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Hernandez v. Department of Motor Vehicles10/22/1981
possibly considerably less reliable." (Taylor, Blood-alcohol presumptions: Guilty until proved innocent (1978) 53 State Bar J. 170, 177.)
The attorney here hypothesized a presumption and argued that, under the "compelling [state] interest test," his presumption exemplifies "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].)
I am unable to indorse the view that the right to drive is not fundamental. But the statute nonetheless survives because it meets the strict scrutiny test.
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 employees' 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 contemporary 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]: "[when] 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 ' 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, 60
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