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19 Washburn L.J. 338 (1979-1980)
Constitutional Law: Due Process Requires No Hearing before Suspension of Driver's License

handle is hein.journals/wasbur19 and id is 354 raw text is: Constitutional Law: Due Process Requires No
Hearing Before Suspension of Driver's License
The fourteenth amendment's prohibition against property deprivation
without due process of law has been applied to the deprivation of a driver's
license.' In Mackey v. Montrymn, -   U.S. -, 99 S. Ct. 2612 (1979), the United
States Supreme Court affirms this protection but holds a hearing is not re-
quired before a driver's license is suspended for his refusal to submit to a
breath test for intoxication.
Originally, a driver's license was held to be a privilege extended by the
state. It was subject to reasonable conditions and regulations deemed neces-
sary.2 As a privilege, it was not protected by the due process clause.3 The
distinction between rights and privileges as a basis for constitutional protec-
tion was examined in a series of Supreme Court cases which rejected the dis-
tinction and protected both as statutorily-created property rights.4
In Bell v. Burson,5 a driver's license, whether denominated a right or a
privilege, was held to be a constitutionally protected property interest.6 Geor-
gia's Motor Vehicle Safety Responsibility Act7 required license suspension of
an uninsured motorist involved in an accident unless he posted security for
damage claimed by an aggrieved party. The statute provided a presuspension
hearing8 but allowed no inquiry into the probability a judgment in the amount
claimed would be rendered against the driver. The Court declared the statu-
tory procedure violated due process.9 Rejecting the state's argument an in-
1. Bell v. Burson, 402 U.S. 535 (1971). Driver's licenses were recognized by state courts as
rotected by due process almost 20 years before Bell. See Hecht v. Monaghan, 307 N.Y. 461, 467,
21 N.E.2d 421, 423 (1954); Wignall v. Fletcher, 303 N.Y. 435, 441, 103 N.E.2d 728, 731 (1952).
See also Wall v. King, 206 F.2d 878, 882 (1st Cir. 1953).
2. See, e.g., Lee v. State, 187 Kan. 566, 570, 358 P.2d 765, 769 (1961) (privilege subject to
reasonable regulation by state police powers).
3. The typical thinking is that no one has a right to a government gratuity, and therefore
no one should be entitled to a hearing.. The operation of a motor vehicle . . . is not a right, but a
. . . privilege. Due process protects only [rights], and not privileges. Courts need not require fair
hearings when nothing more than privileges are at stake. Recent Cases, Constitutional Law - Due
Process - Suspension or Revocation of Driver's License Without Prior Hearing Deemed Constitution-
ally Adequate, 54 N.D.L. REV. 274, 277 n.25 (1977).
4. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972); Graham v. Richardson, 403 U.S. 365,
374 (1971); Goldberg v. Kelly, 397 U.S. 254, 262 (1970). See also Sherbert v. Verner, 374 U.S.
398, 404 (1963); Speiser v. Randall, 357 U.S. 513, 518 (1958).
Benefits received under a constitutionally protected statutory right may be subject to reason-
able conditions. See Bishop v. Wood, 426 U.S. 341, 353 n.4 (1976) (Brennan, J., dissenting) (res-
urrection of right/privilege distinction); Arnett v. Kennedy, 416 U.S. 134, 153-54 (1974) (where
statutory right conditioned by procedure for determining it, litigant must take bitter with sweet);
Wyman v. James, 400 U.S. 309, 324 (1971) (welfare payments conditioned on allowing inspection
of home by welfare personnel). See generally Carrow, Administrative Justice Comes of Age, 60
J.A.B.A. 1396 (1974); Reich, The New Property, 73 YALE L.J. 733 (1964); Van Alstyne, The Demise
ofthe Right-Privilege Distinction in Constitutional Law, 81 HARV. L. REV. 1439 (1967). See also
Meachum v. Fano, 427 U.S. 215 (1976).
5. 402 U.S. 535 (1971).
6. Id. at 539.
7. GA. CODE ANN. ch. 92A, § 6 (repealed 1977).
8. The presuspension hearing existed solely to determine whether the motorist or his vehicle
was involved in the accident, whether the motorist has complied with the provisions of the law
and whether the motorist comes within any exceptions to the law. Bell v. Burson, 402 U.S. at 537-
38.
9. Once issued, continuation of a license may be essential to the pursuit of a livelihood.

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