Anuncio Sulla, a San Jose nurse since 2007, was arrested and eventually convicted of driving under the influence with a blood-alcohol level above .08 (Penal Code section 23152(b)). The short version of the facts are that Mr. Sulla had attended a party, where alcohol was served. Heading home to San Jose, he swerved his car into the center-divide on Highway 101 in San Mateo County. His Blood alcohol was .16%.
As a result the California Nursing Board placed Mr. Sulla on its own probation period of three years. It is true that a professional employee, such as a nurse, may be disciplined (including placed on probation, or having a license suspended or revoked) if that employee's conduct is unfit for him to practice that profession.
In justifying its decision the Board relied on Business and Professions Code section 2762, which provides that a profession, such as a nurse, engages in unprofessional conduct when he consumes alcohol "to an extent or in a manner dangerous or injurious to himself or herself, any other person, or the public." Subsection (c) further states that being "convicted of a criminal offense involving the prescription, consumption, or self-administration" of alcohol or other dangerous drug.
Sulla challenged the disciplinary action taken against him and took the matter before the Administrative Law Court in San Francisco, arguing the discipline action denied him due process and was unconstitutional, because the conviction was unrelated to his professional responsibilities. At the hearing evidence was presented that Mr. Sulla had no history of alcohol abuse, was well respected within the nursing community and never drank much when he socialized with his peers. Further, a psychiatrist who examined Sulla, testified "he did not meet the diagnostic criteria for alcohol abuse or dependence, and that his conviction "represents a single, isolated episode of poor judgment." (San Francisco County Super. Ct. No. CPF-11-511124.)
The Administrative Law Judge upheld the disciplinary action on the grounds that such discipline need not be "substantially related to qualifications, functions or duties" of a registered nurse. (See, San Francisco County Super. Ct. No. CPF-11-511124.) The Administrative Law Court did not make a findings on the constitutionality of the Business and Professions Code section 2762, as an administrative body lacks the authority to do so.
Sulla appealed the matter to the Superior Court, with the same arguments noted above, specifically, that his alcohol-related conviction did not bear a substantial relationship to his qualifications to practice nursing. The court found in favor of Sulla, stating that because his conviction is not related to his professional behavior, the Nursing Board acted beyond what section 2762 allows.
The Board appealed to the First District Court of Appeal which overturned the lower court's ruling and reinstated the disciplinary action against Sulla. The higher court stated that the constitutionality of the law has already been addressed by the courts. Further it upheld the Administrative Court's decision on similar grounds.(The court cited the cases of Watson v. Superior Court (2009) 176 Cal.App.4th 1407, 1416 and Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 769. These cases upheld disciplinary action against medical doctors for drug and alcohol related crimes unrelated to their professional conduct. As an aside the court did state that there is, nevertheless a "logical relationship between the professional fitness of a registered nurse and the alcohol-related misconduct," such as driving under the influence.
Sulla's attorney said that they will appeal to the California Supreme Court.