Recently, our law firm has received a large influx of inquiries for service from registered nurses and physical therapists. The cause for this influx appears to be an abrupt change in the way the Board of Registered Nursing (BRN) and the Physical Therapy Board (PTB) are treating first-time, driving under the influence (DUI) convictions by licensees. Up until recently, both the BRN and the PTB had routinely issued citations or – at worst – a public reprimand or reproval for the conviction. This habit reduced the need for licensees to retain counsel to protect his or her license, as what was being offered to resolve the matter would likely not impair the nurse or physical therapists ability to work or continued to be employed.
However, the abrupt change has led to attorneys for the BRN and PTB to file actual disciplinary charges agaisnt these licensees in the form of an Accusation. And within the Accusation, the BRN or PTB is threatening probation, suspension, or even revocation on a first-time DUI offense. This obviously is a cause for concern for a licensee, especially one who is not attuned to the disciplinary guidelines or administrative hearing process. It could even result in immediate resignation and capitulation on first seeing the Accusation and charge.
However, do not give up hope! There is actually grounds to fight the discipline being sought.
Nature of Criminal Conviction
To start, please note that the licensing agencies (1) have jurisdiction to discipline you for almost all DUI criminal convictions and (2) have wide discretion in meting out that discipline. This is – most of the time – regardless of the type of creative plea you and your defense counsel are able to get. That is because case law states that a DUI conviction is substantially related to the professions of the healing arts.
Thus, the case that the BRN or PTB need to make against you to fashion discipline is quite simple. They introduce the criminal conviction into the record and that is it.
Thereafter, the licensee has to defend themselves. But the licensee cannot defend themselves by attacking the legal or factual basis of the conviction at an administrative hearing, as this is an improper collateral attack. If you disagreed with your criminal judgment at the time, you had the opportunity then to appeal the decision. But if you chose not to exercise those rights, you cannot now collaterally attack the decision in the administrative case. Thus, the conviction is conclusive evidence the Board may take disciplinary action against your license.
So, pretty much an open-and-shut case, one could presume. Not entirely.
That is because of two factors. One is the licensing agencies’ Disciplinary Guidelines. The law requires all licensing agencies in California including the Boards to issue Disciplinary Guidelines. These Disciplinary Guidelines are similar to Sentencing Guidelines in criminal law. They provide for the proposed terms of license discipline that the licensing agencies deem appropriate for particular violations of the laws relevant to their practice. The Disciplinary Guidelines typically provide minimum, maximum, and recommended penalties for various violations. While not mandatory, the Disciplinary Guidelines are the starting point.
The second factor goes into how one can move the starting point. And that is either by attempting to reduce the discipline through evidence of rehabilitation, mitigation, and good character or being subjected to an enhanced discipline due to aggravating factors. Common aggravating factors in DUI cases are repeat offender, excessively high blood-to-alcohol concentration (BAC), causing property damage or bodily injury, etc.
What are the BRN and PTB Doing?
Well, under the BRN and PTB, the starting point on discipline for a first-time DUI has always been public reprimand. In fact, the PTB actuall permits a citation-in-lieu-of-discipline within its Disciplinary Guidelines. And although the BRN’s Disciplinary Guidelines say that its minimum discipline is a stayed revocation with 3 years’ probation, we know that is not the case. Rather, the plurality of first time offenders with the BRN get public reproval.
Recently, this starting point changed. Now, both licensing agencies are seeking probation or more. Their counsel, even in the face of exemplary mitigation evidence, is not being permitted to accept a settlement offer of less than probation.
While that may be the case, their intransigence has not caught on with the Office of Administrative Hearings (OAH). Rather, many licensees that we represent have had no choice but to go to hearing to get the former starting point result of a public reproval or public reprimand. And once there, the administrative law judges (ALJs) themselves are puzzled as to why the matter couldn’t have been resolved without hearing at the former starting point. So far, as long as our client engages in appropriate rehabilitation and obtains evidence of mitigation and good character, the ALJs are being swayed. But what is even more noteworthy is that these lighter sentences by OAH’s ALJs are being consistently adopted by the BRN and PTB after the fact.
In conclusion, if you are a nurse or a phystical therapist who recently received an Accusation from your licensing board seeking revocation after a first-time offense for DUI, get the help of an administrative law attorney. They should be able to help you preserve your license with little to no interference with your ability to work. Keep in mind that it may require you to engage in extensive acts of rehabilitation and mitigation. Furthermore, that an administrative hearing may be unavoidable. But in the end, it will be worth it, as your license will be maintained and the discipline imposed will be consistent with other health care practitioners across the state.