ERNESTO GONZALES HERNANDEZ, Plаintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.
L.A. No. 31345
Supreme Court of California
Oct. 22, 1981.
30 Cal. 3d 70
Owen P. Rafferty and Philip A. Rafferty for Plaintiff and Appellant.
George Deukmejian, Attorney General, and Martin H. Milas, Deputy Attorney General, for Defendant and Respondent.
OPINION
TOBRINER, J.-Since 1966, section 13353 of the Vehicle Code-California‘s “implied consent” law1-has provided for a six-month suspension of an individual‘s driver‘s license when the individual, after having been lawfully arrested for drunk driving and fully informed of his rights, refuses to submit to any one of three statutorily prescribed chemical tests which are designed to provide scientifically measurable evidence as to the degree of the driver‘s intoxication at the time of his arrest. Past cases have upheld the constitutionality of section 13353 against clаims that the statute (1) violates the driver‘s privilege against self-incrimination,2 (2) authorizes an unreasonable search or seizure,3 (3) denies equal protection to variously defined classes,4 and (4) fails to satisfy procedural due process requirements.5
As we shall explain, we find plaintiff‘s constitutional contention totally lacking in merit. Although automobile travel is without question an important aspect of life in contemporary California society and an individual‘s substantial interest in retaining his driver‘s license has properly been accorded a variety of legal protections, plaintiff has cited absolutely no authоrity, from California or elsewhere, which suggests that legislative regulation of either automobile driving or automobile drivers is in any manner constitutionally “suspect” or involves any of the considerations which in past cases have been viewed as justifying the extraordinary invocation of “strict judicial scrutiny” of the Legislature‘s substantive policy decisions. On the contrary, as we shall see, past authorities-while fully cognizant of the practical importance of an individual‘s “right to drive“-have uniformly recognized that the area of driving is particularly appropriate for extensive legislative regulation, and that the state‘s traditionally broad police power authority to enact any measure which reasonably relates to public health or safety operates with full force in this domain. Because, as plaintiff concedes, section 13353 bears a reasonable relation to the preservation of safety on California highways, we reject plaintiff‘s constitutional challenge.
1. The facts and proceedings below
At approximately 11 p.m. on New Year‘s Eve, 1977, Officer DuVal of the Culver City Police Department observed plaintiff Ernesto Hernandez driving erratically on a public street. The officer turned on his
Immediately thereafter, the officer advised Hernandez of the requirements of California‘s implied consent law, reading verbatim from a laminated card which the officer carried for this purpose. The officer informed plaintiff: “You are required by state law to submit to a chemical test to determine the alcoholic content of your blood. You have a choice of whether the test is to be of your blood, breath or urine. If you refuse to submit to a test, your driving privilege will be suspended for a period of six months. You do not have the right to talk to an attorney or to have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the administration of the test chosen.”
At the subsequent administrative hearing, the officer described plaintiff‘s response to the proffered choice: “I asked Mr. Hernandez if he understood the statement. He answered, ‘Yeah, I understand.’ I then asked him which test he would like to take and he said ‘I won‘t take no test at all.’ I then asked him if he understood that he would automatically lose his driver‘s license for six months, to which he stated, ‘I don‘t give a damn. I don‘t, I don‘t want to take no tests.’ I then asked subject Hernandez, ‘You mean you dоn‘t want to take a blood test?’ He answered, ‘No.’ I asked him, ‘And you don‘t want to take a breath test?’ He answered, ‘No.’ I asked him, ‘And you don‘t want to take a urine test?’ He answered ‘Man, leave me alone. I don‘t want to take no tests, all I want to do is go home.‘” Hernandez was then taken to the Culver City jail and booked on the drunk driving charge.
On January 30, 1978, defendant Department of Motor Vehicles (DMV) informed Hernandez of the imminent suspension of his driver‘s license pursuant to section 13353. At Hernandez‘s request, an administrative hearing on the suspension was conducted on March 20, 1978, and on June 16, 1978, the DMV notified Hernandez that the validity of the suspension had been sustained.
2. The normal presumption of constitutionality applies to legislative measures regulating an individual‘s right to drive an automobile and such a mеasure is valid so long as its provisions reasonably relate to any legitimate state interest, such as the preservation of the health or safety of the public.
statute‘s enactment 15 years ago: “Our implied consent statute, including section 13353, was enacted to fulfill the need for a fair, efficient and accurate system of detection and prevention of drunken driving.” (Kesler v. Department of Motor Vehicles (1969) 1 Cal.3d 74, 77 [81 Cal.Rptr. 348, 459 P.2d 900].)
Prior to the enactment of the statute, both this сourt and the United States Supreme Court had explicitly held that when a person has been lawfully arrested for drunk driving the police, utilizing appropriate medical procedures, may forcibly remove a blood sample from the driver without his consent. (See Schmerber v. California, supra, 384 U.S. 757; People v. Duroncelay (1952) 48 Cal.2d 766, 771-772 [312 P.2d 690].) Despite the legality of such a coercive procedure, however, the Legislature recognized that “such an episode remains an unpleasant, undignified and undesirable one.” (People v. Superior Court (Hawkins) (1972) 6 Cal.3d 757, 764 [100 Cal.Rptr. 281, 493 P.2d 1145].) In enacting section 13353, the Legislature sought to obviate these consequences for the driver and “avoid the possible violence which could erupt if forcible tests were made upon a recalcitrant and belligerent inebriate” (Anderson v. Cozens, supra, 60 Cal.App.3d 130, 143), while at the same time preserving the state‘s strong interest in obtaining the best evidence of the defendant‘s blood alcohol content at the time of the arrest. Thus, “the Legislature devised an additional or alternative method of compelling a person arrested for drunk driving to submit to a test for intoxication, by providing that such person will lose his automobile driver‘s license for a period of six months if he refuses to submit to a test for intoxication. The effect of this legislation is to equip peace officers with an instrument of enforcement not involving physical compulsion.” (People v. Superior Court (Hawkins), supra, 6 Cal.3d at p. 765.)
Although plaintiff recognizes that the six-month suspеnsion sanction provided by
As our court explained in Wilke & Holzheiser, Inc. v. Dept. of Alcoholic Bev. Control (1966) 65 Cal.2d 349, 359 [55 Cal.Rptr. 23, 420 P.2d 735]: “In passing upon [a substantive due process challenge to a legislative police power measure], we exercise an extraordinary power over a coordinate branch of government and perform a correspondingly narrow function: we simply determine whether the statute reasonably relates to a legitimate governmental purpose.... ‘The doctrine...that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely...has long since been discarded....‘” (Italics added.)
We reaffirmed this fundamental constitutional principle in our recent decision in Hale v. Morgan (1978) 22 Cal.3d 388, 398 [149 Cal.Rptr. 375, 584 P.2d 512], emphasizing that “[i]n the exercise of its police power a Legislature does not violate due process so long as an enactment is...reasonably related to a proper legislative goal. The wisdom of the legislation is not at issue in analyzing its constitutionality, and neither the availability of less drastic remedial alternatives nor the legislative failure to resolve all related ills at once will invalidate a statute.” (Italics added.) (See also Cory v. Shierloh (1981) 29 Cal.3d 430, 438 [174 Cal.Rptr. 500, 629 P.2d 8].)
Plaintiff contends, however, that although this deferential substantive due process analysis may be appropriate in reviewing most police power measures, the foregoing constitutional principles should not apply to measures which impinge upon an individual‘s “right to drive.” Pointing to a number of California cases which indicate that legislative measures which significantly interfere or impinge upon “fundamental constitutional rights” are properly subjected to “strict judicial scrutiny” (see, e.g., Fair Political Practices Com. v. Superior Court (1979) 25 Cal.3d 33, 48-49 [157 Cal.Rptr. 855, 599 P.2d 46] (right to petition government); People v. Glaze (1980) 27 Cal.3d 841, 845-846 [166 Cal.Rptr. 859, 614 P.2d 291] (freedom of speech)), plaintiff contends that the “right to drive” constitutes such a “fundamental constitutional right.” He argues that legislative measures, such as the instant statute, which operate to limit one‘s right to drive are constitutional only if they pass muster under the rigorous strict scrutiny standard.
Past California cases, however, provide no support whatsoever for plaintiff‘s contention. Over 30 years ago, in Escobedo v. State of California (1950) 35 Cal.2d 870 [222 P.2d 1] (overruled on other grounds
More recently, in a series of cases reaching back more than a decade, the California Courts of Appeal have uniformly rejected the application of “strict judicial scrutiny” to challenges mounted against section 13353. In Spurlock v. Department of Motor Vehicles (1969) 1 Cal.App.3d 821, 830 [82 Cal.Rptr. 42], the earliest of these decisions, the court explained: “The interest which the Legislature is attempting to regulate by
McGlothlen v. Department of Motor Vehicles (1977) 71 Cal.App.3d 1005, 1021 [140 Cal.Rptr. 168], reiterated Spurlock‘s conclusion: “The right to drive a motor vehicle on the public highways is not such a fundamental right as to require strict scrutiny of any law which appears to classify the driving privileges of persons otherwise similarly situated, and to necessitate a compelling state interest before such classification may be justified.” (See also Department of Motor Vehicles v. Superior Court (1976) 58 Cal.App.3d 936, 942 [130 Cal.Rptr. 311].)10
Although plaintiff challenges the present vitality of these established California precedents on several grounds, each of the plaintiff‘s arguments is manifestly flawed. Plaintiff initially relies upon a series of recent cases of both the United States Supreme Court and of our own court involving procedural due process challenges to various aspects of a state‘s driver‘s license suspension process. (See, e.g., Bell v. Burson (1971) 402 U.S. 535 [29 L.Ed.2d 90, 91 S.Ct. 1586]; Dixon v. Love (1977) 431 U.S. 105 [52 L.Ed.2d 172, 97 S.Ct. 1723]; Mackey v. Montrym, supra, 443 U.S. 1; Rios v. Cozens, supra, 7 Cal.3d 792.) While these cases unquestionably hold “[t]hat the Due Process Clause applies to a state‘s suspension or revocation of a driver‘s license” (Mackey v. Montrym, supra, 443 U.S. 1, 10, fn. 7 [61 L.Ed.2d 321, 329]), none of the cases contains any suggestion whatsoever that in aрplying the substantive aspect of due process to such license suspension statutes, courts are to discard the normal presumption of constitutionality and to subject such statutes to strict judicial scrutiny rather than to the ordinary reasonable relationship standard.11
Plaintiff‘s reliance on this line of procedural due process cases appears to rest upon an assumption that whenever a “property” or “liberty” interest is accorded the protections of procedural due process, that interest becomes a “fundamental constitutional right” so that legislative measures regulating such an interest are necessarily subject to strict scrutiny. This assumption is totally unfounded. Recent decisions have established that the whole panoply of ordinary property rights are generally protected from summary termination or deprivation by procedural due process (see, e.g., Randone v. Appellate Department (1971) 5 Cal.3d 536, 547-552 [96 Cal.Rptr. 709, 488 P.2d 13]; Fuentes v. Shevin (1972) 407 U.S. 67, 88-90 [32 L.Ed.2d 556, 574-576, 92 S.Ct. 1983]) but no case has even remotely suggested that the constitutionality of substantive legislative measures regulating or restricting such “protected property” rights are to be judged under a “strict scrutiny standard. ”12
As Justice Brennan explained in New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co. (1978) 439 U.S. 96, 106-107 [58 L.Ed.2d 361, 373-374, 99 S.Ct. 403], in upholding the constitutionality of a California statute regulating business franchises: “Even if the right to franchise had constituted a protected interest [safeguarded by procedural due process guarantees] when California enacted the Automobile Franchise Act, California‘s Legislature was still constitutionally empowered to enact a general scheme of business regulation that imposed reasonable restrictions upon the exercise of the right.... At least since the demise of the concept of ‘substantive due process’ in the area of economic regulation, this court has recognized that ‘[l]egislative bodies have broad scope to experiment with economic problems....’ [Citation.]”
In addition to his misguided reliance on the procedural due process cases, plaintiff attempts to draw support from a second set of cases that is equally inapposite to the constitutional claim which he asserts. In McConville v. Alexis (1979) 97 Cal.App.3d 593 [159 Cal.Rptr. 49], the Court of Appeal was faced with the question of whether a trial court should apply the “substantial evidence” or the “independent judgment” standard of review in passing upon a challenge to a quasi-judicial administrаtive decision by the DMV which resulted in a six-month suspension of an individual‘s driver‘s license. As the McConville court noted, this court‘s decisions in Bixby v. Pierno (1971) 4 Cal.3d 130 [93 Cal.Rptr. 234, 481 P.2d 242] and Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28 [112 Cal.Rptr. 805, 520 P.2d 29], established that “[w]hen an administrative decision affects a right which has been legitimately acquired or is otherwise ‘vested,’ and when that right is of a fundamental nature from the standpoint of its economic aspect or its ‘effect...in human terms and the importance ...to the individual in the life situation,’ then a full and independent judicial review of that decision is indicated because ‘[t]he abrogation of the right is too important to the individual to relegate it to exclusive administrative extinction.‘” (Strumsky, 11 Cal.3d at p. 34, quoting Bixby, 4 Cal.3d at p. 144.)
Although an earlier Court of Appeal decision-McGue v. Sillas (1978) 82 Cal.App.3d 799 [147 Cal.Rptr. 354]-had held that the temporary loss of one‘s driver‘s license was not sufficiently grievous to warrant the application of the independent review standard, the McConville court rejected that conclusion and found instead that “there can be little question but that possession of a driver‘s license rises to the level of a fundamental right under Bixby in terms of both the economic implications relating thereto and ‘the importance of the possession ‘to the individual in the life situation.” (97 Cal.App.3d at p. 600.) Focusing only upon an excerpt of the above passage to the effect that “possession of a driver‘s license rises to the level of a fundamental right,” plaintiff in the instant case suggests that McConville provides
Plaintiff‘s contention is clearly specious. We may assume without deciding that the loss of a driver‘s license does implicate interests sufficiently important “to the individual in the life situation” to warrant independent review of a quasi-judicial administrative decision suspending or terminating such right. It does not follow, however, that legislative measures regulating or limiting the possession of a driver‘s license are subject to strict judicial scrutiny.
In fact, plaintiff‘s argument in this regard betrays a serious misunderstanding of the basic foundation of the Bixby-Strumsky doctrine. As both Bixby and Strumsky explain, the standard of review question with which those cases deal relates to the appropriate relationship between administrative and judicial adjudicatory decisions, and does not concern the constitutional lеgitimacy or validity of legislative policy judgments at all. Thus, under Bixby-Strumsky, the “fundamental right” category does not identify areas in which substantive legislative judgments are in any manner constitutionally suspect or justify unusual judicial scrutiny; rather, that category simply encompasses those quasi-judicial administrative decisions that have “an impact on the individual ‘sufficiently vital...to compel a full and independent review’ by the court.” (Interstate Brands v. Unemployment Ins. Appeals Bd. (1980) 26 Cal.3d 770, 779 [163 Cal. Rptr. 619, 608 P.2d 707].)
Indeed, even a cursory review of the Bixby-Strumsky line of decisions makes it abundantly clear that the applicability of the independent judgment standard of review does not in any sense suggest that legislative measures pertaining to the individual interest at issue are properly subject to strict scrutiny review. Thus, for example, in Dickey v. Retirement Board (1976) 16 Cal.3d 745, 750-751 [129 Cal.Rptr. 289, 548 P.2d 689], we held that the independent judgment standard should be applied in reviewing an administrative decision affecting an employee‘s receipt of disability payments, but we in no way intimated that the normally extensive legislative measures regulating the terms and eligibility of such disability payments were properly subject to a strict scrutiny constitutional review.
Similarly, our decision in Strumsky-applying independent review to an administrative determination denying retirement benefits-plainly did not contemplate that all statutory measures dealing with the subject
In sum, past California cases clearly establish that the constitutionality of legislative measures regulating the granting and suspension of driver‘s licenses for the public safety is to be judged against the restrained substantive due process standard traditionally applied to ordinary police power measures. Plaintiff has demonstrated no basis whatsoever to justify a departure from that approach. Inasmuch as section 13353, subdivision (b) bears a reasonable relation to the state‘s interest in the effective enforcement of its drunk driving laws, we conclude that the statute is constitutional.
The judgment is affirmed.
Richardson, J., Tamura, J.,* and Ashby, J.,* concurred.
NEWMAN, J.-I concur in the result. In my view the troubling issue (unfortunately not argued here) is equal protection, not due process. We may agree that the six-month penalty is not excessive. It does not follow that therefore the process of penalizing is nondiscriminatory.1
The questionable discrimination involves comparing the harm done appellant here with the apparent tolerance accorded to someone who, having taken the tests, flunks. That person may continue to drive pending trial, it seems, even when the tests show “0.10 percent or more by weight of alcohol in [his or her] blood [when, accordingly,] it shall bе presumed that the person was under the influence of intoxicating liquor at the time of the alleged offense.” (
*Assigned by the Chairperson of the Judicial Council.
The attorney here hypothesized a presumption and argued that, under the “compelling [state] interest test,” his presumption exemplifiеs “less drastic means.” He contends that California‘s interest in highway safety would be as well-served by a presumption that his client was under the influence of alcohol as by the six-month suspension of the license.
I believe that neither the federal nor the state Constitution requires that the Legislature adopt that or a similar proposal. The aim of the six-month suspension is to persuade certain drivers to take at least one of the tests. The Legislature has concluded that evidence thus obtained and utilized pursuant to rules based on varying levels of intoxication is likely to be useful and reliable at trial. Test results are treated as superior to testimonial disputes between defendants and the arresting officers. It is true that a presumption might jeopardize a driver‘s hope for an adjudication in his favor, and that thus he might be persuaded to submit to testing. By no means, though, should that lead us to conclude that the Legislature‘s choice of a more powerful persuader (i.e., its threat of a six-month suspension) was unauthorized. (Cf. People v. Glaze (1980) 27 Cal.3d 841, 847 [166 Cal.Rptr. 859, 614 P.2d 291].)
MOSK, J.-I dissent.
It is impossible to explain to a bus driver, a taxi driver, a truck driver, a sales representative, a driver of an ambulance or a fire engine, a public utility repairman, an electrician or a plumber, a physician on hospital call, the driver of an emplоyees’ carpool, or a mother fulfilling her responsibility to deliver hers and her neighbors’ children to school that their absolute dependence upon operating a motor vehicle is not a fundamental right. Indeed the plaintiff Hernandez is a bus driver; thus the deprivation of his driver‘s license directly and adversely affects his very livelihood and his ability to survive economically.
The majority pay lip service to automobile travel as “an important aspect of life in contemporary California society” and concede the authorities are “fully cognizant of the practical importance of an individual‘s ‘right to drive.” But then they proceed to accord that significant element of contemрorary life the barest minimum of constitutional protection.
The result is contrary to the views this court expressed in Bixby v. Pierno (1971) 4 Cal.3d 130, 144 [93 Cal.Rptr. 234, 481 P.2d 242], and repeated in Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34 [112 Cal.Rptr. 805, 520 P.2d 29]: “[w]hen an administrative decision affects a right which has been legitimately acquired or is otherwise ‘vested,’ and when that right is of a fundamental nature from the standpoint of its economic aspect or its ‘effect... in human terms and the importance... to the individual in the life situation,’ then a full and independent judicial review of that decision is indicated because ‘[t]he abrogation of the right is too important to the individual to relegate it to exclusive administrative extinction.‘” (Italics in original.)
The Court of Appeal in McConville v. Alexis (1979) 97 Cal.App.3d 593, 600 [159 Cal.Rptr. 49], arrived at what I believe to be the appropriate analysis: “As wе see it, there can be little question but that possession of a driver‘s license rises to the level of a fundamental right under Bixby in terms of both the economic implications relating thereto and ‘the importance of’ the possession ‘to the individual in the life situa-
The United States Supreme Court reached a similar conclusion in Bell v. Burson (1971) 402 U.S. 535, 539 [29 L.Ed.2d 90, 94, 91 S.Ct. 1586]: “[o]nce [driver‘s] licenses are issued... their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees.”
I am not prepared to declare that the instant statute fails to meet the strict scrutiny test. I merely conclude that the majority err in not measuring the section by that test. It is, of course, considerably more exacting than the simplistic methods employed in the prevailing opinion.
Bird, C. J., concurred.
Appellant‘s petition for a rehearing was denied November 19, 1981. Mosk, J., was of the opinion that the petition should be granted.