PERKEY v. CALIFORNIA DEPARTMENT OF MOTOR VEHICLES

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Court of Appeal, Third District, California.

Christopher Ann PERKEY, Plaintiff and Appellant, v. CALIFORNIA DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent.

Civ. 22632.

Decided: December 22, 1983

Brent A. Barnhart, Sacramento, for plaintiff and appellant. John K. Van De Kamp, Atty. Gen., N. Eugene Hill, Asst. Atty. Gen., and Faith J. Geoghegan, Deputy Atty. Gen., for defendant and respondent.

Vehicle Code section 12800, subdivision (c), operative July 1, 1982, requires every application for a driver's license to contain a “legible print of the thumb or finger of the applicant.”  (Stats.1981, ch. 1102, § 1.5.)   The application containing the fingerprint is retained by the Department of Motor Vehicles (DMV).   The print does not appear on the driver's license itself.   In October 1982, plaintiff brought an action seeking to compel the DMV to renew her driver's license without regard to the statutory requirement of a thumb or fingerprint.   The trial court found the challenged Vehicle Code provision constitutional and denied plaintiff's petition.   Plaintiff appeals.

The trial court's decision was based on the declarations of the parties.   The evidence establishes without conflict that on August 25, 1982, plaintiff applied for a California driver's license at a DMV branch office in Sacramento.   Plaintiff completed a renewal form, paid a $10 application fee and passed eye and written examinations.   When asked to place her thumbprint on the renewal application, she declined.   DMV refused to issue plaintiff a driver's license without a thumbprint.

Plaintiff first became licensed to drive an automobile in 1959 in New Jersey.   She was subsequently licensed to drive in Indiana and Wisconsin before moving to California in 1975.   Since 1975 and until denied renewal in 1982, she has held a valid California driver's license.   Never before had fingerprinting been required of plaintiff as a condition of obtaining a driver's license, and at no time has plaintiff ever been fingerprinted by a state agency.   Since renewal of her driver's license was denied, plaintiff has ceased operating a motor vehicle and declares that this has caused significant hardships for her, her husband, and her two young children.

Plaintiff maintains (1) that refusal to renew her driver's license for failure to submit to thumbprinting constitutes a denial of substantive due process and (2) that conditioning the license on the thumbprint requirement is an invasion of her fundamental right to privacy as guaranteed by article I, section 1, of the California Constitution.   Given the evidence before the trial court, plaintiff's claim of unconstitutionality necessarily hinges on the mere obtaining of her thumbprint by DMV, not with any disclosure or use of the print once acquired.   Thus plaintiff makes a facial challenge to Vehicle Code section 12800, subdivision (c).   We shall affirm the judgment.

I.

Plaintiff contends that her interest in retaining a driver's license is substantial, circumscribed only by the state's reasonable authority to regulate traffic safety.   She maintains that the thumbprint requirement bears no reasonable relationship to any safety interest.

 Plaintiff would define too narrowly the state's police power to enact legislation regulatory of driving.   Although the right to drive has been identified as a substantial one which, when vested, triggers heightened procedural safeguards before the right may be revoked (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 398, 188 Cal.Rptr. 891, 657 P.2d 383;  Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536–537, 189 Cal.Rptr. 512, 658 P.2d 1313), it does not follow that substantive legislation pertaining to the right to drive invoke the strict scrutiny of the courts.  (Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 83, 177 Cal.Rptr. 566, 634 P.2d 917;  see also Berlinghieri, supra, 33 Cal.3d at pp. 396–397, 188 Cal.Rptr. 891, 657 P.2d 383.)   In Hernandez, a case considering whether California's “implied consent” legislation comported with substantive due process, the Supreme Court opined:  “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 ․ the area of driving is particularly appropriate for extensive legislative regulation, and ․ 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.”  (Hernandez, supra, 30 Cal.3d at p. 74, 177 Cal.Rptr. 566, 634 P.2d 917.)  “The normal presumption of constitutionality applies to legislative measures regulating an individual's right to drive an automobile and such a measure 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. ”  (Emphasis in original;  id., at p. 76, 177 Cal.Rptr. 566, 634 P.2d 917.)   To be constitutional, the law need not in every respect be narrowly consistent with the Legislature's aims.  “It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”  (Fn. omitted;  id., at p. 79, 177 Cal.Rptr. 566, 634 P.2d 917, quoting Williamson v. Lee Optical of Oklahoma (1955) 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed.2d 563, 572.) 1

 Viewed with the deference due the policy choices of the Legislative branch, the statutory thumbprint requirement on which license renewal is conditioned is lawful if the regulation reasonably relates to any legitimate governmental purpose.   The rational relationship test is easily met here.

In enacting section 12800, subdivision (c), the Legislature expressed its intent as follows:

“The state has adopted a policy that the driver's license and identification card issued by the Department of Motor Vehicles are the basic identification documents in this state and that the state has a compelling interest in insuring the accuracy and integrity of this identification system.   It is the purpose and intent of this act to further secure the accuracy and integrity of this system by requiring the application for a license or card to include a legible thumb or fingerprint of the applicant, ․”  (Stats.1981, ch. 1102, § 3.)

The thumb or fingerprint requirement is explicitly related to the legislative purpose of “insuring the accuracy and integrity of [an] identification system.”  (Ibid.)  Fingerprinting long has been recognized as a valuable and reliable means of identifying an individual.  (See Thom v. New York Stock Exchange (S.D. New York 1969) 306 F.Supp. 1002, 1009, aff'd 425 F.2d 1074;  Davis v. Mississippi (1969) 394 U.S. 721, 727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676, 681.)   By contrast the declarations submitted by DMV support the conclusion that the photograph appearing on the driver's license is not an unerringly reliable means of identification because, unlike a thumbprint, one's appearance easily can be altered.   As well, a signature readily may be changed and the small exemplar appearing on the license rarely exhibits sufficient detail or peculiarity to permit positive identification.

The justifications advanced by DMV for an accurate identification system are related to legitimate governmental purposes.   One such purpose, established by DMV declarations, is to deter fraudulent applications for licenses to drive.   To the extent that persons who fraudulently apply for a license include unsafe drivers, the state's interest in traffic safety is served by the thumb- or fingerprint requirement.   DMV also uses the thumb- or fingerprint to differentiate between two or more licensed drivers who have the same name and date of birth and to discover when the same individual has been mistakenly issued two driver's licenses.   Those uses also relate to the state's interest in traffic safety.

Other reasons given for the state's interest in ensuring the reliability of the driver's license as the state's basic identification document include the deterrence of other crimes utilizing false identification and the use of the thumb or fingerprint in the investigation and apprehension of persons suspected of fraud and other crimes.   The print appearing on driver's license applications also may be the only available means for certain state agencies to identify deceased persons and disaster victims.

Although these latter purposes extend beyond a concern with traffic safety, they nevertheless relate to legitimate state interests in preserving the health, safety, and welfare of the public.   The rational relationship test does not demand that the DMV print requirement relate exclusively or narrowly to physical safety on the roadways or other driving concerns.  (Compare the test in Committee to Defend Reproductive Rights v. Myers (1981) 29 Cal.3d 252, 258, 172 Cal.Rptr. 866, 625 P.2d 779, a case strictly scrutinizing legislation conditioning the receipt of a benefit upon the waiver or impairment of a constitutional right.)

II.

Plaintiff contends that conditioning her right to drive on the furnishing of a thumbprint for the purpose of perfecting a basic identification system unconstitutionally impinges on her right of privacy.   The thrust of this argument is that the thumbprint, which records a physical attribute unique to each individual, provides an identifying link to all data in the possession of the government and private entities which have her driver's license number;  and the loss of control over such unique information gives rise to a great and enduring risk of its misuse in collecting and distributing personal information about her.   Hence, the compelled relinquishment of the print information to DMV in and of itself constitutes an invasion of her privacy.

 In this age of central storage and easy accessibility of computerized data, it is of course possible to conjure up scenarios in which the linkage of a person's fingerprint to other data could thus implicate constitutionally protected privacy rights.2  However, examples of potential misuse are not ripe for adjudication in this facial attack on the statutory fingerprint requirement.  (See Whalen v. Roe (1977) 429 U.S. 589, 600–602, 606–607, 97 S.Ct. 869, 876–77, 879–80, 51 L.Ed.2d 64, 74–75, 78.)   A constitutionally protected privacy interest simply is not implicated in requiring a fingerprint on a driver's license application absent further showing that the information is improperly used or published in such a way as to link, collect, or disseminate information of a private nature about an individual.  (Miller v. Murphy (1983) 143 Cal.App.3d 337, 344–346, 191 Cal.Rptr. 740;  See Stackler v. Department of Motor Vehicles (1980) 105 Cal.App.3d 240, 246–247, 164 Cal.Rptr. 203.)

 The DMV obtains nothing of a private nature simply by acquiring a fingerprint.   Fingerprinting in a noncriminal context is widespread throughout the United States (Thom v. New York Stock Exchange, supra, 306 F.Supp. at p. 1008, appen. at pp. 1012–1013).   In California, the print is routinely required of a registrant or applicant for a professional or occupational license (People v. Stuller (1970) 10 Cal.App.3d 582, 595, 89 Cal.Rptr. 158).   Excepting its use in connection with or in association with other matters touching on personal intimacy, fingerprinting is no longer considered an indignity, stigma, or embarrassment.  (Thom v. New York Stock Exchange, supra, 306 F.Supp. at p. 1009;  Sterling v. City of Oakland (1962) 208 Cal.App.2d 1, 6–7, 24 Cal.Rptr. 696;  see also Gerety, “Redefining Privacy,” 12 Harvard Civil Rights-Civil Liberties Law Review (Spring 1977) 233, 290 at fn. 199.)   In short, fingerprinting per se involves no probing into an individual's private life or thoughts (see Davis v. Mississippi, supra, 394 U.S. at p. 727, 89 S.Ct. at p. 1397, 22 L.Ed.2d at p. 681) and consequently involves no more intrusion into the personal life of an applicant than the acquisition of other ostensible identifiers such as a photograph, signature, or social security number.3  (See Stackler v. Department of Motor Vehicles, supra, 105 Cal.App.3d at p. 247, 164 Cal.Rptr. 203;  Thom v. New York Stock Exchange, supra, 306 F.Supp. at p. 1009.)

Aside from the lack of any inherent privacy interest in one's fingerprint, the inconvenience of supplying a print when applying for a driver's license is minimal.  (Cf. Davis v. Mississippi, supra, 394 U.S. at p. 727, 89 S.Ct. at p. 1397, 22 L.Ed.2d at p. 681;  People v. Stuller, supra, 10 Cal.App.3d at p. 595, 89 Cal.Rptr. 158.)   Moreover, the very nature of a thumb- or fingerprint is proof against problems associated with loss of control over the accuracy, completeness, or obsolescence of other kinds of information implicating privacy interest (Cf. White v. Davis (1975) 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, 533 P.2d 222;  Gerety, “Redefining Privacy,” 12 Harvard Civil Rights-Civil Liberties Law Review, supra, at pp. 287–288)  The accuracy and reliability of the recorded print as an identifier of its source is not open to question.  (See Thom v. New York Stock Exchange, supra, 306 F.Supp. at p. 1009;  Davis v. Mississippi, supra, 394 U.S. at p. 727, 89 S.Ct. at p. 1397, 22 L.Ed.2d at p. 681.)

Plaintiff does not dispute the reliability of a fingerprint as an identifier but rather asserts that its very ability to authenticate the identity of persons issued driver's license numbers constitutes the invasive link to the person of other personal data.   What plaintiff ignores, however, is that it is not the mere furnishing of an incontestable identifier but rather the independent collection or dissemination of personal data inclusive of the driver's license number which may or may not invade an individual's privacy.   Outside the context of traffic law enforcement, plaintiff is under no compulsion to display her driver's license or reveal the number to anyone.   She “․ is of course free to use it as a convenient and ready means of identification, but whether or not [she] does so is entirely up to [her].”  (See Stackler v. Department of Motor Vehicles, supra, 105 Cal.App.3d at p. 246, 164 Cal.Rptr. 203.)   Where she does choose to display her license for identification, the fact the reliability of the information so communicated is enhanced by fingerprint verification of her identity raises no constitutional issue.   The overbroad use of the print as a standard identifier in order to facilitate the collection of information about individuals (see Doyle v. Wilson (D.C.Del.1982) 529 F.Supp. 1343, 1348) may loom as a potential danger, but it is not at issue here.

The right of privacy embodied in article I, section 1, of the California Constitution is directed at four principal “mischiefs”:  “(1) ‘government snooping’ and the secret gathering of personal information;  (2) the overbroad collection and retention of unnecessary personal information by government and business interests;  (3) the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party;  and (4) the lack of a reasonable check on the accuracy of existing records.”  (White v. Davis, supra, 13 Cal.3d at page 775, 120 Cal.Rptr. 94, 533 P.2d 222;  see also Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 830, 134 Cal.Rptr. 839;  Central Valley Chap. 7th Step Foundation v. Younger (1979) 95 Cal.App.3d 212, 235–236, 157 Cal.Rptr. 117;  Stackler v. Department of Motor Vehicles, supra, 105 Cal.App.3d at p. 247, 164 Cal.Rptr. 203.)

Clearly, the present circumstances do not involve secret governmental snooping as was the case in White v. Davis, where police officers posing as students covertly engaged in intelligence gathering at a state university.  (Supra, 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222.)   Nor can there be any question concerning the long-term accuracy of the fingerprint as a record of a person's identity.   Likewise, plaintiff makes no claim that the fingerprint requirement in fact violates the third mischief of “improper use of information properly obtained.”  (Compare Porten v. University of San Francisco, supra, 64 Cal.App.3d 825, 134 Cal.Rptr. 839;  Central Valley Chap. 7th Step Foundation v. Younger, supra, 95 Cal.App.3d at p. 236, 157 Cal.Rptr. 117.)   Plaintiff's focus here is only on the second mischief—the overbroad collection and retention of unnecessary personal information by government and business interests.   However, the information intrinsically contained in one's fingerprint is not personal or private in the constitutional sense.   Accordingly, the policy reasons underlying the fingerprint requirement are not subject to strict scrutiny and are no more so susceptible simply because of speculation concerning the potential for misuse or unwarranted publication.   (See Miller v. Murphy, supra, 143 Cal.App.3d at pp. 344–346, 191 Cal.Rptr. 740.)   For present purposes, it is enough that a rational relationship exists between the fingerprint requirement and the problem which the legislation sought to correct.  (See part I, ante.)

III.

 Finally, plaintiff contends that the conditioning of her right to drive upon submitting a fingerprint violates the doctrine of unconstitutional conditions.   However, in order for there to be a violation of the doctrine, a constitutional right must first be impaired.  (Committee to Defend Reproductive Rights v. Myers, supra, 29 Cal.3d at pp. 257–258, 172 Cal.Rptr. 866, 625 P.2d 779.)   As we have stated in parts I and II, ante, no specific interest of constitutional proportions is implicated under the circumstances of this case.

The judgment is affirmed.

FOOTNOTES

1.   Plaintiff suggests further that the right to retain a driver's license implicates the constitutional right to travel.   However, the right to travel cases are concerned generally with an individual's right to reach a given destination, not with restrictions on the particular means of transportation in reaching that destination.  (See McGue v. Sillas (1978) 82 Cal.App.3d 799, 805, 147 Cal.Rptr. 354;  see also Hernandez, supra, 30 Cal.3d at pp. 82–83, 177 Cal.Rptr. 566, 634 P.2d 917, limiting the reach of contrary language in McConville v. Alexis (1979) 97 Cal.App.3d 593, 600, 159 Cal.Rptr. 49, to its procedural context.)

2.   For example, latent prints left by unidentified persons attending an unpopular political meeting might be linked with known DMV prints, or more ominously the driver's license might become the equivalent of a domestic passport.  (See Kolender v. Lawson (1983) 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (California vagrancy statute, construed as requiring credible and reliable identification in order to avoid prosecution, held void for vagueness).)

3.   Significantly, federal law specifically authorizes a state to require an applicant for driver's license to furnish a social security number for purposes of identification (42 U.S.C. § 405(c)(2)(C)(i)) as an exception to Public Law 93–579, section 7 of the Privacy Act of 1974 (see 5 U.S.C. § 522a note;  Doyle v. Wilson (D.C.Del.1982) 529 F.Supp. 1343, 1348–1349).

PUGLIA, Presiding Justice.

CARR and SIMS, JJ., concur.

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