Milwaukee healthcare law attorneyBy Attorney Kristen Nelson

It is a situation that can happen: a licensed health care professional is arrested for a first-offense operating while intoxicated (OWI), and they immediately hire a criminal defense attorney.

A first-offense OWI is not a criminal offense in Wisconsin, but rather a traffic violation. Depending on the county, the case may not even show up in CCAP (the Wisconsin Circuit Court Access Program).

The health care professional wants to resolve the case quickly, so they stipulate to a guilty plea. The client may not even have to show up to court, because this can all be done electronically or via fax – an ideal resolution for a busy health care professional.

And since the case is not on CCAP, their employer and the Department of Safety and Professional Services (DSPS) never needs to know about this little misstep, right?

Wrong.

The Obligation to Report an Arrest or Conviction

When a licensed health care professional is arrested for any offense, the first question is “does the arrest need to be reported to their employer?”

A thorough review of the employee handbook is required to determine if an obligation to report the arrest exists. If the individual has hospital privileges, it is also necessary to review the medical staff bylaws.

A licensed health care professional is not required to report an arrest if no obligation exists, but a failure to report when required could result in significant consequences, including termination. Many hospital systems run annual or biannual criminal background checks on employees. Most likely, an arrest for an OWI-first offense will show on a background check. This new information could trigger an investigation into why the licensed health care professional failed to disclose the arrest.

An additional consideration are the circumstances surrounding the arrest. If a licensed health care professional is arrested for an OWI-first on their weekend off, following a night out with friends, most likely DSPS or an employer will not be concerned or take any adverse action.

On the other hand, if the licensed health care professional is arrested on their way to work or while on call, this situation could be viewed as being “substantially related to the practice of medicine.” This finding could result in consequences from the employer as well as DSPS.

Even if the licensed health care professional does not have an obligation to report an arrest to their employer, a conviction for an OWI-first offense (or other law violations) may need to be reported. Again, a thorough review of the employee handbook and medical staff bylaws is required to determine if a reporting obligation exists.

When to Report an Arrest or Conviction

Another common question is whether a licensed health care professional has an obligation to report an OWI-first conviction to their respective licensing board.

Under Wis. Stat. section 440.03(13)(am), only misdemeanor or felony convictions require self-reporting within 48 hours. An OWI-first offense does not need to be immediately self-reported because it is not a misdemeanor or felony conviction in Wisconsin.

An OWI first offense, however, needs to be reported on a new or renewal application. DSPS is given broad authority under Wis. Stat. chapter 440. This authority allows DSPS to investigate any arrest or conviction (including violations of local law) of an initial and renewal applicant.1

If the case is not resolved, it still needs to be disclosed on any professional licensing application. DSPS also requires the licensee to provide police reports, copies of the citations or criminal complaints, as well as any court ordered AODA assessments as allowed under section 440.03(13)(a).

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