In early October 2008, the Los Angeles Times published the findings of an investigation it conducted into the screening and discipline practices of the California Board of Registered Nursing (BRN). The Times found that lapses in the screening and background investigation practices of the BRN had allowed a large number of nurses, including convicted felons and individuals in state prison, to escape license discipline. The Board has reacted to this embarrassing report with new measures to enhance background scrutiny of its licensees and license applicants. Some changes were already underway before the report came out.
Most California licensing agencies require applicants to answer criminal background questions on their license applications, in addition to requiring criminal background checks. However, the BRN had not, until recently, required its applicants to answer a criminal background question, and also it did not ask about new convictions on its renewal forms. Instead, the Board relied solely on “livescan” fingerprint background checks. Before 1990, according to the Times, nurse license applicants were not even asked to submit fingerprints. The BRN did operate a fairly efficient periodic background check system which often caught criminal cases even while they were still pending. Nevertheless, some serious offenders have escaped scrutiny for years, or even decades.
If you are a nurse with a criminal conviction who has escaped scrutiny, there are things that you should do now, without delay, to reduce or possibly even avoid discipline by the Board. First, keep in mind that some nurses with convictions will never be disciplined. Although there is no statute of limitations for discipline against nurses in California, very old convictions may be difficult to prove or may now seem irrelevant to the nurse’s character and qualifications. On the other hand, if you have a recent conviction that will be reportable on your next renewal, swift action is advised.
Many felony convictions in California can be reduced to misdemeanors under California Penal Code section 17(b). If your conviction was a “wobbler,” meaning the charge could be alleged as a misdemeanor or felony, and if you were given probation (instead of being sent to state prison), you probably can get your felony conviction reduced to a misdemeanor. Most criminal court judges are inclined to reduce a prior felony conviction if the defendant has successfully completed probation. The newly reduced misdemeanor in turn can be expunged. An expungement (under Penal Code section 1203.4) does not automatically prevent license discipline, but it can be strong evidence of rehabilitation to lessen license discipline. Also, it is little known that some misdemeanor convictions, such as disturbing the peace or driving without a valid license, can be reduced to infractions. An infraction conviction cannot be used to discipline a license in California.
These criminal court motions and other actions to “clean up” criminal records are best attempted by a criminal defense attorney who is well known and well respected in the criminal court where the case will be heard. I do give seminars to criminal defense attorney groups to teach them how to best handle criminal cases to avoid license discipline and license denials. I will sometimes work in tandem with a criminal defense attorney to guide them in executing the best strategy to minimize license impacts. The most effective strategy is for the criminal defense attorney to recognize early in the criminal case that their client will have potential license issues, and to negotiate for an outcome that reduces the future impact of the criminal case. With this new push for scrutiny by the Board of Registered Nursing, such efforts will be critical for all registered nurses facing criminal charges.