No, We’re Not Talking About Alex Trebek’s Double Jeopardy

RN Guardian’s panel attorneys recently defended a Registered Nurse whose nursing license was subject to revocation for a DUI conviction. Just like every DUI case before hers, we were able to save her nursing license, but she was given a three year probation term by the BRN. She replied with this email:

“Thank you for your help with this issue.  It’s been such a difficult time, but at least I know that I still have my license.  I’m not looking forward to what I’ll have to go through for the next three years (I still feel like I’m being punished twice for the same offense).  I don’t know how I would have made it through this without the help of RN Guardian.   Sincerely, S”

Our nurse’s statement that she feels like she is being punished twice for the same offense should raise a red flag. On the game show Jeopardy, Double Jeopardy ups the ante: the stakes are higher and there is a lot more to lose. Off the TV set there is another definition of double jeopardy, it is a legal term.

The double jeopardy rule is derived from the Fifth Amendment to the United States Constitution, from the  clause which reads: “[no person shall] be subject for the same offense to be twice put in jeopardy of life or limb.” The protection afforded by double jeopardy eliminates the possibility of being tried for the same crime after an acquittal, retrial after a conviction, or being punished multiple times for the same offense. This rule is intended to limit abuse by the government in repeated prosecution for the same offense as a means of harassment or oppression.

If you ask any RN who currently complying with 19 different probation requirements if she feels like she is being “harassed” or “oppressed” by the Board, you will likely get an emphatic “yes”. So how is it that the various Boards under the umbrella of the California Department of Consumer affairs are able to “punish” a licensee for a conviction for which they have JUST been punished by the courts? Following thousands in fines by the court, DMV and insurance companies, how can the Board tack on its own fees? How can the Board impose a three year probation sentence after a nurse has just spent days in jail, been assigned community service and a three probation term for the DUI? Isn’t this a glaring violation of the protection afforded by the double jeopardy rule?

No it is not. According to Business and Professions Code Section 101.6 the respective Boards have full authority to subject a nurse, paramedic or EMT with a professional license to “discipline” because it is not technically the same as being “punished”. It is the Board’s job as defined by the B&P Code to ensure that the licensees who have a potential impact on the public’s health, welfare and safety are adequately regulated in order to protect the people of California.  Basically, they can do whatever they want to a licensed health care provider if they believe that the public is at risk including instituting disciplinary action when such action is deemed warranted. The Boards also have the right to be reimbursed for the “reasonable costs of the investigation and enforcement of the case” which is not technically the same as a “fine.”

So what is the verdict on the “Double Jeopardy” issue as it pertains to licensing Boards in the State of California? It certainly doesn’t seem fair, it doesn’t seem right, and it doesn’t seem just, that simply because you hold a professional license you should be doubly punished for every transgression, but it is not illegal and it is not Double Jeopardy. It is the Board’s job to protect the public, it is your job to protect your license and there are two ways to do that: 1. Don’t ever get in trouble in the first place 2. If you do get in trouble, know who the experts are who can help.