Professional Licenses and New York DWI

Yesterday I did a talk/powerpoint for a group of surgical nurses on Professional Discipline. New York like many states these days has an extensive list of behaviors both on and off the job that are considered professional misconduct. Any instances of this misconduct trigger an investigation and potential hearing concerning your licensure as a professional within the state. The list of licenses includes: Pharmacists, Nurses, Massage Therapists, and many others. NYS Board of Regents monitors these professions. See list here:
http://www.op.nysed.gov/proflist.htm

Under NYS Education Law 6509 (5) (a) (1), any violation of law is professional misconduct. Any DWI or other misdemeanor would be considered a violation and therefore an instance of professional misconduct. For further reading under New York State Education
§ 6530 there are 48 Definitions of Professional Misconduct. http://www.health.state.ny.us/professionals/office-based_surgery/law/6530.htm

I discussed with the nurses a few main points:

1. The State's burden of proof to suspend, revoke, or censure a professional license is far less than the criminal standard of "Beyond a Reasonable Doubt." It is in fact less than the "Clear and Convincing" standard required to take someone's kids or declare someone mentally incompetent. It is called, "substantial evidence" which is something a little higher than the civil standard for money damges, "Preponderance of the Evidence" or the little more than 50%. An excellent and interesting New York case highlighting the burden administratively is Shuman v. New York State Racing and Wagering Board: http://asci.uvm.edu/equine/law/cases/racing/shuman.htm

2. They should never talk to an investigator, the police, or the prosecutor concerning any allegations of misconduct without an attorney present. Anything they say will be used against them. Even if they are innocent they stand nothing to gain by talking, and everything to lose. You know the line in the Miranda warnings that says, "Can be used against you" well guess what under the Federal Rules of Evidence it can not be used "for you" so why talk.

3. Someone with a Professional license can be facing three different legal problems and three different standards of proof with an instance of misconduct. A nurse allegedly (I love that word)causes an accident that involves damage to people and property. She has alcohol on her breath and is charged with a Common Law NYS Section 1192 (3) DWI even though she refuses the Breath Test. Now she has criminal charges with the prosecutor facing jail and fines, a potential civil lawsuit where she is facing a verdict for people and property damages, and a potential nurse licensure suspension for the DWI. Now remember, all three have different burdens of proof, and all three will require legal counsel and advisement. NOTE: Common Law NY Driving While Intoxicated 1192 (3) is proof of intoxication based upon the police officer's observations, road side testing (Field Sobriety Tests), and notes.

Those with professional licensure should be mindful of the minefield that awaits them if they accused of a crime or an act of misconduct. My million dollar advice is never say anything to anyone without first counseling with a lawyer.