In April, 2015 a California Registered Nurse had her license revoked as a result of a DUI for Ambien when all she should have received was a citation and fine from the BRN. While the Accusation and Revocation Order are public documents and you and anyone else can find them on the BRN’s website, attached to this nurse’s license, I am not comfortable outing her on my blog, so I will provide only non-identifying facts of the case.
I include all of the facts of this RN’s arrest, conviction, disclosure to the BRN, Hearing before the BRN and result because I want you to see what happens when nurses attempt to handle these types of cases on their own, without an attorney.
This all could have turned out so differently for this nurse. Had she had an attorney representing her at the DUI level who understood how a DUI for medication would impact her RN license, she may have been able to get a reduced conviction. Had that same attorney represented her with the Disclosure to the BRN, it is very likely that this nurse would have only received a citation and fine against her RN license from the BRN. Even if an Accusation had been filed, our attorneys would have been able to convince the Judge that this client should be able to keep her license on probation. How do I know? Because we have represented thousands of DUI clients, handled their disclosures and represented them before the BRN and you know how many of our clients have lost their RN licenses for a DUI? Zero. Not One. Not Ever.
But what about the cost? Didn’t this nurse save a ton of money defending herself? Had she retained us for the DUI and the Disclosure, she would have spent $5000.00. Had she needed to retain us for Accusation representation (many of our clients don’t), she would have spent another $4000.00. So, she would have spent $9000.00 total at the worst-case scenario to defend herself and would have owed the BRN some fines of a few thousand, and that is a substantial amount of money.
Have a look at what she needs to spend now: To retain us to get her license back, she is looking at $7000.00 for a Petition of Reinstatement. She hasn’t worked as an RN for 2 years and needs to wait another 2 before her license is given back, so her income has drastically reduced, probably by close to $100,000.00 over the entire 4 years. When she does get her license back, she will be on probation because the BRN doesn’t trust her, so she will have to pay for testing for 3 years at a total cost of $15,000.00 to $18,000.00. On top of that, she still has to pay the BRN back the $6405.00 in fines, which we would have been able to reduce. Total cost of not hiring a lawyer is $124,105.00… that makes $9k look like chump change.
That’s enough about us and what could have been, following are the factual details of what actually occurred.
DETAILS OF THE ARREST The nurse was arrested on May 31, 2011, at about 5:30 p.m., on state highway, California. Respondent was driving westbound, and a highway patrolman followed Respondent for a time, and saw her weaving "all over the highway." At one point, she completely crossed the center line, and then swerved toward the other side. The patrolman activated his red lights, she did not stop promptly and continued driving west at about 40 miles per hour, and then she suddenly pulled over. When he contacted Respondent, the patrolman saw that she was moving slowly, and was having trouble understanding what the patrolman was saying. When she spoke, she did so in slurred sentences, with her eyes closed. When told to leave her car, she had to hold onto it for balance. When questioned by the patrolman, Respondent denied that she had been drinking. She did admit to having taken Ambien. Ambien is a Schedule IV controlled substance, being a non-barbiturate hypnotic. She had a prescription bottle of the drug in her car and the prescription label indicated it had been filled at about 4:45p.m. that day, at the Walgreens located about 45 miles from where she was stopped by the patrolman. Although the prescription indicated that she was to take one pill before bedtime, she told the patrolman that she had taken three or four of the pills in the morning. However, the patrolman counted the pills in the bottle, and found that eight of the 30 pills were missing. When the patrolman administered field sobriety tests, Respondent failed all of them. When Respondent was later examined at the Central Receiving Facility, she stated that she had taken only one of the pills for a headache, and that she has been taking Ambien for 20 years because of insomnia. At some point, Respondent told the patrolman that she had not slept for four days, and that her last sleep had been for one hour during lunch. She also stated she had started driving at work, and was going home. DETAILS OF THE BRN HEARING Respondent testified that on the day of her arrest she had worked as the supervisor of an operating room. She had the prescription for Ambien filled at the Walgreens. She stated that she picked the prescription up on her way home from work. Later she stated that she had gone home before driving to pick up the prescription. Complainant introduced evidence that the Walgreens was more than 50 miles east of Respondent's home and that she had to drive over the Highway through often mountainous terrain to go to get the Ambien. She then drove back from Walgreens, for about 45 miles to the place where she was arrested, which in turn was nearly nine miles from her home. During the BRN hearing, Respondent attempted to explain that the Ambien pills were missing from the container by saying she had left the bottle on the passenger seat, and must not have closed it tightly, because some of the pills escaped confinement. She stated she was trying to pick them up when she went off of the road and that she hit a fence. There is no evidence in the police report to support this claim; she did not tell the patrolman about the lost pills. The hearing in this matter followed the Board's action of setting aside a default decision it had made against Respondent in February 2014. In February 2014, Respondent sent a letter to the Board asking to have the default set aside, claiming she had not received any of the Board's mailings prior to the default because someone was stealing her mail. That story was the subject of cross-examination of Respondent, and Respondent's credibility was damaged by her answers on that topic, especially because she admitted to signing the return receipt that accompanied service of the Accusation. She then testified that she must have lost the envelope and materials. In her February 2014 letter to the Board, Respondent described some of the events leading up to her arrest. What she told the Board then had no resemblance to the information in the arrest report, nor to the version of events provided by Respondent during the hearing. For example, she wrote that she had worked a long day and gone home, and took a tablet of Ambien to help get some "much needed sleep. l've taken the tablet before and know how it affects me.'' She stated she had changed into sweats, and then her sons called her, telling her of their plan for a surprise visit. Thrilled at the prospect of a visit, she claims she decided to go out for some groceries, but "unfortunately forgot completely about the tablet ... and set out to go to the local store. Soon after I left the house I was stopped by a patrolman ...." According to the arrest report; Respondent was wearing nursing scrubs and tennis shoes when she was arrested, not sweats. Also, during the hearing, Respondent claimed that her boyfriend wrote the letter for her, and that she did not read it carefully before signing it and sending it to the Board. Respondent testified that she has not worked for approximately two and one-half years due to problems with her neck, and that she had hurt herself moving large patients. She has tried to get part-time work, because she is not up to full-time work, and to being constantly on call. She stated she is current with her continuing education. At another point in her testimony, she stated that that she suffers from chronic insomnia disorder. She stated she regularly attends church and participates in church programs to help others. JUDGE’S DECISION FOLLOWING HEARING Respondent's credibility suffered in the hearing from the many inconsistencies between her testimony, her prior statements to the Board in her letter regarding her default, and her statements when arrested. When pressed during cross examination she became defensive and stated that the details of the arrest were unclear in her mind; she could not recall speaking the patrolman about the number of pills she took. At other times she was able to provide details of that incident, such as the explanation for the missing pills, or a claim that the patrolman did not smile or act in a friendly manner. The Board has incurred costs in the investigation and prosecution of this matter, in the sum of $6,405. LEGAL CONCLUSIONS Cause was established to discipline Respondent's license pursuant to Business and Professions Code sections 490 and 2761, subdivision (f),3 for her conviction of a crime that is substantially related to the duties, qualifications, and functions of a registered nurse. Cause was established to discipline Respondent's license pursuant to sections 2761, subdivision (a), and 2762, subdivision (c), for unprofessional conduct, for her conviction of a crime involving drugs. This Conclusion is based on Factual Findings 3 through 5. Cause was established to discipline Respondent's license pursuant to sections 2761, subdivision (a), and 2762, subdivision (b), for unprofessional conduct by the dangerous use of drugs, specifically Ambien, as her use of it created danger to herself and others. This Conclusion is based on Factual Findings 3 through. The Board is entitled to recover its costs of investigation and enforcement pursuant to section 125.3, based on Legal Conclusions 1 through 3. The reasonable costs total $6,405, based on Factual Finding 11. When the entire record is considered, it is fairly inferred that Respondent may not be safe to practice, even if she could find part-time work. Respondent told law enforcement that she has taken Ambien for 20 years, and she confirmed long-term use in the hearing. Different explanations for those years of use were given to law enforcement and to the ALJ during the hearing. But, less than a year ago, she made no mention of her long term use and her medical issues when she wrote her letter to the Board, which told a tale of just needing some sleep after a tough day at work. Respondent was not credible in much of her testimony. (See Factual Findings 5 through 8, and10.) By her many inconsistencies, it appeared that she was covering up the nature and extent of her Ambien use, and the reasons for .it. That lack of credibility negates the evidence of rehabilitation that might otherwise follow from compliance with her criminal probation. Furthermore, her suspect credibility indicates that she is not a strong candidate for probation by the Board, which requires regular reporting regarding work and other activities. Finally, it implicates her ability to practice professionally because a nurse's chart notes must have currency, because they must be relied on by practitioners and institutions, and if the nurse's veracity is questionable, then her charts will lack that currency. The Board's Recommended Guidelines for Disciplinary Orders also provide criteria for drug and alcohol rehabilitation which in turn recommend, in cases of drug or alcohol abuse, participation in a rehabilitation program for at least six months, and documentation from an employer that the nurse in question has been working for at least six months with no evidence of drug or alcohol use, coupled with sound practice. Respondent cannot present such evidence. Respondent did not offer much evidence of rehabilitation, besides regular church attendance and participation in some positive activities, such as assisting the poor. The Board's probation requirements are fairly stringent. In a case of this type physical and psychiatric exams would be required, along with regular participation in a rehabilitation program, and expensive fluid testing. Probationary registered nurses are obligated to work regularly-at least 20 hours per week-and Respondent states she cannot handle a full time work load, and cannot find part time work. In summary, probation does not appear to be a practical solution at this time. The purpose of proceedings of this type is to protect the public, and not to punish an errant practitioner. (Camacho v. Youde (1979) 95 Cal.App.3d 161, 164; Bryce v. Board ofMedical Quality Assurance (1986) 184 Cal.App.3d 1471, 1476.) Based on all the foregoing, the order of revocation that follows is necessary for public protection. Respondent may apply for reinstatement at the appropriate time, and if she does so, she must stand ready to show the Board, by competent evidence, that whatever issues she has with Ambien use, or the consumption of any other drugs, are under sufficient control so that she can practice safely. ORDER The registered nurse's license issued to Respondent is hereby revoked.