Indiana Law Review Summary Driver's License Suspensions R. George Wright* In Ruge V. Kovach,^ the Indiana Supreme Court rejected a procedural due process challenge to the Indiana statutory^ procedures providing for pre-hearing suspension of the driver's license of any person arrested after being found by chemical testing to have been driving with a blood alcohol level of .10 percent or greater. ^ The court held, largely in view of the statutory requirement of a pre-suspension independent judicial determination of probable cause"* and a ''prompt" post-suspension ju- dicial hearing,^ that the statute afforded all the process that was due. The supreme court set the standard of review in Ruge by determining that the Code chapter involved^ was administrative or civil in nature, and not criminal,^ and that while the "entitlement" of a driver's license rose to the level of a protectible property interest,^ no fundamental right was implicated by the statute.^ The court was then able to resolve the due process question by examining the United States Supreme Court's analyses in Mackey v. Montrym^^ and Dixon v. Love" and applying the well-known balancing test mandated by Matthews v. Eldridge.^^ While the driver's interest in * Bigelow Fellow and Instructor of Law, University of Chicago School of Law. A.B., University of Virginia, 1972; Ph.D., Indiana University, 1976; J.D., Indiana Uni- versity School of Law—Indianapolis, 1982. '467 N.E.2d 673 (Ind. 1984). ^IND. Code §§ 9-11-1-1 to -4-15 (Supp. 1985). ^A pretrial license suspension may also stem from a driver's refusal to submit to a chemical test for alcohol, but this circumstance was not presented in Ruge. A refusal to submit to testing was instead present in the leading pre-hearing license suspension case, Mackey v. Montrym, 443 U.S. 1 (1979), which rejected a due process challenge against a Massachusetts statute. Id. at 19. 'See 467 N.E.2d at 676-77. 'See id. at 681. See also Roberts v. State, 474 N.E.2d 144, 147 (Ind. Ct. App. 1985) (interpreting Ruge in the context of a refusal to submit to testing). '•Ind. Code § 9-11-4 (Supp. 1985). M67 N.E.2d at 677 (citing prior Indiana cases). See also Szczech v. Comm'r of Pub. Safety, 343 N.W.2d 305, 306 (Minn. Ct. App. 1984) (holding a comparable Minnesota statute to be remedial and nonpenal on the grounds that it was intended for the public protection). '*467 N.E.2d at 678 (citing cases). See also Illinois v. Batchelder, 463 U.S. 1112 (1983). ^467 N.E.2d at 677-78 (citing cases). See also Hernandez v. Dep't of Motor Vehicles, 30 Cal. 3d 70, 634 P.2d 917, 177 Cal. Rptr. 566 (1981). '"443 U.S. 1 (1979). "431 U.S. 105 (1977) (holding constitutional an Illinois statute allowing pre-hearing license suspensions upon a showing of repeated traffic offense convictions). '^424 U.S. 319 (1976). Eldridge balancing requires a judicial consideration of: 47 48 INDIANA LAW REVIEW [Vol. 19:47 operating his vehicle pending a full hearing was recognized as sub- stantial,'' a prompt post-suspension review'^ and the statutory provision for granting of a "hardship license"" minimized the weight of the driver's interest.'^ The risk of an erroneous deprivation of a driver's property interest in his license under the Indiana statutory procedure was then held to be acceptable. In particular, the court held that "the chemical test required by our statute represents a 'reasonably reliable basis for con- cluding that the facts justifying the official action are as a responsible governmental official warrants them to be.' "'^ Finally, the court determined the governmental interest underlying the challenged statute to be a "most compelling interest in highway safety and public welfare,"'^ specifically, the interest "in keeping its highways safe by removing drunken drivers from [Indiana's] roads. "'^ On this basis, the supreme court reversed the trial court and held the summary license suspension statute constitutional. ^° In its reasoning and result, Ruge is clearly within the mainstream of the developing constitutional law.^' Particularly in view, though, of First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute pro- cedural requirement would entail. Id. at 334-35. "467 N.E.2d at 678-79. 'Vc^. at 679. '7e, e.g., Reese & Borgel, Summary Suspension of Drunken Drivers' Licenses—A Preliminary Constitutional Inquiry, 35 Ad. L. Rev. 313, 324 n.65 (1983). "467 N.E.2d at 681. ^M at 679. 1986] SUSPENSIONS 51 by the court's holding, on the risk of erroneous deprivation factor, merely that "the chemical test required by our statute represents a 'reasonably reliable basis for concluding that the facts justifying the official action are as a responsible governmental official warrants them to be.' "^5 The third and final balancing factor considered in Ruge was the nature and magnitude of the public interest at stake. ^'^ The error that courts should avoid in this regard is conceiving of the public interest as, along with avoiding administrative and fiscal costs, the generalized importance of safe highways or **removing drunken drivers" from the roads. ^^ This approach loses sight of the comparative nature of the due process balancing. The issue is the relative merit of pre- and post- suspension hearings. Even if it is assumed that the post-suspension hearing system contributes in some measure toward achieving the safety goal, this does not by itself establish the degree of superiority of the post- suspension system over the pre-suspension hearing procedure with respect to improving highway safety. The court in Ruge cited the Supreme Court decision in Mackey for the view that the pre-hearing suspension procedure was "critical" to achieving the public interest at stake. ^^ Ruge quoted Mackey to the effect that " '[s]tates surely have at least as much interest in removing drunken drivers from their highways as in summarily seizing mislabeled drugs or ''Id. at 680 (quoting Mackey v. Montrym, 443 U.S. 1, 13 (1979)). While infallibility is not a requirement of due process, both the factual determinations that a given drivet has failed the breathalyzer test, and the apparently more clear-cut determination that he has refused to take the test, are often subject to some question. The reliability of the breathalyzer in this context is defended in Commonwealth v. Neal, 392 Mass. 1, 464 N.E.2d 1356 (1984); Heddan v. Dirkswager, 336 N.E.2d 54 (Minn. 1983) (en banc); Romano v. Kimmelman, 96 N.J. 66, 474 A.2d 1 (1984); State v. Suping, 312 N.C. 421, 323 S.E.2d 350 (1984). Some of the risks associated with at least the most commonly used breathalyzer models are referred to in Walker v. State, 454 N.E,2d 425, 428 (Ind. Ct. App. 1983) (discussing literature indicating susceptibility of Smith & Wesson Model 900A to radio interference); Denman v. State, 432 N.E.2d 426, 430 (Ind. Ct. App. 1982) (discussing degree of complexity of breathalyzer operational checklist). See also Hampton V. State, 468 N.E.2d 1077, 1079 (Ind. Ct. App. 1984) (discussing case of defendant who could not coherently answer questions of police, appeared unsteady on his feet, and who smelled of alcohol, but registered .00 on his breathalyzer test). Even the question of whether a person has refused a breathalyzer examination is often not free from doubt. The courts are split, for example, on whether the refusal to submit must be express, or may be inferred under the circumstances. See People v. Carlyle, 130 111. App. 3d 205, 209, 474 N.E.2d 9, 11-12 (1985) (citing cases). See also Thacker V. State, 441 N.E.2d 708 (Ind. Ct. App. 1982) (verbal consent to test vitiated by driver's belligerent behavior impeding or threatening to impede test) (decided under prior "knowing refusal" statute). ^M67 N.E.2d at 680. ''See id. at 680-81. ^"M at 681 (citing Mackey v. Montrym, 443 U.S. 1, 17-18 (1979)). 52 INDIANA LAW REVIEW [Vol. 19:47 destroying spoiled foodstuffs.' "-'' Finally, Mackey was quoted for a number oi empirical arguments for the deterrence value, or the superior deterrence value, of summary suspensions, and for the cost and delay of a pre-suspension hearing procedure/^^ Troublesome here is that questions of deterrence, or of whether a given procedure is a significantly better deterrent than a different pro- cedure, are inescapably empirical questions, to be resolved by evidence and statistical analysis of at least an informal sort, and not by appeal to Supreme Court text or by judicial notice. The court in Ruge discussed the public interest factor with no explicit attention to such matters as which party bore the burden of production and of proof, or how such burdens could be discharged, or the degree of deference owed the trial court. It is at least conceivable that the extent of drunken driving does not significantly depend upon whether the required hearing takes place prior to the suspension or within twenty days thereafter. It is entirely plausible that a far more crucial factor is the perceived probability of being caught and receiving any significant sanction at all, perhaps in conjunction with the severity of the punishment inflicted, independent of the timing of the punishment."^' The evidence in support of the empirical conclusions adopted by the court in Ruge is tenuous at best."*^ This is not to suggest that the state should not be accorded wide latitude to experiment reasonably with techniques to reduce the level of drunken driving. "^^ But the state should be encouraged to maximize the quality of its evidentiary presentation, lest the due process balancing be an entirely intuitive, arm-chair process. '''* '467 N.E.2d at 681 (quoting Mackey v. Montrym, 443 U.S. 1, 17-18 (1979)). ^'467 N.E.2d at 681 (quoting Mackey v. Montrym, 443 U.S. 1, 18 (1979)). "5ee L. Ross, Deterring the Drinking Driver 102-15 (1982). Professor Ross is able to conclude, based on a thorough examination of the available scientific literature, that "[cjhanges in the law promising increased certainty or combined certainty and severity of punishment reduce the amount of drinking and driving." Id. at 102-03. With implications for summary suspension procedures, Ross concludes that "virtually no evidence illustrates, one way or the other, the effect of celerity or swiftness of punishment." Id. at 104. The evidence clearly shows that the probability of an accident while driving impaired is minimal, and that the probability of arrest is also minuscule. The probability of arrest has been put at 0.00044. Id. at 107. As long as this probability remains vanishingly small, manipulating the timing of the suspension hearing may be futile. *^See supra note 41 . ''Mackey, AAZ U.S. at 17. "By contrast, consider the attention to quality of evidence and placement of the burden of production in State v. McLaughlin, 471 N.E.2d 1125, 1136-38, 1141-42 (Ind. Ci. App. 1984). Drawing analogies to mislabeled drug and spoiled foodstuff cases, as the United States Supreme Court and the court in Ruge have done, merely suppresses the difficulties inherent in predicting driver response. Ruge, 461 N.E.2d at 681 (citing Mackey, 443 U.S. at 17-18). In particular, spoiled food remains spoiled after a prehearing seizure. 1986] SUSPENSIONS 53 The judicial aim should be to make the due process balancing as thor- oughly informed as reasonably possible/^ A drunken driver may not drive drunk again between his arrest and any subsequent judicial proceeding, or he may do so despite his suspended Hcense. '''It should also be noted that the United States Supreme Court's statement of its due process balancing test appears to vary subtlely, depending perhaps on context. In Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978), the Court applied the Eldridge balancing and determined that a pre-termination hearing was required before the utility could discontinue residential utility service for alleged non-payment. Id. at 17-18. Memphis Light focused on the status of utility service as "a necessity of modern life," the risk of erroneous deprivation as "not insubstantial," and the utility's interests as "not incompatible" with granting a pre-deprivation hearing. Id. at 18. Memphis Light is also interesting for its analysis of Dixon v. Love, 431 U.S. 105 (1977), which upheld an Illinois statute providing for a pre-hearing suspension of a driver's license upon a showing of his repeated convictions for certain traffic offenses. While both Mackey and Ruge rely upon Dixon, Memphis Light points out the driver's obvious opportunity for a full judicial hearing on the merits at each of the trials resulting in the underlying traffic convictions. Id. at 19-20 n.24.