Nurse disciplined for decade-old offense

By | 2021-05-07T15:12:15-04:00 August 18th, 2017|Tags: |26 Comments

I received an interesting email from a nurse who recently graduated from her nursing education program but who was not permitted to sit for the NCLEX unless she agreed to be reprimanded for a DUI from 11 years ago.

She did pass the NCLEX, but now has a discipline against her.

Boards of nursing are becoming increasingly concerned about licensees’ conduct when they are not working. Most, if not all, state nurse practice acts include “unprofessional conduct” as a basis for discipline. The definition of unprofessional conduct by a board of nursing can vary from state to state and often is found not only in the nurse practice act itself, but also in the act’s rules or regulations.

Definitions of unprofessional conduct in an act or its rules are easy to spot and include statements such as “engaging in conduct likely to deceive, defraud or harm the public” or “engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public, as defined by rule”. These definitions are clearly broad-based and allow a board of nursing to apply its definition not only to unsafe practice while at work but also to behavior while off duty.

Boards of nursing are becoming increasingly concerned about licensees’ conduct when they are not working.”

Nurse disciplined in similar case

Indeed, in a 2012 California case (Sulla v. Board of Registered Nursing, 205 Cal. App. 1195 (4th District), a nurse’s DUI conviction resulted in a discipline by the board based on the nurse practice act and rules language allowing discipline for unprofessional conduct when “using alcohol in a dangerous way” (to self or others) and an “alcohol related conviction.” The nurse’s license was placed on probation for three years.

The nurse filed an administrative review of the board’s decision in court. He argued the California definition of unprofessional conduct — demonstrating an unfitness to practice the profession — could not be used as a basis for his discipline because there was no nexus between his misconduct and an unfitness to practice nursing.

The reviewing court entered a judgment in favor of the nurse, opining the nurse’s conduct and subsequent conviction was “not substantially related to the qualifications, functions or duties of a nurse.” The board appealed the decision to the appellate court.

The appellate court disagreed with the reviewing court, holding there is no need for a “nexus” or relationship between a nurse licensee’s fitness to practice nursing and behavior for which a nurse is convicted.

The decision underscores that, once licensed, a nurse is considered a “professional at all times” (Kathleen Russell and Lindsay Beaver, “Professionalism Extends Beyond The Workplace”, 3(4) Journal of Nursing Regulation (2013), 15-18).

Some nurses may think this decision is not applicable to them because it was decided in California or because they do not drink alcohol. However, this decision potentially opens the door for boards of nursing to initiate disciplinary proceedings against nurses for other types of “unprofessional conduct” when a conviction occurs, such as shoplifting, driving on a suspended license or not revealing facts required to be disclosed when applying for a driver’s license.

Nurses also need to keep in mind that a conviction of any crime, whether a felony or misdemeanor, is a basis for discipline according to state nurse practice acts.

The decision underscores that, once licensed, a nurse is considered a ‘professional at all times’.”

In the reader’s submitted situation, the board’s authority in making its decision is most likely not a problem since it is assumed the board’s decision complied with the state nurse practice act, its rules and regulations and other applicable law. However, nurses might question why the board disciplined the nurse licensee for something that occurred 11 years ago when the reader was not in nursing school or not licensed as a registered nurse.

Is this fair? What evidence did the board have that resulted in a reprimand for something that occurred 11 years ago? Was a current drug and alcohol assessment ordered by board before making its decision? Should there be a limit as to how far back a board can go and use a conviction then to discipline the individual when applying for a nursing license now? What are your thoughts?


Courses Related to ‘Legal and Ethical Issues

60097: Everyday Ethics for Nurses
 (7.3 contact hrs)

This course provides an overview of bioethics as it applies to healthcare and nursing in the U.S. It begins by describing the historical events and forces that brought the bioethics movement into being and explains the concepts, theories and principles that are its underpinnings. It shows how ethics functions within nursing, as well as on a hospitalwide, interdisciplinary ethics committee. The course also explains the elements of ethical decision making as they apply to the care of patients and on ethics committees. The course concludes with a look at the ethical challenges involved in physician-assisted suicide, organ transplantation and genetic testing.

CE548: Protect Yourself
 (1 contact hr)

Nurses have an obligation to keep abreast of current issues surrounding the regulation of the practice of nursing, not only in their respective states, but also across the nation, especially when their nursing practice crosses state borders. Because the practice of nursing is a right granted by a state to protect those who need nursing care, nurses have a duty to patients to practice in a safe, competent and responsible manner. This requires a nurse licensee to practice in conformity with their states statute and regulations. This course outlines information about nurse practice acts and how they affect nursing practice.

About the Author:

Our legal information columnist Nancy J. Brent, MS, JD, RN, concentrates her solo law practice in health law and legal representation, consultation, and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues and has published extensively in the area of law and nursing practice. She brings more than 40 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. 


  1. Lorene August 28, 2017 at 3:19 pm - Reply

    I have been an LPN for 5 years and I diverted, self reported and completed out patient treatment one year of after care and counseling and continue to go to a nurses support group. I am complying with all provisions in my monitoring agreement. I reside in NV and have completed all courses for my RN. I am awaiting clinicals because it is on online bridge program. My monitoring agreement is for 5 years. My question is once I become an RN would I rightfully be able to request a decreased monitoring under my new license? I do not in any way dispute my actions and I have worked very hard on my sobriety and have plans to specialize in my career as a CARN (certified addictions Registered Nurse). Through my experience I have seen the need for education in substance disorder among healthcare. One issue I will be facing is with most of these programs it states no restricted or encumbered license.

  2. Kaye English August 28, 2017 at 4:23 pm - Reply

    Seems funny that nurses (and who are nurse? the public does not know. Would that be RN, LVN, CNA?) are held to an unbelievable standard. I am for high professional standards, but I am not for gestapo rule, meaning you are a prisoner to your profession. No one should drink and drive, ever. But policemen, lawyers, judges. preachers, priests do not lose their status when they are found drunk. Matter of fact they can be involved in a lot of questionable behavior and still work. Doctors, lawyers and the others named (who incidentally have much more authority, responsibility and make a lot more money than nurses) The average pay for RNs in Houston is $60,000 to $75,000 a year Rent is minimally $1000 per mo. And when a nurse has the license on hold, or suspended, even temporarily, this means now they are hardly able to work, if at all. There is an injustice here. DUI should affect a nurse the same as it affects congressmen, city officials, lawyers and doctors. They pay a fine, go to jail, lose the driver license, but not their ability to work. I mean the public doesn’t know a lot: I can tell you some. Nurse are not supposed to wear perfume, or fake nails or nail polish or jewelry; nurse are “pulled” to any part of the hospital during any part of a shift, even to areas they have no experience in. The nurse cannot refuse an assignment (unless you have a preprinted form saying your assignment is outside of your ability, you still have to do it; this is simply a statement saying you told administration of your limitations) If nurse are working during a hurricane or other dangerous conditions, they become prisoners in the facility with no one making plans to get them to their homes and families or to bring in relief staff. I mean $60,000 does not make anyone, including nurses, willing to give up their homes and children. Homecare nurses have not had a pay raise since the late 1990s. Generally they are paid $50 per visit and $100 for an admission.TThe pay is unreasonable. They expect a cell phone and do not pay for it, do not pay tolls or mileage or gas allowance or do not pay if you draw blood and have to drive and find a lab.. that is done free…I mean, I realize that this is way off the intended discussion path, but the idea here is to say nurse are mistreated, underpaid and abused by and in their profession. Now we are even taking their private lives to the professional part of their lives. Some employers are now looking at our credit report. Yes we want upstanding people in our profession, we want high morals, but can we separate the good nurse, the professional nurse and the good care given from an incident in our private off duty lives? When do we stand up and say “enough”? Are there boundaries separating the profession of nursing from the person? We are people who have a profession called nursing. Must your entire life be defined by a college degree or profession? Really?
    Do you have to be politically correct (by whose definition of correct) all the time or is there a time to step out and speak up for truth and right and fairness; or are we so weak we are willing to be prisoners for $5.00 an hour (which is what $60,000 becomes when divided over 24/7). We are mistreated because we do not support each other, we just “follow the rule” and “let it happen”. Me too.

    • Laura October 1, 2017 at 9:02 pm - Reply

      Well written – I agree!

    • Judy Reid October 10, 2017 at 2:16 pm - Reply

      I totally agree, very well phrased!

    • Sarah November 3, 2017 at 12:56 am - Reply

      Very well written. I couldn’t agree more!

  3. Crystal C August 30, 2017 at 7:48 pm - Reply

    We care about everyone else but no one cares about us or our profession.

  4. Meg A. August 31, 2017 at 1:01 am - Reply

    I agree with Kaye that we are, as a profession, held to even higher standards than lawyers, and yes, even MD’s. If they are going to hold us to ridiculously higher standards, than they must do so equally with other professions as those mentioned. I had to foreclose on my house during the 2009 banking crisis, because my hospital cut 120 employees hours from full-time, to part time, and I got behind in payments. I was also the single mother of a disabled child.I applied for full-time employment at a hospital near me, had immaculate references from my 26 year career as an RN, but was denied employment because this particular hospital was now checking credit reports before hiring. When I asked HR why, they said alot of hospitals are now doing this “because it speaks to the nurse’s character”. I was astounded.I guess then that the pediatrician who was on call to the ED one night I worked, and showed up drunk still had his job. The hospital did nothing, no call to the license board, nothing. I discussed it with the Nsg Supervisor, who told me that she would report it, but “nothing would be done”, and she was right. It was only when the parents of the child being treated placed a call to the state medical board, that finally an inquiry happened.He was let off with a slap on the wrist and only a 2 week suspension of his admitting privilages. My opinion is if they do this with nursing, they must hold other professions to the same strict standards.

    • Jonathan Glass RN October 2, 2017 at 11:26 am - Reply

      Wrong reply button, comments related to post by Mary. For Meg, the AMA is one of the most powerful political lobbies.

  5. Linda Annarino September 11, 2017 at 11:24 pm - Reply

    My question is that I have been disabled since January 18, 2013 due to my advanced arthritis and now in every joint but I would like to work at home like reviewing charts or something and I did contact the Nursing Board of Nevada and they sent me information so that my primary physician could write a letter. Most of the information needed is about my condition and the last statement is about my limitation’s and impairments. My primary physician when I was there in June informed me that she would have to state that the medications that I am now taking which are Norco 5/325mg and Gabapentin 300 mg would affect my mental ability to practice. I have spoken to other individual’s and they have informed me that this is nonsense and I would like to clarify this in writing and if possible you could send it to me per my address. I am now looking for another primary since every visit is just sitting there working on the computer and what happened to being a doctor. Thank you very much.

  6. Maria Deighton September 12, 2017 at 6:07 am - Reply

    My biggest question is that of timing. In the example, the nurse was apparently being punished for actions which occurred before her entering the nursing profession. Things happen before you mature sufficiently to be a professional. Nothing I did in my youth should impact my ability to act in good conscience, respectfully, maturely, and professionally in my mid thirties. As to the ability and necessity of licensed staff to be held to a code of conduct by their Board of Nursing, I am in full support. Other professions utilize stringent requirements for employment which helps to protect the professional, employees, and the public who cannot know each person’s commitment to excellence in their work. As long as the nursing, medical, and other ancillary fields are regulated by different organizations, there WILL be an aura of unfairness to any actions taken against members assessed of similar behaviors.

  7. Telisha September 12, 2017 at 6:44 am - Reply

    I agree with this article… And especially the ending of we do not support each other but follow the rule and let it happen.

  8. Sharon October 1, 2017 at 2:28 pm - Reply

    Seriously? We are reprimanding a person for an act of “misconduct” that happened ELEVEN years ago! Before they were licensed, or even attending a nursing program. Why? Is there more to this story than is being presented here?
    This is an issue that should be addressed during the academic application process for nursing education. Not after one has completed the program/degree.

  9. Jonathan Glass RN October 2, 2017 at 11:17 am - Reply

    Welcome to slave labor…This type of treatment begins in nursing school or even during admission and continues into the workplace. Nurses have been abused since the beginning of the profession and often abuse fellow nurses themselves. Classic behavior of persecuted groups. Why does a buy off raise prevent unionization? I became an RN at age 45 after a business and management career not knowing the reality of nursing but seeing it from a different perspective. Top of the class, six years in trauma ICU and more. Unbelievable level of hard work and legal liability. As long as nurses cannibalize each other nothing will change. Unionize!

  10. Marcia October 2, 2017 at 1:51 pm - Reply

    This is too much for me to swallow. This is crazy and I fell as though this young lady’s DUI shouldn’t have come into question at this particular time. There needs to be some type of review into the Nursing Regulations and it should be revised to take into consideration of the new times in this country. The laws back then should be updated to the changes in the world that is going on now. Every thing seems to be punitive instead of educating, training and helping nurses with their issues whether it’s behavioral or substance abuse. We need new and updated regulations and it needs to be not so estrigent that will affect your ability to work or get another job. We already have a shortage in Nursing and we need everyone who desires to come into this profession.

  11. Terry Lazzaro October 3, 2017 at 12:19 am - Reply

    11 years ago, it’s a joke and stupid. Not only are they on probation for 3 years but they are required to be involved in the alcohol/substance abuse prorgrams for 3 years. I have a colleague on probation for a DUI 14 years a different state and she is not an alcoholic. It’s a travesty , this regulation needs to be changed , there is no purpose to this. Being assessed by a therapist then a decision from the BRN should follow. The California BRN has major issues any how, takes them two to three years to come after an RN who was reported as unfit to practice while on the job. In the mean time the nurse is left to move around to other jobs for three years. The entire system is not acting in the patients best interest or the nurses by using a 14 y/o DUI to cause havoc in her life.

  12. Layo October 6, 2017 at 4:19 pm - Reply

    I cannot belief this is happening in this century.Your past of 14 years should not be used against you at this 20th century.Nursing board need a to up date there policy.This is unheard of.Probation for DUI is 3 years, not 14 years.Nursing Board needs to get their stuff together.

  13. John Smith October 16, 2017 at 4:54 am - Reply

    The board should be investigated to see how many of them are Mormon. The article left out the details of the DUI. If it was just a .08-.11 BAC with no accident or children then that is complete bull crap. I would have appealed the hell out of that. If the danger to others was higher such as having children in the car or an extreme, that might be different. Did the person respond well to police, were they aggressive, could they pass the physical test? I had a DUI 12 years before my board meeting in AZ. I went through hell. I only blew just above the legal limit with little signs of intoxication in the physical test. I had to wait 6 months. They had a packet on me that included nearly every interaction with police officers without any criminal activity. They go into your work history and pull your HR records. I was approved by each and every member at my meeting. In AZ I have seen RN’s with multiple DUI’s get their license but each case is different. I think it was more to scare me. I have heard horror stories of California’s board. Their scope of practice also severely limits NP’s which shows even more they are over regulated.

  14. Dannie December 18, 2018 at 6:36 pm - Reply

    Great. I graduate RN school in April 2019, and I have an expunged Misdemeanor DUI. It’s 12 years old, I was so weeks passed 19 years old…. thismakes me very nervous as I live in CA and backing an RN is mine and my daughters meal ticket. Unfortunately, I blew .11 and had gotten into an accident. No one as hurt or else it would have been a felony and I would not have been able to expunge it. Great….

    • Dee January 3, 2019 at 6:43 pm - Reply

      I thought if your dui charge is expunged, it would be then off your record? I’m dealing with this now myself. I have a PBJ for a dui from 12 years ago & am working on having it expunged, but I thought that would mean it’d be off my record? I was pulled over & barely blew over the limit & passed the field sobriety test, but the state wanted to make money off me & took me through the whole charade. I’m not quite through with my BSN yet (I graduate in December), but if it’s expunged, it’s supposed to be removed off your record, right? I’m so nervous now after reading this article & these comments:( All this hard work can’t be for nothing due to something that happened in my early 20’s. Can it?

      • nicole May 10, 2020 at 7:25 pm - Reply

        Curious how your situation ended? I just got accepted into a nursing program with a DUI 9 years ago.

  15. Tatiana A. McGlynn December 28, 2018 at 8:21 am - Reply

    where can I find info of how a charge, conviction in one state prior to applying to a nursing program in another state affects the nursing student?

    if a DWAI becomes such a problem to obtain an RN licence what other majors are recommended when your BSN is almost complete?

    • Heather Cygan December 28, 2018 at 2:31 pm - Reply

      I would seek confidential advice from a legal nurse attorney who can give you specifics on your case. You can find one in your area here:

  16. Leona January 12, 2019 at 5:24 pm - Reply

    I agree 100% with Kaye. I add why didn’t the nursing school inform her it would likely be a problem when she finished and applied for RN licenses. Why, the school made a lot of money from her attending and care nothing once she was done. They wanted the money. She might would have changed her choice of careers.

  17. Pesry Brown January 29, 2019 at 6:22 pm - Reply

    Many states also have laws which restricts regulatory agencies from moving on their own motion, which many have statute of limitations on prior violations ” as long as it is declared”.

  18. Gwen October 22, 2020 at 12:18 am - Reply

    The California Board of nursing give you probation are you always required to meet those probation requirements to get your license back. Or does the probation drop after so many years? There any circumstances that would relieve you from the probation requirements? My complaint and probation was given about 12 years ago I surrendered my license and have done nothing to get it back cents but I’m ready now to look into getting it back. I ran into one problem I am disabled and unable to fill the requirement that requires you to work 24 hours a week for six months. I want to get my license and work on my own as a legal nurse that doesn’t require a physical need only mental. Please help

  19. Sarah February 22, 2021 at 8:27 am - Reply

    I just finished LPN school in Pennsylvania, they are making me complete all of this stuff for money! For 3 years I have weekly drug tests, can’t be a supervisor, can’t work at an agency, and I have to attend a nurses group and Aa, every week! It’s all about money! I had a DUI 6 years ago! Nothing since…so I’m warning you . Pennsylvania won’t let me sit for the boards until I am in this program 4 months.

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