohol in a dangerous manner is unprofessional conduct only if the incident is substantially related to nursing.
We appealed the decision of the Board of Registered Nursing to the San Francisco Superior Court by petition for writ of administrative mandate (also known as mandamus) in the spring of 2011. We prevailed. The Superior Court overturned the nursing board’s decision and order imposing probation on our client. Fortunately, our client did not suffer any consequences pending the writ of mandate proceeding because we obtained a stay order from the Superior Court, which stayed the decision of the Board of Registered Nursing pending the court’s ruling.
The Board of Registered Nursing appealed our win in Superior Court, and now the case is pending before the Court of Appeal. The stay order remains in effect. We will report on the Court of Appeal’s decision in the summer of 2012.
Editorial Note: We reported a similar case in 2010: Nurse With One DUI--Court Overturns License Revocation by California Board of Registered Nursing. This case is very similar. We prevailed in both cases, but the Board of Registered Nursing did not appeal the 2010 case.
Update August 2012: The Board of Registered Nursing prevailed on appeal. See RN Loses Single DUI Case Before Court of Appeal.
Adam G. Slote is an attorney with the San Francisco law firm of Slote & Links. Lawyers at Slote & Links defend California nurses, physicians and other licensed professionals.