HERNANDEZ v. CALIFORNIA DEPARTMENT OF MOTOR VEHICLES (1980)

Appellant appeals from judgment of the Superior Court denying petition for writ of mandate to Department of Motor Vehicles and seeking to declare Vehicle Code section 13353 unconstitutional. We affirm.

Appellant's license was suspended for six months pursuant to Vehicle Code section 13353 upon appellant's refusal to submit to any chemical test when arrested for drunk¹ driving. His sole contention on appeal is that the code section is unconstitutional. Appellant claims that the statute denies him substantive due process under the California Constitution. Initially, appellant concedes that there is no problem of procedural due process.

Appellant's argument is (1) the right to drive an automobile is a fundamental right; (2) there is a valid and compelling state interest in keeping drunk drivers off the road; (3) that interest, however, can be served by means less drastic than suspension of a suspected drunk driver's license when such a driver refuses to submit to a chemical test. We reject appellant's contention and argument.

Appellant's contention has been considered previously. Appellant's entire argument is premised upon the claim that driving an automobile is a fundamental, constitutional right and of such important economic and social dimension that it cannot be limited for any purpose even a valid, compelling state interest, except by the very least drastic means.

We need not decide whether driving an automobile is a “fundamental” right as suggested in the dicta of McConville v. Alexis (1979) 97 Cal.App.3d 593, 599, 159 Cal.Rptr. 49, or whether it is not, as said in cases prior to and subsequent to McConville (see e.g., Bauchanan v. Department of Motor Vehicles (1979) 100 Cal.App.3d 293, 298, fn. 3, 160 Cal.Rptr. 557). Whatever it is, the right to drive an automobile is not such a fundamental right as appellant claims. Irrespective of the express use or omission of the words “substantive due process”, other cases have confronted the question of substantive due process and have upheld the statutory scheme of Vehicle Code section 13353 as constitutional. (Kesler v. Department of Motor Vehicles (1969) 1 Cal.3d 74, 77, 81 Cal.Rptr. 348, 459 P.2d 900; McGue v. Sillas (1978) 82 Cal.App.3d 799, 806, 147 Cal.Rptr. 354; Spurlock v. Department of Motor Vehicles (1969) 1 Cal.App.3d 821, 830, 82 Cal.Rptr. 42.)

The United States Supreme Court has considered this very same problem. That court recognized that once obtained, the license to drive an automobile constitutes an “important interest” approaching a “property right.” (Bell v. Burson (1971) 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90, 94.) Nonetheless, the court has specifically held that a state may summarily suspend a driver's license based upon his refusal of a chemical test. (Mackey v. Montrym (1979) 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321.) Statutes providing for such license suspension on this and other grounds, and even without a prior hearing, do not violate due process. (Mackey v. Montrym, supra, 443 U.S. 14, 99 S.Ct. 2619; Dixon v. Love (1977) 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172.)

Appellant contends that less drastic means are available to achieve the statute's purpose. He suggests that rather than suspend his license for refusal to take a chemical test, his refusal be used to create a presumption at trial that he was under the influence of alcohol. His argument is unavailing here. The decision how to write the law in order to achieve its legitimate ends is within the exclusive province of the Legislature, not the court. This includes the decision of how strong a penalty is necessary to make it effective. (Mackey v. Montrym, supra, 443 U.S. 1, 17, 99 S.Ct. 2612, 2621, 61 L.Ed.2d 321, 334.) Secondly, substantive due process does not require that only the least drastic means be used to promote or to achieve a compelling state interest. “. . . ‘(L)east drastic means' is a slippery slope and also the signal of the result the Court has chosen to reach. A judge would be unimaginative indeed if he could not come up with something a little less ‘drastic’ or a little less ‘restrictive’ in almost any situation, and thereby enable himself to vote to strike legislation down.” (Elections Bd. v. Socialist Workers Party (1979) 440 U.S. 173, 188-189, 99 S.Ct. 983, 993, 59 L.Ed.2d 230 (conc. opn. of Blackmun, J.).) The regulatory scheme is valid if there is a rational relationship between the regulation and its purpose. (Spurlock v. Department of Motor Vehicles, supra, 1 Cal.App.3d 821, 830, 82 Cal.Rptr. 42; Williamson v. Lee Optical of Oklahoma (1955) 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563.) The license suspension feature of the implied consent law has been recognized as rationally serving a valid purpose. (Kesler v. Department of Motor Vehicles, supra, 1 Cal.3d 74, 77, 81 Cal.Rptr. 348, 459 P.2d 900.)

The judgment (order denying petition for writ of mandate) is affirmed.

FOOTNOTES

1.  The statute forbids driving while under the influence of intoxicating liquor and/or drugs (Veh.Code, s 23102); for brevity we use the popularly accepted term drunk driving.

BEACH, Associate Justice.

ROTH, P. J., and COMPTON, J., concur.