BEFORE THE BOARD OF VOCATIONAL NURSING AND PSYCHIATRIC TECHNICIANS DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA. Respondent.

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1 1 BEFORE THE BOARD OF VOCATIONAL NURSING AND PSYCHIATRIC TECHNICIANS DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: Case No. VN JOANN C. HERNANDEZ OAH No Vera Road Cathedral City, CA Vocational Nurse License No. VN 0 Respondent DECISION The attached Proposed Decision ofthe Administrative Law Judge is hereby adopted by the Board ofvocational Nursing and Psychiatric Technicians as the Final Decision in the above entitled matter. This Decision shall become effective on December 1, 01. IT IS SO ORDERED this 1th day ofnovember, Todd D'Braunstein, PT President

2 BEFORE THE BOARD OF VOCATIONAL NURSING AND PSYCHIATRIC TECHNICIANS DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter of the Accusation Against: Case No. VN-00- JOANN C. HERNANDEZ, aka JOANN BURKE, OAH No Respondent. PROPOSED DECISION _This matter came on regularly for hearing on August 0, 01, before Susan J. Boyle, Administrative Law Judge, Office of Administrative Hearings, in San Diego, California. Deputy Attorney General David Hausfeld represented complainant, Teresa Bello Jones, J.D., M.S.N., R.N., Executive Officer, Board of Vocational Nursing and Psychiatric Technicians, Department of Consumer Affairs, State of California (board). Joann C. Hernandez, aka Joann Burke (respondent) represented herself. Oral and documentary evidence was presented, and the matter was submitted on August 0, 01. FACTUAL FINDINGS 1. On July 1, 00, the board issued respondent Vocational Nurse License number VN 0. At all times material times herein, respondent's license was in full force and effect and will expire on January 1, 01, unless renewed.. On December 1, 011, Teresa Bello-Jones, J.D., M.S.N., R.N., in her official capacity as Executive Officer of the board, signed the Accusation in Case No. VN-00-. The Accusation requests that respondent's license be revoked or suspended because respondent was convicted of an alcohol-related crime and had a history of similar offenses. The board also seeks recovery of the costs incurred for the investigation and prosecution of the case. 1

3 . Respondent filed a Notice of Defense on December 1, 011, and requested a hearing on the charges in the Accusation. 00 Conviction for Driving Under the Influence. On October 1, 00, a California Highway Patrol (CHP) officer responded to a call concerning a stranded motorist on Interstate 10 in Indio, California. When he made contact with respondent, the officer noticed the smell of alcohol and that respondent was slow to respond to his questions. Respondent told the officer that she was traveling from a casino to her home in Palm Springs. Respondent admitted to drinking "- Michelob beers" at the casino. The officer administered a series of field sobriety tests, formed the opinion that respondent was driving under the influence of alcohol, and placed her under arrest. A blood alcohol test showed that respondent's blood alcohol level was 0.1 percent. The arresting officer noted that respondent was "demanding, sarcastic, and showed no remorse for her actions.". On June 11, 00, in the Riverside County Superior Court, in case number BAM0, respondent pled guilty to, and was convicted of, one misdemeanor count of driving under the influence of alcohol in violation of Vehicle Code section 1, subdivision (a), with an admitted prior conviction. In exchange for her plea, one additional misdemeanor count was dismissed and respondent was placed on four years of summary probation with certain terms and conditions, including a requirement that she pay fines and fees in the amount of $,0 and that she serve 1 days in custody with credit given for 1 day served. Respondent was also ordered to install an Ignition Interlock Device on any vehicle she owned or operated for a period of six months and to attend an 1 month Offender Drinking Driver Program. Matters in Aggravation. The Accusation alleges two prior convictions, one occurring in August of 00 and one occurring in December of 00, as matters in aggravation. On August, 00, respondent pled guilty to, and was convicted of, one count of abusive/loud noise in violation of Penal Code section 1. One count of Public Intoxication in violation of Penal Code section, subdivision (f) was dismissed. On December, 00, respondent was convicted of one count of driving under the influence of alcohol in violation of Vehicle Code section 1, subdivision (a) and one count of driving with a blood alcohol level of.0 percent or higher in violation of Vehicle Code section 1, subdivision (b). In exchange for her plea, respondent was placed on three years of summary probation with certain terms and conditions, including a requirement that she pay fines and fees in the amount of $1, and that she serve 1 days in custody with credit given for 1 day served. Respondent was also ordered to attend a First Offender Drinking Driver Program. Consideration of the alleged matters in aggravation has been limited to determining the appropriate discipline in this case.

4 . By letter dated June 0, 00, the board advised respondent that it had considered her prior convictions and determined that it would not pursue disciplinary action because she was complying with the terms of her convictions and had no subsequent convictions. However, the board warned "[fluture substantiated reports that you have engaged in similar behavior or otherwise violated the laws or regulations governing your practice as a vocational nurse may result in disciplinary action against your license. (Emphasis in original.) Evidence in Mitigation and ofrehabilitation. In the four years Respondent has been on probation for her 00 conviction, she has not completed the 1 month Drinking Driver. Respondent testified that probation has been extended to June 01 to enable respondent to complete the program. She anticipates she will complete the program in six months. In 00, respondent attended, and completed, _ a 0 day residential rehabilitation program. In a letter dated August 0, 00, Margaret E. Ferron, B.A., R.P.C, stated that she was respondent's counselor in the program and found respondent to be a good listener, and "a fast learner with a willingness to be open and honest..." She recommended respondent as a person _who was "dedicated to a professional career in nursing." Respondent also stated that she saw a counselor for approximately six months. She attended Alcoholics Anonymous (AA) two to three times a day while in rehabilitation and then for a period of six to seven months afterwards. In or about August of 00, respondent began to go to Calvary Chapel church. She and her husband patiicipated in couples' counseling there and attend church twice a week. The counseling at church was not focused on alcohol or other addictions. In 00, respondent was again charged with driving under the influence. She stated that she tried to go back to AA but she did not like attending; she preferred church and saw a therapist who practiced Christian-based addiction therapy. Respondent stated that she did drink alcohol since her last conviction, but stated that she had not had alcohol for at least one month prior to the hearing. Respondent testified that after her 00 arrest, she could not find a job. She was able to do some part time work for Maxim Healthcare Services and also worked as a waitress. In 011, respondent secured employment with a doctor's office and worked there for more than one year. Respondent quit that job because she was humiliated and felt that her co-workers treated her differently after she asked them to write letters of reference for her to use at this hearing. She went back to waitressing. Kay Romero, Office Manager of Advances in Medicine wrote in a letter dated April 10, 01, that respondent was "a wonderful addition to our office" She also noted that the patients respondent worked with "can't say enough great things about her." The letter does not indicate if Ms. Romero was aware of respondent's

5 criminal convictions, nor does it indicate if Ms. Romero was aware that the letter would be used in this disciplinary action before the board. By letter dated January 10, 01, Carly J. Eddahri commends respondent for her care of Ms. Eddahri's mentally disabled brother from 00 to 011. Ms. Eddahri highly recommended respondent and noted she "was able to manage [her brother's] daily medication, appointment, nutrition and al!y additional needs flawlessly." The letter does not indicate if Ms. Eddahri was aware ofrespondent's criminal convictions. In a letter from Joshua R. J., a patient cared for by respondent, he writes that respondent cared for him when his mother was dying of cancer. He states that she gave him medications, took him to appointments, made sure he was clean and fed. He found respondent to be "very nice." Respondent has completed 0 hours of continuing education courses focusing on the care of children. She has also taken two sections of anatomy and physiology at the College of the Desert and received a grade of.0 in each class. Respondent is involved with the community by coaching girls' sports teams. Costs. The reasonable costs of investigation and prosecution of the instant matter against respondent total $,0 and complainant is seeking recovery of those costs pursuant to Business and Professions Code section 1.. LEGAL CONCLUSIONS Applicable Statutory and Regulatory Provisions 1. Business and Professions Code section requires the Board to "develop criteria to evaluate the rehabilitation of a person when... (b) considering suspension or revocation of a license under Section 0." Section also requires the Board to "take into account all competent evidence ofrehabilitation furnished by the applicant or licensee.". Business and Professions Code section 0 provides in part: A board may suspend or revoke a license on the ground that the licensee has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued. A conviction within the meaning of this section means a plea or verdict of guilty or a conviction following a plea of nolo contendere...

6 . Business and professions Code section provides in relevant part, that in a proceeding to revoke or suspend a license. upon the ground that the applicant or the licensee has been convicted of a crime substantially related to the qualifications, functions, and duties of the licensee in question, the record of conviction of the crime shall be conclusive evidence of the fact that the conviction occurred, but only of that fact, and the board may inquire into the circumstances surrounding the commission of the crime in order to fix the degree of discipline or to determine if the conviction is substantially related to the qualifications, functions, and duties of the licensee in question.. Business and professions Code section provides that the board may suspend or revoke a license for unprofessional conduct, including, but not limited to, "(f) [ c ]onviction of any offense substantially related to the qualifications, functions, and duties of a licensed vocational nurse, in which event the record of the conviction shall be conclusive evidence ofthe conviction.". Business and professions Code section. provides in part: In addition to other acts constituting unprofessional conduct within the meaning of this chapter, it is unprofessional conduct for a person licensed under this chapter to do any of the following: [~]... [~] (b) Use any controlled substance as defined in Division 10 of the Health and Safety Code, or any dangerous drug as defined in Section 0, or alcoholic beverages, to an extent or in a manner dangerous or injurious to himself or herself, any other person, or the public, or to the extent that the use impairs his or her ability to conduct with safety to the public the practice authorized by his or her license. (c) Be convicted of a criminal offense involving possession of any narcotic or dangerous drug, or the prescription, consumption, or selfadministration of any of the substances described in subdivisions (a) and (b) of this section, in which event the record of the conviction is conclusive evidence thereof.. California Code of Regulations, title 1, section 1 provides in part: For the purposes of denial, suspension, or revocation of a license pursuant to Division 1. (commencing with Section ) of the Business and Professions Code, a crime or act shall be considered to be substantially related to the qualifications, functions or duties of a licensed vocational nurse if to a substantial degree it evidences present

7 or potential unfitness of a licensed vocational nurse to perform the functions authorized by his license in a manner consistent with the public health, safety, or welfare.. California Code of Regulations, title 1, section provides: When considering... (b) the suspension or revocation of a license on the ground that a licensee has been convicted of a crime,... the Board, in evaluating the rehabilitation of an individual and his or her present eligibility for a license, will consider th~ following criteria: (1) Nature and severity of the act(s), offense(s), or crime(s) under consideration. () Actual or potential harm to the public. () Actual or potential harm to any patient. () Overall disciplinary record. () Overall criminal actions taken by any federal, state or local agency or court. () Prior warnings on record or prior remediation. () Number and/or variety of current violations. () Mitigation evidence. () In case of a criminal conviction, compliance with terms of sentence and/or court-ordered probation. (10) Time passed since the act(s) or offense(s) occurred. (11) If applicable, evidence of proceedings to dismiss a conviction pursuant to Penal Code section 10.. (1) Cooperation with the Board and other law enforcement or regulatory agencies. (1) Other rehabilitation evidence. Application offacts and Law First Cause for Discipline. Cause exists for discipline ofrespondent' s Vocational Nurse License Number VN 0 pursuant to Business and Professions Code sections 0 and subdivision (f), because respondent was convicted of the crime of driving while intoxicated in 00. A vocational nurse, particularly one who may be working in the private home of a patient with no consistent supervision, is in a unique position that requires trustworthiness, clearheadedness and the exercise of impeccable judgment. Respondent' s duties and authority includes having access to medications. The conviction is substantially related to the qualifications, functions, or duties of a licensed vocational nurse. (Cal. Code Regs., tit. 1, 1.)

8 Second Cause for Discipline. Cause exists for discipline of respondent's Vocational Nurse License Number 0 pursuant to Business and Professions Code section., subdivision (b), because respondent was intoxicated while driving a vehicle on public roads thereby endangering herself and the public, for which she was convicted of the crime of driving while intoxicated in 00. A vocational nurse, particularly one who may be working in the private home of patients with no consistent supervision, is in a unique position that requires trustworthiness, clear-headedness and the exercise of impeccable judgment. Respondent's duties and authority includes having access to medications. The conviction is substantially related to the qualifications, functions, or duties of a licensed vocational nurse. (Cal. Code Regs., tit. 1, 1.) Third Cause for Discipline 10. Cause exists for discipline ofrespondent's Vocational Nurse License Number VN 0 pursuant to Business and Professions Code section., subdivision (c), because respondent was convicted of the crime of driving while intoxicated in 00. A vocational nurse, particularly one who may be working in the private home of a patient with no consistent supervision, is in a unique position that requires trustworthiness, clearheadedness and the exercise of impeccable judgment. Respondent's duties and authority includes having access to medications. The conviction is substantially related to the qualifications, functions, or duties of a licensed vocational nurse. (Cal. Code Regs., tit. 1, 1.) Level ofdiscipline 11. The determination as to whether respondent's license should be revoked or suspended turns upon the application of the rehabilitation criteria set forth in California Code of Regulations, title 1, section. Additionally, the board's Disciplinary Guidelines have been considered in reaching the determination of the appropriate level of discipline. Rehabilitation is a state of mind and the law looks with favor upon rewarding with the opportunity to serve one who has achieved "reformation and regeneration." (Pacheco v. State Bar (1) Cal. d 101, 10.) Fully acknowledging the wrongfulness of past actions is an essential step towards rehabilitation. (Seide v. Committee ofbar Examiners (1) Cal.d, 0.) Mere remorse does not demonstrate rehabilitation. A truer indication of rehabilitation is sustained conduct over an extended period of time. (In re Menna (1) 11 Ca1.th, 1.) The evidentiary significance of misconduct is greatly diminished by the passage of time and by the absence of similar, more recent misconduct. (Kwasnik v. State Bar (10) 0 Cal.d 101, 100.) 1. As relates to the 00 DUI, the nature and severity of the offense was such that potential harm to the public was a foreseeable consequence ofrespondent's actions. Respondent particularly was in a position to be aware of the consequences of driving under the influence of alcohol since she suffered a prior conviction for DUI in 00 and had

9 attended preventive programs ordered by the court for that conviction. Further, respondent was convicted of an alcohol-related offense in 00, for which she completed a 0 day residential rehabilitation program and attended AA for a period of time. 1. In aggravation, in June of00, when it issued respondent's license, the board warned respondent that another violation would put her license in jeopardy. Notwithstanding the warning, only four months later, respondent was arrested for, and ultimately convicted of, driving under the influence of alcohol again. 1. Of concern is that respondent "tried" to go back to AA after her arrest in 00, but stopped going because she didn't like it and liked church better. This is an unsatisfactory response to a serious problem and does not demonstrate recognition by respondent of its seriousness and/or a focus on rehabilitation. Of additional concern is that respondent did not stop drinking alcohol after her 00 arrest. Instead it was not until almost five years later - a month or so before this disciplinary hearing - that respondent stopped drinking. One month of sobriety is not sufficient to demonstrate a commitment to sobriety and rehabilitation. 1. Of additional concern is that despite having two DUI convictions within a year period, and entering rehabilitation in 00 after an alcohol-related conviction, respondent has not completed the educational and preventative program ordered by the court within the four years of her probation, such that her probation had to be extended by another year. 1. Respondent suggested that financial considerations contributed to her inability to finish the Drinking Driver Program, however, respondent gave up stable employment in a doctor's office and returned to waitressing because she felt humiliated by having to ask her co-workers to write letters of recommendations for this disciplinary hearing. This is additional evidence that respondent does not acknowledge or accept the full consequences of her actions. 1. While it has been four years since respondent's 00 conviction, she remains on criminal probation for that conviction. The fact that respondent has had no further police involvement in that short time is not persuasive evidence of rehabilitation. Since persons under the direct supervision of judicial or correctional authorities are required to behave in exemplary fashion, little weight is generally placed on the fact that such an individual did not commit additional crimes or continue inappropriate behavior while under supervision. (In re Gossage (000) Cal.th 100, 10.) 1. Upon consideration of the entirety of the facts and the application of the rehabilitation criteria, it is concluded that the protection of the public will be compromised unless respondent's license is revoked. Costs 1. Pursuant to Business and Professions Code section 1., the board may request an administrative law judge to order a licensee found to have violated the licensing

10 act to pay an amount that does not exceed the reasonable costs of investigation and enforcement. The bureau's reasonable costs incuned in connection with this matter are $,0. Under Zuckerman v. State Board ofchiropractic Examiners (00) Cal. th, the board must exercise discretion to reduce or eliminate cost awards in a manner which will ensure that the cost award statutes do not "deter [licensees] with potentially meritorious claims or defenses from exercising their right to a hearing." Id. at. The Supreme Court set forth four factors to consider in deciding whether to reduce or eliminate costs: (1) whether the licensee used the hearing process to obtain dismissal of other charges or a reduction in the severity of the discipline imposed; () whether the licensee had a "subjective" good faith belief in the merits ofhis position; () whether the licensee raised a "colorable challenge" to the proposed discipline; and ( ) whether the licensee had the financial ability to make payments.!d. at. The reasoning of Zuckerman must be applied to Business and Professions Code section 1. since the cost recovery regulation in Zuckerman contains substantially the same language as that is set forth in Business and Professions Code section Respondent did not obtain a favorable result or reduction in the level of discipline that complainant sought. However, there was evidence that respondent lacks the present ability to pay the full cost recovery amount. After applying the Zuckerman criteria in the instant matter, it is concluded that it is reasonable to require respondent to pay half of the costs to investigate and enforce the Accusation against respondent. Thus, respondent must pay the sum of $,0 to the board. ORDER 1. License Number VN 0 issued to Joann C. Hernandez aka Joann Burke is revoked.. If respondent becomes eligible, and applies, for reinstatement or renewal of her license, proof of payment to the Board of Vocational Nursing and Psychiatric Technicians of costs in the amount of $,0 shall be a condition of reinstatement or renewal. DATED: September 1, 01 --'SUSAN J. BOYLE Administrative L~~ Judge Office of Administrative Hearings

11 ,..o...~ - ' '-. i '~ 1 10 KAMALA D. HARRIS Attorney General of California LINDA K. SCHNEIDER Supervising Deputy Attorney General State Bar No. 101 AMANDA DODDS Senior Legal Analyst 110 West "A" Street, Suite 1100 San Diego, CA 101 P.O. Box San Diego, CA 1- Telephone: (1) -11 Facsimile: (1) -01 Attorneys for Complainant tlotird o1 voc~tionat N~r~ing tlnd pzychiatric Techmc1ans BEFORE THE BOARD OF VOCATIONAL NURSING AND PSYCHIATRIC TECHNICIANS DEPARTMENT OF CONSUMER AFFAIRS STATE OF CALIFORNIA In the Matter ofthe Accusation Against: JOANN C. HERNANDEZ aka JOANN BURKE 0 Miramonte Circle, Apt. E Palm Springs, CA Vocational Nurse License No. VN 0 Complainant alleges: Respondent. Case No. VN-00- ACCUSATION PARTIES 1. Teresa Bello-Jones, J.D., M.S.N., R.N. (Complainant) brings this Accusation solely in her official capacity as the Executive Officer ofthe Board of Vocational Nursing and Psychiatric Technicians, Department ofconsumer Affairs.. On or about July 1, 00, the Board ofvocational Nursing and Psychiatric Technicians issued Vocational Nurse License Number VN 0 to Joann C. Hernandez, also known as Joann Burke (Respondent). The Vocational Nurse License was in full force and effect at all times relevant to the charges brought herein and will expire on January 1, 01, unless renewed. I I I Accusation

12 JURISDICTION This Accusation is brought before the Board of Vocational Nursing and Psychiatric Technicians (Board), Department of Consumer Affairs, under the authority of the following laws. All section references are to the Business and Professions Code (Code) unless otherwise indicated.. Section 11, subdivision (b) of the Code provides, in pertinent part, that the expiration of a license shall not deprive the Board jurisdiction to proceed with a disciplinary action during the period within which the license may be renewed, restored, reissued or reinstated. Under section.1 of the Code, the Board may renew an expired license at any time within four years after the expiration.. Section of the Code provides, in pertinent part, that the Board may discipline the holder of a vocational nurse license for any reason provided in Article (commencing with section ) ofthe Vocational Nursing Practice Act.. Section of the Code states: STATUTORY PROVISIONS Each board under the provisions ofthis code shall develop criteria to evaluate the rehabilitation of a person when: (a) Considering the denial of a license by the board under Section 0; or (b) Considering suspension or revocation of a license under Section 0. Each board shall take into account all cmnpetent evidence ofrehabilitation furnished by the applicant or licensee.. Section 0 ofthe Code provides, in pertinent part, that the Board may suspend or revoke a license when it fmds that the licensee has been convicted of a crime substantially related to the qualifications, functions or duties of a licensed vocational nurse.. Section of the Code states: Notwithstanding any other provision of law, in a proceeding conducted by a board within the department pursuant to law to deny an application for a license or to suspend or revoke a license or otherwise take disciplinary action against a person who holds a license, upon the ground that the applicant or the licensee has been convicted of a crime substantially related to the qualifications, functions, and duties of the licensee in question, the record of conviction of the crime shall be conclusive evidence of the fact that the conviction occurred, but only of that fact, and the board Accusation

13 1 may inquire into the circumstances surrounding the comn1ission of the crime in order to fix the degree of discipline or to determine if the conviction is substantially related to the qualifications, functions, and duties ofthe licensee in question. As used in this section, "license" includes "certificate," "permit," "authority," and "registration.". Section ofthe Code states: The Board may suspend or revoke a license issued under this chapter [the Vocational Nursing Practice Act (Bus. & Prof. Code, 0, et seq.)] for any of the following: (a) following: Unprofessional conduct, which includes, but is not limited to, the (f) Conviction of a crime substantially related to the qualifications, functions, and duties of a licensed vocational nurse, in which event the record of the conviction shall be conclusive evidence of the conviction. 10. Section. of the Code states: In addition to other acts constituting unprofessional conduct within the meaning of this chapter [the Vocational Nursing Practice Act] it is unprofessional conduct for a person licensed under this chapter to do any ofthe following: (b) Use any controlled substance as defined in Division 10 ofthe Health and Safety Code, or any dangerous drug as defmed in Section 0, or alcoholic beverages, to an extent or in a manner dangerous or injurious to himself or herself, any other person, or the public, or to the extent that the use impairs his or her ability to conduct with safety to the public the practice authorized by his or her license. (c) Be convicted of a criminal offense involving possession of any narcotic or dangerous drug, or the prescription, consumption, or self-administration ofany of the substances described in subdivisions (a) and (b) of this section, in which event the record ofthe conviction is conclusive evidence thereof. 11. Section. ofthe Code states: A plea or verdict of guilty or a conviction following a plea of nolo contendere made to a charge substantially related to the qualifications, functions and duties of a licensed vocational nurse is deemed to be a conviction within the meaning of this article. The board may order the license suspended or revoked, or may decline to issue a license, when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under the provisions of Accusation

14 ~ection 10. of the Penal Code allowing such person to withdraw his plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information or indictment. REGULATORY PROVISIONS 1. California Code ofregulations, title 1, section 1, states: For the purposes of denial, suspension, or revocation of a license pursuant to Division 1. (conunencing with Section ) of the Business and Professions Code, a crime or act shall be considered to be substantially related to the qualifications, functions or duties of a licensed vocational nurse if to a substantial degree it evidences present or potential unfitness of a licensed vocational nurse to perform the functions authorized by his license in a manner consistent with the public health, safety, or welfare. Such crimes or acts shall include but not be limited to those involving the following: (a) Procuring a license by fraud, misrepresentation, or mistake. (b) A conviction of practicing medicine without a license m violation of Chapter of Division of the Business and Professions Code. (c) Violating or attetnpting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate any provision or term of Chapter., Division ofthe Business and Professions Code. (d) Aiding or assisting, or agreeing to aid or assist any person or persons, whether a licensed physician or not, in the performance of or arranging for a violation of any of the provisions of Article 1, Chapter, Division of the Business and Professions Code. (e) Conviction ofa crime inv~lving fiscal dishonesty. (f) Any crime or act involving the sale, gift, administration, or furnishing of "narcotics or dangerous drugs or dangerous devices" as defined in Section 0 of the Business and Professions Code. 1. California Code ofregulations, Title 1, section states: When considering a) the denial of a license under Section 0 of the Business and Professions Code, b) the suspension or revocation of a license on the ground that a licensee has been convicted of a crime, or c) a petition for reinstatement of a license under Section. of the Business and Professions Code, the Board in evaluating the rehabilitation of an individual and his or her present eligibility for a license, will consider the following criteria: (1) Nature and severity of the act(s), offense(s), or crime(s) under consideration. () Actual or potential harm to the public. () Actual or potential harm to any patient. () Overall disciplinary record. Accusation

15 () Overall criminal actions taken by any federal, state or local agency or court. () Prior warnings on record or prior remediation. () Number and/or variety of current violations. () Mitigation evidence. () In case of a criminal conviction, compliance with terms of sentence and/or court -ordered pro bation. (10) Time passed since the act(s) or offense(s) occurred. (11) If applicable, evidence of proceedings to dismiss a conviction pursuant to Penal Code section 10.. (1) Cooperation with the Board and other law enforcement or regulatory agencies. (1) Other rehabilitation evidence. COST RECOVERY 1. Section 1. ofthe Code provides, in pertinent part, that the Board may request the administrative law judge to direct a licentiate found to have comn1itted a violation or violations of the licensing act to pay a sum not to exceed the reasonable costs of the investigation and enforcement ofthe case. FIRST CAUSE FOR DISCIPLINE (June 11, 00 Criminal Conviction for Driving Under the Influence on October 1, 00) 1. Respondent has subjected her license to disciplinary action under sections 0 and, subdivision (f) of the Code in that Respondent was convicted of a crime that is substantially related to the qualifications, functions, and duties ofa licensed vocational nurse. The circumstances are as follows: a. On or about June 11, 00, in a criminal proceeding entitled People ofthe State ofcalifornia v. Joann Christina Burke, in Riverside County Superior Court, case number BAM0, Respondent was convicted on her plea of guilty of violating Vehicle Code section 1, subdivision (a), driving under the influence of alcohol, a misdemeanor. A second count of violating Vehicle Code section 1, subdivision (b), driving with a blood alcohol content (BAC) of0.0 percent or higher, was dismissed pursuant to a plea agreement. Respondent Accusation

16 admitted and the court found true the allegation that Respondent was previously convicted of the same violations as described in paragraph 1, below. b. As a result ofthe conviction, on or about June 11, 00, Respondent was granted summary probation for months, and ordered to serve 1 days in the custody of the sheriff, with credit for one day, to be served on consecutive weekends. Respondent was further ordered to complete an 1-month Drinking Driver Program, pay fees, fines, and restitution in the amount of $,0, and comply with standard DUI probation terms. Respondent was required to install an interlock device on her vehicle for a period of six months. c. The facts that led to the conviction are that on or about the evening of October 1, 00, an officer with the California Highway Patrol (CHP) was dispatched to assist a disabled motorist on Interstate 10 in the area ofindio. Upon arrival, the CHP officer observed Respondent sitting in the driver's seat ofher vehicle on the right shoulder ofthe road. Upon contact with Respondent, he immediately noticed the smell of an alcoholic beverage emitting from her vehicle. Respondent told the officer that she hit a curb and that her left front tire was flat. Respondent did not know where she hit the curb. The CHP officer observed that Respondent's speech was slow and slurred, and her reaction time was slow. Respondent admitted consuming alcohol earlier in the evening. Respondent was asked to exit her vehicle. The officer noted that her gait was unsteady and she had a strong odor of an alcoholic beverage emitting from her breath. Respondent submitted to a series of field sobriety tests, which she was unable to complete as explained and demonstrated. Respondent was arrested for driving under the influence ofalcohol. During booking, she provided a blood sample that was analyzed with a BAC of.1 percent. The officer noted that Respondent's demeanor was very poor throughout the contact; she was overly demanding, sarcastic, and showed no remorse for her actions. SECOND CAUSE FOR DISCIPLINE (Unprofessional Conduct- Use of Alcohol in a Dangerous Manner) 1. Respondent has subjected her license to disciplinary action under section., subdivision (b) of the Code for unprofessional conduct in that on or about October 1, 00, Respondent used alcohol in a manner dangerous or injurious to herself and others, in that she Accusation

17 operated a n1otor vehicle on a public roadway while significantly intoxicated as described in paragraph 1, above THIRD CAUSE FOR DISCIPLINE (Unprofessional Conduct- Criminal Conviction Involving the Consumption of Alcohol) 1. Respondent has subjected her license to disciplinary action under section., subdivision (c) of the Code for unprofessional conduct in that on or about June 11, 00, Respondent was convicted of an alcohol-related crime, as described in paragraph 1, above. DISCIPLINARY CONSIDERATIONS 1. To determine the degree of discipline, if any, to be imposed on Respondent, pursuant to California Code ofregulations, title 1, section., Complainant alleges: a. On or about December, 00, in a prior criminal proceeding entitled People ofthe State of California v. Joann Christina Burke, in Riverside County Superior Court, case number BAM010, Respondent was convicted on her plea of guilty of violating Vehicle Code. section 1, subdivision (a), driving under the influence of alcohol; and Vehicle Code section 1, subdivision (b), driving with a BAC of 0.0 percent or higher, misdemeanors. The court assessed Respondent's BAC in excess of.0 percent. As a.result of the convictions, Respondent was granted months summary probation, and ordered to serve 1 days in the custody of the sheriff, with credit for one day, to be served on weekends. Respondent was further ordered to complete a First Offender DUI Program, pay fees, fmes, and restitution in the amount of $1,, and comply with standard DUI probation terms. b. On or about August, 00, in a prior criminal proceeding entitled People of the State ofcalifornia v. Joann Christina Burke, in Riverside County Superior Couti, case number INM1, Respondent was convicted on her plea of guilty of violating Penal Code section 1, abusive/loud noise, an infraction, a substituted count that dismissed the original charge ofpublic intoxication (Pen. Code, (f)), a misdemeanor. c. In a letter to Respondent dated June 0, 00, an Enforcetnent Analyst from the Board advised Respondent that the Board would not pursue disciplinary action at that time and that Respondent's application for licensure would be approved. Respondent was warned that Accusation

18 future substantiated reports of similar behavior, or other violations ofthe law, or violations of regulations governing the practice of a vocational nurse, could result in disciplinary action against Respondent's license. PRAYER WHEREFORE, Complainant requests that a hearing be held on the matters herein alleged, and that following the hearing, the Board ofvocational Nursing and Psychiatric Technicians issue a decision: 1. Revoking or suspending Vocational Nurse License Number VN 0, issued to Joann C. Hernandez;. Ordering Joann C. Hernandez to pay the Board ofvocational Nursing and Psychiatric Technicians the reasonable costs ofthe investigation and enforcement of this case, pursuant to Business and Professions Code section 1.;. Taking such other and further action as deemed necessary and proper DATED: D_e_c_e_m b_e_r l, 0_1~ Complainant 0 SD Accusation