Mackey v. Montrym

PETITIONER:Mackey
RESPONDENT:Montrym
LOCATION:Collision between Mr. Montrym’s car and motorcycle

DOCKET NO.: 77-69
DECIDED BY: Burger Court (1975-1981)
LOWER COURT:

CITATION: 443 US 1 (1979)
ARGUED: Nov 29, 1978
DECIDED: Jun 25, 1979

ADVOCATES:
Mitchell J. Sikora, Jr. – for appellant
Robert W. Hagopian – for appellee

Facts of the case

After he collided with a motorcycle in Acton, Massachusetts, Donald Montrym was arrested for driving under the influence of alcohol (“DUI”). A state court later dismissed the DUI charges, but the Massachusetts Registrar of Motor Vehicles suspended Montrym’s driver’s license for ninety days because Montrym had refused to take a breathalyzer test at the time of his arrest. Montrym filed a class-action lawsuit in federal district court alleging that the statute that required drivers to submit to breathalyzer tests violated the Due Process Clause of the Fourteenth Amendment because it did not provide for a pre-suspension hearing. The district court found in favor of Montrym and ordered the Registrar to return the plaintiffs’ licenses. The Registrar appealed directly to the Supreme Court.

Question

Does the Due Process Clause of the Fourteenth Amendment permit a state agency to suspend a driver’s license based only on his refusal to take a breathalyzer test?

Warren E. Burger:

The case is submitted.

We’ll hear arguments next in Mackey against Montrym.

Mr. Sikora you may proceed whenever you’re ready.

Thurgood Marshall:

Mr. Attorney General, before you begin, is this the only brief you filed in this Court?

Just prove it.

Mitchell J. Sikora, Jr.:

No, Your Honor.

Thurgood Marshall:

Sir?

Mitchell J. Sikora, Jr.:

No, sir.

Thurgood Marshall:

Now, I know where I am.

Now, tell me the jurisdictional statement until that time.

This jurisdictional statement, is this all?

Did you ever file a brief?

This is just a proof here.

Mitchell J. Sikora, Jr.:

I’m — I’m at a lost, Your Honor.

Here is our jurisdictional statement printed.

Thurgood Marshall:

Is it — is it this script at the top here?

Mitchell J. Sikora, Jr.:

No, sir.

It’s a regular printed paper.

Warren E. Burger:

Fully —

Mitchell J. Sikora, Jr.:

Yes, Your Honor.

Warren E. Burger:

Apparently, it didn’t reach some of us.

Thurgood Marshall:

And — becuase I never did get page 17 — 17 (a) I don’t have.

Well, okay, we’ll find one.

Mitchell J. Sikora, Jr.:

I apologize to the Court.

Thurgood Marshall:

It doesn’t have the page, it’s incomplete.

Mitchell J. Sikora, Jr.:

Yes.

I apologize, Mr. Justice Marshall, we will investigate the problem and supply the Court with —

Warren E. Burger:

We’ll make inquiry also but we do, perhaps, need that page which is missing from all of the copies here.

Thurgood Marshall:

This is opinion to the Court.

Mitchell J. Sikora, Jr.:

This isn’t the — what we have here as printed.

Potter Stewart:

It’s printed.

Harry A. Blackmun:

This was filed away back in July.

I would suppose the printed versions would appear on the case.

Mitchell J. Sikora, Jr.:

That’s actually a jurisdictional statement.

I know and plus I apologize.

Warren E. Burger:

Very well, we’ll pursue it.

Mr. Sikora, you may proceed.

Mitchell J. Sikora, Jr.:

Thank you, Mr. Chief Justice.

Mr. Chief Justice and may it please the Court.

This is a procedural due process case.

It arises from a Section 1983 class action challenge to the Massachusetts implied consent Highway Safety Law.

It comes to this Court on direct appeal from a decision of a three-judge District Court, holding that law unconstitutional on its face.

Implied consent laws enforced in all 50 states typically provide that a person arrested upon a charge of drunken driving must submit to a chemical or breath analysis test or else accept a temporary license suspension for his refusal of that test.

The general question presented today is whether the states must provide a driver with the hearing at which he can dispute the fact of his refusal prior to the suspension of his license.

After describing the operation of the Massachusetts law and the particular facts, —

William H. Rehnquist:

Do you say dispute the refusal to take the test?

Mitchell J. Sikora, Jr.:

Yes, Your Honor.

William H. Rehnquist:

It was my understanding from the record though I realize I may be wrong but the appellee in this case had actually requested the test himself.

Mitchell J. Sikora, Jr.:

He requested it subsequent to refusing it upon his arrival initially, at the station.

Warren E. Burger:

He refer — he refused first and then about 50 minutes later asked for it, wasn’t that?

Mitchell J. Sikora, Jr.:

Yes, Your Honor.

Warren E. Burger:

(Voice Overlap)

Mitchell J. Sikora, Jr.:

About 22 minutes later, he asked for it.

Warren E. Burger:

But it’s 50 minutes after the event.

Mitchell J. Sikora, Jr.:

That’s correct, 52 minutes after the accident, 22 minutes after the arrival at the station.

The police did refuse it.

His attorney at the interim had arrived at the station and had consulted with a driver and apparently there was a change of mind.

Harry A. Blackmun:

How much do you lose in 22 minutes making the effectiveness of the test?

Mitchell J. Sikora, Jr.:

It’s hard to say, Your Honor.

Some states have suggested that 30 minutes is reasonable block of time from the arrival at the station house.

Mitchell J. Sikora, Jr.:

However, since that would vary according to the time that is taken to get to the station house from the scene of the accident, it’s very difficult to say at least with any scientific knowledge what time spent renders the test ineffective or inaccurate.

William J. Brennan, Jr.:

So what about any time spent from the time of the accident?

How soon would — from the time of the accident must be taken to be effective?

Do you know?

Mitchell J. Sikora, Jr.:

I don’t, Your Honor.

William J. Brennan, Jr.:

I see.

Mitchell J. Sikora, Jr.:

I don’t.

In this case it was as we’ve said, 52 minutes from the approximate time of the accident.

Thurgood Marshall:

In the second time, the State refuse to give him the test, is that right?

Mitchell J. Sikora, Jr.:

That’s correct.

Thurgood Marshall:

Why?

Mitchell J. Sikora, Jr.:

The police officers apparently made a judgment that the time spent now between the moment of arrest and the moment of request had become too long for an accurate reading.

That at least was their subjective judgment.

Thurgood Marshall:

I thought my Brother Blackmun’s question was as to how long is it before reading would not be any good?

Mitchell J. Sikora, Jr.:

I don’t think we can say with any scientific objectivity to the Court that are with any information from the record that we know of a precise time.

It does appear that the police in this case in their judgment made a judgment call that 52 minutes was too long.

Thurgood Marshall:

So that the final judgment in this case were 52 minutes after the Government said, “We will give you the test.”

Mitchell J. Sikora, Jr.:

52 minutes after the accident, the police refused the test.

Thurgood Marshall:

If he refused a test and as a result of that he lost his life.

Mitchell J. Sikora, Jr.:

That’s correct.

They had originally offered it 30 minutes after the test and he refused.

William J. Brennan, Jr.:

Does the record tell us whether the police will delay long enough to let the driver call an attorney and ask for advice?

Mitchell J. Sikora, Jr.:

The record does not, Your Honor.

I would think again that there’s any irreducible amount of police discretion if an attorney arrives soon after an individual came to the station, chances might be better.

William J. Brennan, Jr.:

Well, would it be a refusal for example for driver to say, “I’d like to call my lawyer before I take the test,” then say maybe take 25 minutes talking with lawyer on the phone then come back and say, “Yes I’ll take it” and could the police officer then say, “It’s too late now, you’ve already refused?

What, what — w ould that be refusal or not?

In — I would say that that hypothetical would not be a refusal.

It would not be refusal.

I think it would be an accommodation.

Pretty much what happened here, isn’t it?

Mitchell J. Sikora, Jr.:

No, he outright refused the test at first.

William J. Brennan, Jr.:

If he just say, well, I don’t want to do it till I talk to my lawyer, and it takes 25 minutes to get the legal advice.

Mitchell J. Sikora, Jr.:

I see.

I — I think the key factor is always going to be the length of time between the accidents.

William J. Brennan, Jr.:

So that if it takes 25 minutes to get legal advice that’s a refusal?

I would think so.

Warren E. Burger:

Is it possible that it is a medical matter or scientific matter that it might make a difference not only in the lapse of time but rather even to have a plaintiff Bourbon or a quarter Bourbon or only two ounces of Bourbon?

Mitchell J. Sikora, Jr.:

I would —

Warren E. Burger:

Two ounces reasonably might, the manifestations of two ounces might disappear from the bloodstream much more quickly than a plaintiff would?

Mitchell J. Sikora, Jr.:

My instinct is just to agree with that assessment, Your Honor.

And perhaps if that is one more good reason for a drawing heart and bright lines in this situation and perhaps having time limits, I must concede that the police here were operating without hard time limits and that they made a subjective judgment about the driver’s condition in refusing the test when he requested after 52 minutes from the accident —

Thurgood Marshall:

Is there anything that record where the police explained this?

Mitchell J. Sikora, Jr.:

No, Your Honor.

There is —

Thurgood Marshall:

He is not given the second time, isn’t he?

Nothing in the record on that, I mean I couldn’t find it?

Mitchell J. Sikora, Jr.:

No, Your Honor.

And that bings me perhaps to one of the pervasive features of this case.

The case would be a very respectable as applied challenge to the statute because these facts showed that at least the administration of the status was not efficient.

However, the plaintiff has chosen and has actually forgone opportunities to present as applied argument and has chosen to attack the statute on its face saying that in all situations, the statute is unconstitutional.

The performance of the police and the Registrar here is not typical we submit.

The parties have washed out in a statement of agreed facts, many of the particular equities of the case and have decided to focus on the major issue of whether hearing must invariably be prior rather than subsequent.

After describing the operation of the Massachusetts law in the particular facts of this case, we argue that the statute does satisfy due process under the Court’s three measurements for prior hearing.

Those are the value of the private interest taken by the Government, here a driver’s license, the risk of the mistaken taking of the interests without a prior hearing, and the public purpose for which the Government is acting.

The Massachusetts law requires a police officer arresting a person for driving under the influence to offer that person a chemical breath — chemical or breath analysis test.

The officer must inform the driver that the refusal of the test will result in a 90-day license suspension.

If the driver still refuses the test, the officer must immediately prepare a written report of refusal.

This is possibly not a factor in the police reluctance to give the driver second chance if they do immediately perform their paperwork.

They must at least throw it away or backup and do the paper work again.

The police officer receiving the refusal must sign it under the penalties of perjury and he must forward it to the Registrar of Motor Vehicles immediately.

Mitchell J. Sikora, Jr.:

In turn, the Registrar must impose the 90-day suspension by an immediate notice directing the driver to surrender his license at a local registry office.

There is no discretion left in the joints of the statute.

Each of these requirements is mandatory.

At the time of the surrender, the driver can request an immediate hearing to dispute his refusal of the test.

That hearing will begin on the same day as surrender if at all possible.

In this particular case, Donald Montrym’s car collided with a motorcycle.

About 15 minutes after the accident, the police arrived, arrested him, charged him among other offenses with driving while intoxicated and they accompanied him to the station house and at this point, we have the initial refusal an officer executed the report of refusal.

Montrym claims that his refusal was not informed.

He says that he was not informed of the suspension penalty and refused on that ground.

The remaining facts are undisputed that the police did execute the report that the Registrar suspended Montrym, but subsequently a state trial court dismissed the drunken-driving charge on the ground that the police had refused his subsequent request.

Montrym’s attorney informed the main office of the Registrar of the court result.

The Registrar answered that the license had already been suspended and must be surrendered.

Montrym did surrender the license but for some reason did not request a surrender day hearing.

Instead he took an administrative appeal from the suspension but before the completion of the administrative process filed the present class action.

William H. Rehnquist:

Well, what sort of administrative appeal did he take?

Mitchell J. Sikora, Jr.:

Within 10 days from any action of the Registrar, a driver may appeal for a de novo evidentiary hearing before a board of appeal presiding over the Registrar’s actions, that board in turn will schedule a hearing.

And here, Montrym would have had a hearing several weeks into his suspension, one was scheduled when he brought this out.

William H. Rehnquist:

Did he ask for that surrender hearing?

Mitchell J. Sikora, Jr.:

He did.

William H. Rehnquist:

And the — is there any review of that board’s findings?

Mitchell J. Sikora, Jr.:

Yes, Your Honor.

There is review by the state trial court of the administrative board of appeals decisions.

William H. Rehnquist:

In a superior court?

Mitchell J. Sikora, Jr.:

Yes, sir.

William J. Brennan, Jr.:

And what was the Board’s decision on the appeal?

Mitchell J. Sikora, Jr.:

The Board never reached it, Your Honor.

William J. Brennan, Jr.:

Not because this lawsuit.

Mitchell J. Sikora, Jr.:

That’s correct.

William J. Brennan, Jr.:

Well, I don’t mean asking if he questioned.

But you said he’d been acquitted for other reason of the drunken-driving charge.

Mitchell J. Sikora, Jr.:

Yes, sir.

William J. Brennan, Jr.:

Would that have result at almost automatically in the administrative appeal was holding in the restoration of his license?

Mitchell J. Sikora, Jr.:

We think so.

More importantly, we think the same day hearing would have had the same result.

That is if he had brought with him the court disposition or certified copy of the court disposition to the surrender day hearing, a registry hearing’s officer would have immediately reinstated its licenses.

William J. Brennan, Jr.:

He preferred just to be a hero on the lawsuit.

Mitchell J. Sikora, Jr.:

Well, after —

William J. Brennan, Jr.:

Knockout the statute lock, stock and barrel.

Mitchell J. Sikora, Jr.:

I believe my — I don’t want to impute motives to my brother’s reason for bringing the suit.

Warren E. Burger:

Perhaps, we’ll ask him.

Harry A. Blackmun:

Mr. Sikora, this may be irrelevant but is there any period of time between actual form of suspension and formal surrender of the license?

Mitchell J. Sikora, Jr.:

There is Your Honor.

William J. Brennan, Jr.:

So that a man could be driving with a license as been suspended even though it’s still in his possession?

Mitchell J. Sikora, Jr.:

That’s correct.

Conceptually, the license is suspended at the time the Registrar signs the notice of suspension and puts it in the mail.

Typically, it will arrive within a day or two.

The driver is literally informed that his license has been surrendered and that he must bring the surrendered license to the registry.

Lewis F. Powell, Jr.:

Mr. Sikora, I missed something.

I hate to acknowledge having done it, but you said if he had had the one-day same day hearing or may be appealed brought in the acquittal on the drunken-driving charge, you will be bring his license back, is that what you said?

Mitchell J. Sikora, Jr.:

Yes, Your Honor.

Lewis F. Powell, Jr.:

Well, why would he still have to give it up for 90 days for refusing to take the test?

I didn’t quite understand that.

Mitchell J. Sikora, Jr.:

Well, the finding of the state criminal trial court would have been binding upon the Registrar we say and it is the kind of relatively simple —

Lewis F. Powell, Jr.:

No, no.

The finding, he wasn’t driving while intoxicated?

Mitchell J. Sikora, Jr.:

No, Your Honor.

That was a finding the under state statute, the trial judge dismissed the charge on the ground that he had been not been denied a chance for exculpatory evidence through the test.

Lewis F. Powell, Jr.:

Well, I still don’t understand why — it was the night that they refused to let him take it but he had still previously refused to take himself?

I don’t understand why he still wasn’t required to be suspended for 90 days?

Mitchell J. Sikora, Jr.:

I see.

Mitchell J. Sikora, Jr.:

I think the answer is, Your Honor, the refusal would have been vitiated by the state trial court’s finding.

Lewis F. Powell, Jr.:

Well, how do we know that?

Mitchell J. Sikora, Jr.:

Well, that is the law in custom in Massachusetts if I may represent it that this is —

Lewis F. Powell, Jr.:

The law in custom is that when there’s an initial refusal and then a request to take it and it’s turned down and then that vitiates the initial review?

Mitchell J. Sikora, Jr.:

No, Your Honor.

Lewis F. Powell, Jr.:

Do you think that happens very often.

Mitchell J. Sikora, Jr.:

If there is a finding by a state trial judge that the individual had been denied a fair chance to take the test, then his initial refusal washes out.

Lewis F. Powell, Jr.:

And there’s a custom that happens often enough so you can tell us there’s a custom that happens often enough so you can tell us there’s a custom that that kind of finding is regularly uttered by the clearing officer?

Mitchell J. Sikora, Jr.:

By — yes, yes Your Honor, by the Registrar.

So that if he had brought a copy of this Court disposition to the same day or surrender hearing, his license would have been reinstated.

William H. Rehnquist:

And what precisely was the court disposition?

The charge was dismissed on the ground that the driver had been denied his request to take an exculpatory Breathalyzer test within 20 minutes after arrival at the station.

And what was the charge?

Drunken driving?

Mitchell J. Sikora, Jr.:

Yes, among several others.

William H. Rehnquist:

Driving to endanger.

Mitchell J. Sikora, Jr.:

Yes, sir.

Our view —

Lewis F. Powell, Jr.:

Do you think driving to endanger or under the influence —

Mitchell J. Sikora, Jr.:

Yes, there was driving under the influence — driving to endanger and driving without a license.

Lewis F. Powell, Jr.:

Well, we just follow this up for a moment.

What you’re telling me correctly reflects the state practice.

It means that a driver has a right when he comes to the station to refuse, wait 20 minutes and say, now I’d like to take the exculpatory test.

If they don’t give it to him, he has a right, they can’t suspend his license.

Mitchell J. Sikora, Jr.:

Well, —

Lewis F. Powell, Jr.:

That’s what you’re telling me.

It’s the custom as I understand it.

Mitchell J. Sikora, Jr.:

The custom, — the custom, I think Your Honor, is that if a judge decides in the circumstances that a driver has been denied —

Lewis F. Powell, Jr.:

Well, but he presumably is interpreting the law of your statement is so deciding.

Mitchell J. Sikora, Jr.:

Well, we don’t have — we don’t have an absolute time spent incorporated into a statute so that there is discretion deciding in the trial judge’s judgment.

Mitchell J. Sikora, Jr.:

The trial judge here was he had evidence about this incident and decided that the individual —

Lewis F. Powell, Jr.:

Are you telling me that as a matter of Massachusetts law on this record, there was no refusal and that’s why the statute is unconstitutional as applied in this case?

There was no refusal because there is a subsequent request for an exculpatory test if the police denied would vitiate it — vitiated the initial refusal.

So on this record there would not be a refusal as a matter of Massachusetts law.

Mitchell J. Sikora, Jr.:

Well, I hesitate to say as a matter of Massachusetts law, as a matter of the trial judge’s application.

Lewis F. Powell, Jr.:

But you told me that that is a consistent application that we can be sure that the administrator would have recognized as the law?

Mitchell J. Sikora, Jr.:

That’s correct.

Lewis F. Powell, Jr.:

So the — the question of when a refusal takes place is not really just a yes or no question on all circumstances.

Mitchell J. Sikora, Jr.:

No, it’s a very circumstantial question, Your Honor.

Lewis F. Powell, Jr.:

It’s a question that’s left entirely the discretion of the police under the — as a pre-suspension matter.

Mitchell J. Sikora, Jr.:

Initially to the police and ultimately to a trial judge.

William H. Rehnquist:

Well, are you saying —

Potter Stewart:

In this case, are you telling that there was no refusal?

Mitchell J. Sikora, Jr.:

That’s correct.

William H. Rehnquist:

Well, when —

Potter Stewart:

Then why do we have a case of controversy here?

Mitchell J. Sikora, Jr.:

Because instead of and as an applied attack upon the statute we have here a facial attack.

Potter Stewart:

Well, when he attack — if this — if there was no refusal in this case by the respondent, as has been found by the magistrate court, why can’t he make any attack in the statute on its face where he has applied anything else?

Lewis F. Powell, Jr.:

Suppose the answer is just a statute resulting to denial of his license.

Mitchell J. Sikora, Jr.:

As a practical matter, because he forwent the same day hearing, he did not give his license back and continued to be inconvenience by 28 days.

Lewis F. Powell, Jr.:

Is the statute — is his license in the state of suspension is still or not?

Mitchell J. Sikora, Jr.:

No, no, Your Honor.

It was returned at the outset of the lawsuit.

Potter Stewart:

So that the question presented in your brief, whether a statute imposing a uniform temporary suspension of the driver’s license for his refusal to take a chemical test or so on?

While as to due process clause, where the uniform suspension was not imposed in this case.

A 90-day suspension was not effectively imposed, was it?

Mitchell J. Sikora, Jr.:

It was.

It was, Your Honor, the Registrar —

Potter Stewart:

In fact was it that his license suspended for 90 days?

Mitchell J. Sikora, Jr.:

It — it was by the Registrar?

Potter Stewart:

The fact it wasn’t on that ground, was it?

He got it back you just told us in 28 days?

Mitchell J. Sikora, Jr.:

Yes, as a result of this lawsuit.

Potter Stewart:

As a result of the finding that he did not in fact refuse to take the test, isn’t that correct?

Under the circumstances in this case, he did not refuse.

Mitchell J. Sikora, Jr.:

No, I think that the federal district court view the statute almost initially as unconstitutional.

Potter Stewart:

I’m not talking about the Massachusetts courts in this case.

Mitchell J. Sikora, Jr.:

I see.

William H. Rehnquist:

Did the Registrar act in conformity to the District Court’s order or the Massachusetts’ court’s order?

Mitchell J. Sikora, Jr.:

The District Court’s order.

William J. Brennan, Jr.:

Did the District Court ordered the reinstatement at the end of that so that he got to pack it 28 days?

Mitchell J. Sikora, Jr.:

Yes, Your Honor, it’s part of a temporary restraining order in this case.

The reg —

William J. Brennan, Jr.:

The issue I gather on the filing of the complaint, next party or what?

Mitchell J. Sikora, Jr.:

I think it, yes, that they should shortly after the filing of the complaint and the Registrar at our suggest and assented to the return of the license.

William J. Brennan, Jr.:

Well, he was ordered the return it was it?

Mitchell J. Sikora, Jr.:

Yes, the —

Thurgood Marshall:

But the order of the court and the statute unconstitutional on its face.

Mitchell J. Sikora, Jr.:

It did Your Honor.

Thurgood Marshall:

And that’s what’s before us?

Mitchell J. Sikora, Jr.:

That’s correct.

Thurgood Marshall:

But it’s your position that’s all that’s all before us, that’s your position?

Mitchell J. Sikora, Jr.:

That’s correct.

The parties on the District Court have analyzed this case under the three prior hearing criteria announced in Mathews versus Eldridge and applied in Dixon versus Love.

The first factor is the magnitude of the private interest.

Since Bell versus Burson, it has been settled that a person’s interests and a driver’s license requires some kind of hearing for its deprivation.

However, the timing and the thoroughness of the hearing can vary according to the risk of error and the strength of the public purpose served by a license suspension.

In Dixon, the Court concluded that the license interests was not so great as to require as to depart from the ordinary principal established by our decisions that something less than an evidentiary hearing is sufficient prior to an adverse administrative action.

The Court went on to weigh the chance of error and the public safety interests served by the Illinois habitual offender law and decided that a subsequent hearing typically one more than 20 days after suspension was constitutionally sufficient for the usual driver in Illinois.

By contrast, the Massachusetts system affords a hearing opportunity often able to begin on the same day as the license surrender.

Mitchell J. Sikora, Jr.:

Even if one takes a pessimistic view of the driver’s brief that a complete hearing opportunity will consume 7 to 10 days of the suspension time, that figure is drastically less than the post-suspension time spent permitted in Dixon.

The second factor, in the court’s decisions has been the risk of an erroneous license suspension.

The Massachusetts statute builds in a number of safeguards against this possibility.

An officer must offer the test and inform the driver of the 90-day suspension for its refusal in the presence of a witness.

Upon refusal, he must immediately execute under penalties of perjury the report of refusal which must in turn set out probable cause for the original arrest, the fact of the arrest and the driver’s refusal of the test.

In addition, the witnessing officer and the superior officer to whom he is accountable must endorse the report before it’s transmission to the Registrar.

William J. Brennan, Jr.:

What was there about the appellee’s conduct at the time of the accident that prompted the officers to say you should take a test?

Mitchell J. Sikora, Jr.:

There were four symptoms, Your Honor.

There was the odor of alcohol, glassy eyes, slurred speech, and one in particular, the final one was that his footing was so shaky that he had to hold on to a street sign to maintain his balance.

William J. Brennan, Jr.:

Now, does the statute require some kind of probable cause before the officer may require and suggest that he take the test?

Mitchell J. Sikora, Jr.:

It does.

The arrest, the underlying arrest must be a valid arrest before a test is put to the individual.

William J. Brennan, Jr.:

Yes, but I what I mean, must it — must it be something in the way of the showing of probable cause to believe that he’s under the influence of driving to endanger or something in fact?

Byron R. White:

Or he could — either that or you couldn’t arrest him?

Mitchell J. Sikora, Jr.:

That’s correct.

That it’s — the officer must set out the grounds of probable cause in his report of refusal going to the Registrar.

Lewis F. Powell, Jr.:

What if they just arrest him for speeding and there was nothing about and that suggested one way or another on being drunk, could they make him take the test then?

Mitchell J. Sikora, Jr.:

Not properly, Your Honor.

Lewis F. Powell, Jr.:

It must be probable cause I believe he was under the influence?

Mitchell J. Sikora, Jr.:

That’s correct.

Byron R. White:

But there must be a valid arrest for driving under the influence.

Mitchell J. Sikora, Jr.:

That’s correct.

As a predicate for offering the test and this report of refusal, I think is intended to ensure that initial safeguard.

Byron R. White:

And if the witness has required that he has to be a witness to the refusal like he does and to the refusal to take the test or to the behavior at the time of the accident?

Mitchell J. Sikora, Jr.:

I think only to the refusal, Your Honor.

I think most typically if police are patrolling in pairs, usually the partner becomes the witness.

However, the test is not offered until they are back at the station house.

William J. Brennan, Jr.:

And the only offenses charged here were related to victim?

Mitchell J. Sikora, Jr.:

That’s correct.

William J. Brennan, Jr.:

And not to connect it with the accident was only.

Mitchell J. Sikora, Jr.:

No, Your Honor.

There was that — the only extraneous offense was that —

William J. Brennan, Jr.:

Because driving to endanger is not only an offense as I know of Massachusetts for driving while under the influence.

When you drive to endanger another (Voice Overlap).

Mitchell J. Sikora, Jr.:

You can be sober and be driving to endanger —

William J. Brennan, Jr.:

That’s true.

Mitchell J. Sikora, Jr.:

Yes, sir.

The driver has criticized the report of refusal as a mechanical checklist but in particular this narrative description of the grounds constituting probable cause we think are against the kind of one-sided form of affidavit.

That would be suspect and of course it’s again ties into an effort to prevent an erroneous taking.

William J. Brennan, Jr.:

So, I gather really the state’s argument here is certainly he is entitled to due process when he gets it all since he — in order to beyond probable cause in the first instance.

And then he may take an administrative appeal and get a trial de novo and meanwhile his license may be suspended but he is entitled to a complete hearing.

Mitchell J. Sikora, Jr.:

That’s correct.

William J. Brennan, Jr.:

Within the reasonable ground.

Mitchell J. Sikora, Jr.:

That’s correct.

William J. Brennan, Jr.:

Is that it?

Mitchell J. Sikora, Jr.:

That’s correct.

William J. Brennan, Jr.:

And that all adds up, you submit to upon the due process?

Mitchell J. Sikora, Jr.:

Circumstantially yes.

And the circumstances, this is an adequate hearing.

If there is one crucial feature that makes our statute constitutional, I would submit it is the surrender hearing and the surrender hearing in particular is a fairly thorough proceeding.

William J. Brennan, Jr.:

And how soon can he get that?

Mitchell J. Sikora, Jr.:

On the day of surrender typically.

William J. Brennan, Jr.:

And the notice of suspension tells him what? As to the day of surrender?

Mitchell J. Sikora, Jr.:

That he must surrender his license.

William J. Brennan, Jr.:

How and what day?

Mitchell J. Sikora, Jr.:

Oh!

Forthwith.

William J. Brennan, Jr.:

Does it fix the day just as suppose not?

Mitchell J. Sikora, Jr.:

It does not.

He is suppose to sprint I think to the local registry office with the license.

William J. Brennan, Jr.:

And where does he get the hearing?

Mitchell J. Sikora, Jr.:

He gets the hearing at the registry office.

Excuse me.

Altogether, there are 35 branch offices.

Byron R. White:

If he has a chance sir to tell his side of the story?

Mitchell J. Sikora, Jr.:

But he can’t get witnesses if it is going to take any time.

The surrender hearing does permit him to be represented by counsel to introduce evidence on any of the issues concerning refusal and to cross-examine witnesses.

Furthermore, the surrender hearing will be continued if he requested to be continued.

Byron R. White:

But his license will be suspended?

Mitchell J. Sikora, Jr.:

In the meantime.

Now, my brother criticizes the surrender hearing because it is by nature a post suspension hearing.

But he concedes that typically, and I believe he looks at the statute most pessimistically than typically, it is a 7 to 10-day process.

And we submit that if you compare this time spent with the time spent in Dixon versus Love which was at 20 days, it compares very favorably.

Lewis F. Powell, Jr.:

Of course the difference is in Dixon against Love, you’d already had your judicial determination that may have violated the loss over time?

Mitchell J. Sikora, Jr.:

That’s correct.

That is — that is the main distinction of Dixon versus Love.

We think it’s mitigated by at least three factors.

First, the relative speed and thoroughness of the surrender hearing we think that it comes usually more quickly than 7 to 10 days.

Secondly, we have the same kind of public safety purpose at work in this case as we did in Dixon versus Love.

And finally, the magnitude of the deprivation again is 7 to 10-day deprivation as against a 20 or more deprivation in Dixon versus Love.

Lewis F. Powell, Jr.:

Does the statute require to be completed in 7 to 10 days?

I don’t find the statutory description on the same day hearing.

Mitchell J. Sikora, Jr.:

It — it does not, Your Honor.

The statute simply requires that there be a hearing.

It’s stipulated by the parties that therein administering the statute the Registrar has set up this same day process.

Lewis F. Powell, Jr.:

And the 7 to 10 days results from the fact that sometimes there’s a lot time for the police officer to come in to tell the other side of the story.

Mitchell J. Sikora, Jr.:

That’s correct.

This — the surrender hearing is particularly suited to correct obvious mistakes and we submit that this case was a paradigm example of an obvious mistake.

It is going to take a few extra days if there are serious issues about probable cause and police must be cross-examined.

But the process, the 7 to 10-day process, is practically an adjudicatory process and evidentiary process.

Mitchell J. Sikora, Jr.:

It is not simply an opportunity for the driver to tell his side of the story or ask for a break.

Lewis F. Powell, Jr.:

Can I ask you, rather basically.

What — how would the state interest suffer if instead of this procedure is said, it made a rule to show cause so that you show up in five days or six days, whatever the hearing officer offers and unless you have good cause for saying there was no refusal or probable cause of your license to be suspended.

And then you have the same, everything else exactly the same.

How would the state interest suffer if you do it that way?

Mitchell J. Sikora, Jr.:

We think that very few people would take the test and that everyone would seek the hearing when the statute was enforced approximately one out of three people arrested for drunken driving still resisted the test and we think that that presented to us —

Lewis F. Powell, Jr.:

Why — do you mean they would refuse the test because of the fact they are going to keep the license for five days instead of having suspended forthwith?

Mitchell J. Sikora, Jr.:

No, I think there is a reflexive reaction to the inculpatory nature of the test.

If someone is marginally intoxicated and confronts the Breathalyzer, I think there is a reflexive resistance to it and hope that in some way with an intervening hearing they would be able to worn off any kind of suspension.

Lewis F. Powell, Jr.:

Well, but you say that you’ve given that hope now.

You’re given a hearing except that the only difference is that it’s going to be suspended definitely for at least three or four days.

Mitchell J. Sikora, Jr.:

That’s right.

Lewis F. Powell, Jr.:

But why wouldn’t it be equally definite as far as the 90-day suspension?

If you just say well, we won’t have the suspension to take effect until it’s the same day hearing.

And most people I suppose don’t have any real answer if they refuse a review.

Mitchell J. Sikora, Jr.:

I think it’s the immediacy and the certainty of the suspension.

Lewis F. Powell, Jr.:

Immediately in three days later?

Mitchell J. Sikora, Jr.:

Well, hopefully three days later.

But I think the typical driver is going to feel that if he can avoid the test for the time being and it’s incriminating evidence, and come up with some kind of help before he shows up for a hearing, he will somehow be able to avoid the drunken-driving charge.

Lewis F. Powell, Jr.:

Maybe — the hearing officer may be more lenient to the police officer —

Mitchell J. Sikora, Jr.:

Possibly, but it’s the immediacy, it’s the fact that you are suspended immediately that we think is crucial.

I see my time is up.

Thank you Mr. Chief Justice.

Warren E. Burger:

Very well.

We’ll not ask you to fragment your argument.

We will have you ready to go on at 1 o’clock.

Robert W. Hagopian:

Thank you.

Warren E. Burger:

Mr. Hagopian, you may proceed whenever you’re ready.

Robert W. Hagopian:

Good afternoon, Your Honor, may it please the Court.

I would like initially to straighten out some of the facts in this case before proceeding to my argument.

Robert W. Hagopian:

First of all, Mr. Montrym was stopped at 8:30 a.m. on the evening in question and he was brought to the police station at 8:45 at that time he refused the Breathalyzer.

His attorney showed up 5 or 10 minutes later and at 9:05, he alleges in his affidavit that he wanted to take the Breathalyzer test which was at the most 35 minutes from the time of the accident and approximately 20 minutes from his initial refusal.

Now, —

Warren E. Burger:

I calculated on the record, it is precisely 30 minutes but it doesn’t make all that difference.

Robert W. Hagopian:

Yes, Your Honor.

But there was some talk about 52 minutes here when my brother was up here this morning and I want to clarify.

That clearly is out of question from the time of the accident not the time when he was first asked about the Breathalyzer test.

There are statutes and other jurisdictions that hold up to 30 minutes from the time that the person has read his rights and clearly, Montrym was within that because at least according to the findings of fact by the District Court judge.

That’s the first point that I wanted to clarify.

Thurgood Marshall:

How is that before us when you only are interested on the face?

Robert W. Hagopian:

Well, I don’t think it is Your Honor.

But I want to point out that this man —

Thurgood Marshall:

In a case, you are withdrawing anything except on the face?

Robert W. Hagopian:

Oh!

No, Your Honor.

We still reserve as applied.

I mean it’s conceivable to statute.

Thurgood Marshall:

Where did you reserve it?

Robert W. Hagopian:

Well, when we brought our original motion for summary judgment, I believe we asked the Court to examine both questions the issue of constitutionality on its face because it was a class action and as applied to Mr. Montrym.

There was a case last term that was handed down by this Court that held, if the man doesn’t at least colorably assert a claim of innocence, the fact that is procedural due process rights have violated is not an independent claim.

That was a per curiam opinion and I don’t know what the implications are of that opinion but we want to clearly assert that Mr. Montrym was innocent.

He is asserting the claim of innocence here in this particular case.

He was an innocent man and that’s what the due process clauses point.

Thurgood Marshall:

Do you question the fact that he — the State refuse to give him the test?

Robert W. Hagopian:

No, he was refused that State did.

Thurgood Marshall:

Well, do you abandon that point or not?

Did you abandon it in the lower court?

Robert W. Hagopian:

He initially refused.

Thurgood Marshall:

Because the opinion of the lower court, the judgment, says the statute is unconstitutional on its face.

Robert W. Hagopian:

That’s correct Your Honor.

Robert W. Hagopian:

As far as I’m concerned, Montrym’s case is irrelevant at least on the facial attack.

It’s irrelevant other than the fact that he has search a claim of innocence.

William J. Brennan, Jr.:

Well, this —

Robert W. Hagopian:

Whether he was innocent or not is irrelevant.

Potter Stewart:

Mr. Hagopian, if I’m — unless I wholly misapprehended the issue on this case.

This statute doesn’t have anything to do with guilt or innocence but merely about it has to do with whether or not he refuse or didn’t refuse to take a Breathalyzer.

Robert W. Hagopian:

That’s correct, Your Honor.

Potter Stewart:

Nothing about guilt or innocence.

Robert W. Hagopian:

That’s correct

Potter Stewart:

Just that fact.

Robert W. Hagopian:

Well, when I say innocent, I didn’t mean innocent of the substance of crime.

I meant innocent of the fact that he didn’t refuse.

Potter Stewart:

Well, if he didn’t refuse to take the test then the statute is wholly inapplicable to him.

Robert W. Hagopian:

That’s corr —

Potter Stewart:

That’s correct, is it not?

Robert W. Hagopian:

That’s correct, yes it is.

Well, I’m not sure.

Potter Stewart:

I’m right.

Robert W. Hagopian:

Well, I’m not — excuse me, I take that back Your Honor.

No, that’s not true because the police officer alleged.

When the police officer sends the report to the registry, that’s what creates the cause of action in this case.

The police officer asserted that he refused to take the test and —

Lewis F. Powell, Jr.:

But that was the whole point of your attack, isn’t it that even if he did not refuse it, the police officer says he does and he never gets a hearing at the statute caused him to lose his license?

Robert W. Hagopian:

That’s correct, Your Honor.

Lewis F. Powell, Jr.:

That’s why you say it’s unconstitutional.

Robert W. Hagopian:

That’s right.

William H. Rehnquist:

This was decided on summary judgment?

Robert W. Hagopian:

Yes, it was Your Honor.

William H. Rehnquist:

In your favor?

Robert W. Hagopian:

Yes.

William H. Rehnquist:

So that all doubts as to facts have to be resolved in favor of the state I take it and not it’s affidavits and filed on your behalf had to be disbelieved.

Robert W. Hagopian:

That’s correct, except to the extent that there was an agreed statement of facts that was filed by parties and that’s in the appendix and that’s quite extensive.

William H. Rehnquist:

And those are the facts then that we should go by?

Robert W. Hagopian:

Oh!

Yes, Your Honor.

William H. Rehnquist:

But anything outside the agreed segments of facts that’s contained only in an affidavit submitted — in support of your client, we must treat as having been resolved adversely to your client.

Robert W. Hagopian:

That’s correct Your Honor.

I don’t believe that were any at all of this affidavits outside of the agreed statement of facts.

I don’t believe there were any affidavits.

I think that’s correct but there were none so that the case was heard on agreed statement of facts.

At least the motion for summary of judgment was —

William H. Rehnquist:

That’s why I was curious as to why you referred to an affidavit.

Robert W. Hagopian:

Well, the affidavit was in the state court pleadings.

You see we’ve taken steps —

William H. Rehnquist:

Well, was that in the agreed statement of facts?

Robert W. Hagopian:

Oh!

Yes, it was.

We took the entire record from the state court pleadings and we incorporated that into the agreed statement of facts.

And so that is in the record to that extent.

William H. Rehnquist:

Well, was it agreed in the sense that the state agreed that that’s what transpired in the state court?

Robert W. Hagopian:

No, that certainly was not.

William H. Rehnquist:

The state didn’t agree?

Robert W. Hagopian:

But they agreed that the records — they agreed that we have the record from the state court proceedings and they agreed to the veracity instead of submitting certified copies but there were affidavits in the pleadings in the state courts and I don’t believe that they have agreed to the truth of the allegations in the affidavits.

But the certainly agreed to the fact that the affidavits were filed, the state court record on the face of the complaint in the state court, the judge said, Breathalyzer refused by the police to see affidavit.

So I think it is clear inference that the trial judge in the state court proceedings believed what was in the affidavit.

Thurgood Marshall:

Is there any other statement of facts aside from the one of page 28?

Robert W. Hagopian:

No, I don’t believe.

Thurgood Marshall:

There was no word or any about Breathalyzer.

Robert W. Hagopian:

That’s — that’s correct, Your Honor.

The agreed statement of facts is on page 28.

Robert W. Hagopian:

There are several exhibits though that —

Thurgood Marshall:

But you said it was all that the agreed statement of facts and I don’t see Breathalyzer in here at all.

Robert W. Hagopian:

Well, Your Honor if you look at the —

Thurgood Marshall:

Where is it that it says what happened when he was arrested?

Robert W. Hagopian:

Well, if you look at exhibit B which is referred to in agreed statement of facts, exhibit B is on page 33 and that is the face of the complaint in the state court proceedings.

Thurgood Marshall:

Well, I see exhibit A referred to the statement of facts.

Robert W. Hagopian:

Well, I’m sure exhibit D has too, Your Honor and —

Thurgood Marshall:

Well, do you question as applied or not?

Robert W. Hagopian:

Well, I think it’s clearly the statute is unconstitutional as applied to Montrym’s case.

Thurgood Marshall:

You — you still maintain that?

Robert W. Hagopian:

Yes, I certainly do.

And I think it’s unconstitutional on its face also.

Thurgood Marshall:

They didn’t abandon it in the lower court?

Robert W. Hagopian:

No, absolutely not Your Honor.

William H. Rehnquist:

What we — what do we do if we disagree with the District Court’s conclusion that’s unconstitutional on its face but think that you should have the right to assert your claim that it’s unconstitutional as applied?

Do we decide that here or send it back?

Robert W. Hagopian:

Well, I think you have to decide as applied here.

Well, it’s a motion for summary judgment so the worst that — I mean conceivably you could say that the District Court made it a mistake on the issue of granting summary judgment and send it back that would not preclude Mr. Montrym from either going forward to trial even as unconstitutional as applied to him.

William H. Rehnquist:

You wouldn’t then enjoin state officials for — from applying the statute.

You just said they couldn’t apply to Montrym.

Robert W. Hagopian:

Right.

But I don’t think Montrym’s case, the District Court held in the findings of fact that Montrym’s case was just a typical of the class and my brother’s have not taken any appeal from that that order of the certifying the class action when they don’t seem to challenge the fact that the District Court judge held that Montrym’s case was typical of the class.

Thurgood Marshall:

What is the class?

Robert W. Hagopian:

Classes of — it comprises all those motorists in Massachusetts who have driver’s license who refused to take the Breathalyzer test.

Thurgood Marshall:

Where is it in this record?

Robert W. Hagopian:

It’s in the opinion, Your Honor.

William H. Rehnquist:

It’s in 16 (a) and it isn’t at all what you say.

It’s says plaintiff purports to represent a class consisting of those persons whose Massachusetts license to operate a motor vehicle has been suspended by the defendant or his predecessors or successors in office prior to an opportunity for a hearing on such suspension.

Person with a sub-section this Court determines it’s a correct class.

Robert W. Hagopian:

Yes, Your Honor.

William H. Rehnquist:

Now, I take it at the time you filed this action of the District Court, Montrym had already had an opportunity to have a hearing.

Robert W. Hagopian:

No, that’s not correct.

He was never given an opportunity.

William H. Rehnquist:

I thought he went into the District Court after he had had his opportunity for hearing before the Registrar.

Robert W. Hagopian:

Yes, yes that’s correct.

William H. Rehnquist:

Then how can this be a class in this action?

Robert W. Hagopian:

Well, Your Honor, if the point is — let me see if I can point to you.

Let me see if I can explain to you.

Let — let me just give you just briefly two minutes of procedure so you can understand what the problem is here.

When the police officer takes its report, he sends it to the Registrar.

The Registrar automatically revokes his license and that’s what happened to Montrym’s case.

Montrym surrendered his license but he did not — but he insisted that he always maintained that the Registrar could not — that that suspension was illegal because of the fact that he was not granted a hearing prior.

And that’s what the class constitutes.

All those people who the Registrar sends a notice to, suspends their license without giving him that hearing first.

And that’s the central issue in this case.

He insists upon that hearing first.

As it turned out Your Honors, the Registrar was well-informed of the facts in this case.

The attorney that represented Mr. Montrym in the District Court, Mr. Harris who is here with me today, he sent the Registrar before the Registrar have sent the notice to Montrym as a copy of the District Court judgment and he said Mr. Montrym never refused to take the Breathalyzer.

Here’s the finding of fact from the District Court when the District Court in Massachusetts criminal court has ruled that Montrym did not refuse to take the Breathalyzer test.

You should not take his license and I’m sending you this letter to avert his license revocation and the Registrar just totally ignored that.

And he says, as far as I’m concerned, I have no discretion under the statute, when I get this notice from the police department that’s as Montrym refuses, as far as I’m concerned, I suspend the license and that’s it.

I don’t — I’m not interested in anything else.

You want to come in and talk to me afterwards, I’ll be very happy to talk to you about it.

This is so happens even after he suspended the license.

I sent him a demand and demanded the return of that license and sent him the District Court and I explained to him about the Breathalyzer so he well knew the facts even after that stage but he refused to return that license.

William H. Rehnquist:

You also appealed —

Robert W. Hagopian:

The only time he returned to this when the United States District Court ordered him to and then it took him seven days to return after the date of the order.

William H. Rehnquist:

You also appealed from the Registrar to the state administrative?

Robert W. Hagopian:

That was, — that was — that’s right.

That was on the initial decision to suspend his license that was on appeal taken but it would take 30 days before we could even get a hearing and we worked around the clock to even get that which would mean that one-third of the 90 days suspension period would be completely expired before he could even get a hearing on that issue.

William H. Rehnquist:

But why didn’t you file your action in district court before you filed your notice of appeal to the state of administrative agency?

Robert W. Hagopian:

I wasn’t involved in the cases, I believe —

William H. Rehnquist:

Well, but your client is bound by it as his previous attorneys that before he (Voice Overlap).

Robert W. Hagopian:

Yes, I understand that Your Honor but the going through the Board of Appeals was an exercise in futility.

On the initial decision, they have no discretion, they probably who have upheld the Registrar anyway because that’s what the statute says whether they have the power to determine the constitutional challenge of that stage of the game is not clear on Massachusetts law.

Thurgood Marshall:

You mean the law of Massachusetts says that if the state refuses to give the man a Breathalyzer test, they’ll take his license and everything?

Robert W. Hagopian:

That’s correct, Your Honor, 90 days.

Thurgood Marshall:

But the law does not say that.

Robert W. Hagopian:

It says that if the motorist refuses to —

Thurgood Marshall:

You did hear what I said?

Robert W. Hagopian:

Yes, I stand corrected, Your Honor.

Thurgood Marshall:

If the state refuses to give him the test, he then loses his license.

Robert W. Hagopian:

No.

Thurgood Marshall:

No, he didn’t say it, but that’s this case, isn’t it?

Robert W. Hagopian:

No.

Thurgood Marshall:

Isn’t that this case?

Robert W. Hagopian:

No, Your Honor.

That’s not correct.

The statute says if the motorist refuses to take the Breathalyzer test and if he has been validly arrested if there was probable cause for his arrest and if in fact he refused to take the Breathalyzer, he must prove all three elements and they are complicated elements, Your Honor.

Then — if and only then that the State has that right to take his license.

Thurgood Marshall:

I understood that the state court said that this man was not — did not violate the statute because it was the state and not here —

Robert W. Hagopian:

I don’t think that’s true Your Honor.

What the state court held was they dismissed the complaints.

Thurgood Marshall:

Well, where is the state courts?

Robert W. Hagopian:

Well, the only thing in the state court that’s in the record in the appendix, Your Honor, which is on page 33.

Thurgood Marshall:

Is there anything else in the record other than that?

Robert W. Hagopian:

It’s not on the state court record, Your Honor.

Thurgood Marshall:

Is there anything in the record in this Court other than that?

Robert W. Hagopian:

None.

And by the way, Your Honor, that reference to exhibit B is made on page 28 in the agreed statement of facts.

Thurgood Marshall:

It says here, Breathalyzer refused when requested within the half hour of arrest of the station, see affidavit and memorandum.

Robert W. Hagopian:

Yes.

Thurgood Marshall:

Where is the “affidavit and memorandum?”

Robert W. Hagopian:

The affidavit is on pages 38, 39 of the appendix.

And that’s the affidavit that Montrym submitted in the District Court and I submit —

Thurgood Marshall:

And on the basis of that it was dismissed.

Robert W. Hagopian:

That’s correct, Your Honor.

I don’t know what the judgment may —

Thurgood Marshall:

Well, what are you doing now?

He was dismissed.

Robert W. Hagopian:

That’s right.

But that decision isn’t binding upon the Registrar.

Thurgood Marshall:

I should have wish I knew what was here.

Warren E. Burger:

But if he had taken a copy of this dismissal and —

Robert W. Hagopian:

He did for that first hearing.

Warren E. Burger:

And then he did do that, for the first hearing that it was available to him?

Robert W. Hagopian:

He sent and it’s stipulated in the agreed statement of facts, Your Honor that the record in the District Court proceedings was sent to the Registrar before he revoked Mr. Montrym’s license and the Registrar totally ignored it and in fact he wrote back — well, Mr. Harris sent him a copy of the District Court record.

He wrote Mr. Harris back five days after he in fact had revoked Mr. Montrym’s license and that letter is on page 46 of the — 48, page 48 of the appendix in reference to a letter of June 2nd concerning the above-named, this is to advise you that his license has already been suspended and said license must be returned to this office immediately.

Registrar’s position is quite clear, Your Honor, in this case that when he gets that letter from the police department saying that a motorist has refused to take the Breathalyzer, he has absolutely no discretion but to revoke the license upon receipt of that letter and that is the issue, the District Court’s findings not binding upon the Registrar.

The District Court may have dismissed this case for number of reasons.

He happens to make those specifics findings of facts.

He may construe the statute different in the Registrar.

There’s no Massachusetts case law on this particular issue.

He may construe the statute differently.

He may disagree with the District Court judge.

I don’t know whether the District Court judge was right or whether in this case.

Now, I would like to point out to you, Your Honor, that this morning the notice of revocation that was sent to Mr. Montrym which was standard form by the Registrar says you must cease operating your motor vehicle immediately.

There’s nothing in that notice which is in the appendix that advises the motorist that he has a right to an immediate hearing.

And I do concede as in the agreed statement that he can as a practical manner walk in the Registry and get an immediate hearing.

But he’s not notified of that in the notice that goes out to the motorist and the copy of that notice is on page 44-45.

Thurgood Marshall:

But your client had a lawyer.

Your client had his own lawyer.

Robert W. Hagopian:

Pardon, Your Honor?

Thurgood Marshall:

Your client had his own lawyer.

Robert W. Hagopian:

He knew.

Thurgood Marshall:

Then why does he need other notice, he’s got lawyer to tell him what the law is?

Robert W. Hagopian:

Well, I don’t even know if he’s own counsel knew about that fact, Your Honor.

There’s nothing in the Registry regulations that publishes that you can get an immediate hearing.

As a practical manner, Mr. Harris sent a letter immediately to the Registry (Voice Overlap).

Thurgood Marshall:

You aren’t required to know the law.

I assume that that’s the law in Massachusetts —

Robert W. Hagopian:

I don’t believe —

Thurgood Marshall:

That the lawyers are not required to know the law then I agree with you.

Robert W. Hagopian:

Yes.

I don’t believe.

I don’t — the right to an immediate hearing is not Your Honor part of the law that is something by custom that the registry gives.

I know of no regulations, written regulations that ever promulgated to that effect.

As a practical matter, if you have any experience with the registry as an attorney you would know that.

I know that and I knew it.

But I don’t know that all lawyers who live in the country know that.

Warren E. Burger:

But they’re bound to it, aren’t they?

Robert W. Hagopian:

Are they bound to know that?

Warren E. Burger:

They are bound to know that.

Robert W. Hagopian:

Well, it’s a custom Your Honor, I don’t, you know I —

Warren E. Burger:

It must have changed that ancient action of the law.

John Paul Stevens:

If the law provided for notice, would that meet your complaint?

Robert W. Hagopian:

Well, it certainly would help, no.

John Paul Stevens:

Wait a minute.

Would it need it or do you want something else?

Robert W. Hagopian:

No, I want something else besides that.

John Paul Stevens:

What else do you want?

Robert W. Hagopian:

I think they’re going to give the hearing before they take the license.

John Paul Stevens:

Well, I understood you to say that by custom at least, if one knew about the opportunity, the Registrar would allow him to appeal until the State decided the case.

Robert W. Hagopian:

Yes, but why should he lose his license first Your Honor?

That’s the issue in the case.

John Paul Stevens:

Well, that he loses license before the Registrar acts?

Robert W. Hagopian:

That’s right.

That’s the bottom line issue in this case.

Thurgood Marshall:

He lose —

John Paul Stevens:

I thought the Registrar was the one who deprived him of his license.

Robert W. Hagopian:

He does but — and I’m saying that he should have a hearing before the Registrar takes that action.

What he — what the Registrar should does that he does in hundreds of other cases, Your Honor, pursuant to statutory scheme in Massachusetts —

Thurgood Marshall:

I think you should really move until the question is asked.

Robert W. Hagopian:

I’m sorry, Your Honor.

Thurgood Marshall:

Because his question was, could the Registrar relieve him of his license immediately?

Robert W. Hagopian:

He does in fact take his license immediately.

Thurgood Marshall:

When he refused to take the test, the Registrar takes it?

Robert W. Hagopian:

That’s correct.

As soon as he gets the letter from the —

Thurgood Marshall:

How in the world can he do that?

He is in an entirely different city, isn’t it?

Robert W. Hagopian:

He sends a notice as soon as he gets the notice from —

Thurgood Marshall:

Yes, what I mean he can’t do it unless he gets the notice, can he?

Robert W. Hagopian:

That’s right.

Thurgood Marshall:

That was the question.

Robert W. Hagopian:

Well, I’m sorry I didn’t understand it that way Your Honor.

Thurgood Marshall:

Well, you should wait and then get into it.

John Paul Stevens:

The Registrar gets the notice.

Robert W. Hagopian:

Yes.

John Paul Stevens:

Then he’s in the position to act unless the individual tried, appears and gives him reasons why that shouldn’t be done.

Robert W. Hagopian:

I know by statute, he is required to act, Your Honor.

John Paul Stevens:

Well, I thought you said that custom accorded the individual a right to be heard before the Registrar.

Robert W. Hagopian:

After the revocation, after the notice goes out then he by custom he can get an immediate hearing but —

John Paul Stevens:

Still Mr. Hagopian, I don’t think you made it clear.

There’s a time interval between the revocation which can be done by mail and the turning in of the physical piece of paper which may be a few days later, that’s the later date he gets the hearing.

Robert W. Hagopian:

That’s right and he can’t drive in the meantime either Your Honor.

John Paul Stevens:

That’s the heart of your case, and you’re not making it at all clear.

Robert W. Hagopian:

Yes the — he cannot drive, the minute he gets the notice, he has to cease and desist.

He then physically has to get that notice to the Registrar.

John Paul Stevens:

And you also, are you not contending that before he gets the notice he has absolutely no right to appear before the magistrate or whatever is called?

That’s right.

That’s your point?

Robert W. Hagopian:

That’s correct, Your Honor, has absolutely no right.

And if, even he does which is what happened to Montrym’s case through his attorney, the Registrar didn’t pay any attention to him because the Registrar has no discretion under the statute.

Thurgood Marshall:

I understand you to alledge traffic violation.

You can’t immediately go before the magistrate?

Immediately?

Robert W. Hagopian:

I’m not sure I understand that question.

You mean before the Registrar —

Thurgood Marshall:

When you are arrested for violation of traffic code —

Robert W. Hagopian:

Right.

Thurgood Marshall:

— of Massachusetts.

Robert W. Hagopian:

Yes.

Thurgood Marshall:

Can’t you go directly before magistrate, then and there if one is available?

Robert W. Hagopian:

You mean to trial, Your Honor on the criminal charges?

Thurgood Marshall:

But you say how to do to it, you said you can’t even go to it?

Robert W. Hagopian:

You can’t go to the Registrar.

Thurgood Marshall:

I said the magistrate.

You can’t go to the magistrate, can you?

Robert W. Hagopian:

We can go to a lower court and criminal court, that’s correct Your Honor.

Robert W. Hagopian:

But the issue of whether he takes the Breathalyzer will not usually come up in that proceedings — in the criminal proceedings.

Thurgood Marshall:

Are you sure of that?

Robert W. Hagopian:

Yes.

Thurgood Marshall:

How are you sure?

Robert W. Hagopian:

Because it’s inadmissible as grants for mistrial for fact that the police introduced the fact that he refused —

Thurgood Marshall:

Even if the magistrate says, I don’t think this man is drunk and turns him loose.

He can do that.

Robert W. Hagopian:

Yes.

Thurgood Marshall:

He can do that.

Robert W. Hagopian:

Yes.

Thurgood Marshall:

I thought so.

Robert W. Hagopian:

But the Registrar will still revoke his license.

Even if he’s found not guilty —

Thurgood Marshall:

I’m not talking about —

Robert W. Hagopian:

Yes, I understand that.

Thurgood Marshall:

— while if you say he could do.

Robert W. Hagopian:

Well, let me say in general Your Honor, the criminal proceedings do not come before the registry action.

This is an unusual case in that sense.

Usually, the criminal proceedings come after the registry revokes so this is a rare case to have a criminal proceeding before the Registrar takes his action.

Lewis F. Powell, Jr.:

Mr. Hagopian, let me ask the question.

Would you challenge the constitutionality of the statute if it worked in this way?

If the police sent a notice and simultaneously send it to the person arrested and also to the Registrar which said in substance in such and such a date, your license will be revoked, you may appear at that time to object if you with to it, if you don’t you’d be automatically revoked.

Would you have any objection to that statute?

Robert W. Hagopian:

No, in fact that’s a procedure that you can —

Lewis F. Powell, Jr.:

All you’re really talking about is the suspension that the fact that there’s an automatic suspension for the interval of time between the notice to the magistrate and the time he can go in and demand hearing.

Do you say that would be alright if it was a notice of what they’re proposed to do rather than the facts that was accorded?

Robert W. Hagopian:

That’s correct and that procedure is inexistence in Massachusetts by the registry in several other statutes.

And I pointed that out in my brief.

He sends a 14-day notice and he says I intend to revoke your license in 14 days and if you object to it, you can come in and have a hearing before the 14 days.

And that procedure is used in thousands of cases.

Potter Stewart:

Well, he should be — give the ground upon which he proposed to do it.

Robert W. Hagopian:

Oh!

Yes, yes he does.

Yes, Your Honor.

Potter Stewart:

And in this case would be because of your refusal to take a Breathalyzer case in such and such a date.

Byron R. White:

And I thought also the hearing that you would require would be more than what custom here would afford.

You would want to be able to call any kind of witness you wanted?

Robert W. Hagopian:

I don’t take that position, Your Honor.

I just think that that I don’t even take the position he has to have a hearing before the registry.

He’s got an opportunity to respond in some way, Your Honor.

Byron R. White:

Let me ask you.

Suppose you have all the hearings that you wanted before the suspension, do you suppose that?

And the Registrar says now you got all the hearing you want and you say yes to all the hearing, I now find there is probable cause to suspend your license.

Robert W. Hagopian:

Yes.

Byron R. White:

And if you want a full hearing some other time, we’ll give it to you.

Robert W. Hagopian:

Right.

Byron R. White:

That would satisfy you?

Robert W. Hagopian:

It certainly would.

Byron R. White:

So you don’t think, you don’t think then just a police report furnishes probable cause to suspend the license even for a day?

Robert W. Hagopian:

That’s correct, Your Honor.

I think that’s really the heart of the issue to due process clause.

There must be some interaction with the citizen himself.

You’ve got the dignicy interest and the representative interest.

William H. Rehnquist:

Well, when you say —

Robert W. Hagopian:

It must be covered by the due process clause and that’s totally absent.

William H. Rehnquist:

When you say the opportunity to respond, you say you don’t want an evidentiary hearing but you want an “opportunity to respond.”

What would the opportunity to respond consist of?

Robert W. Hagopian:

Well, I don’t think that this Court have resolved that issue.

William H. Rehnquist:

Or you’re the one that —

Robert W. Hagopian:

Well, I certainly think he has an opportunity.

Robert W. Hagopian:

He should have the opportunity to file an affidavit to respond with charges in writing.

That’s an absolute minimum.

Potter Stewart:

i.e.and what would be the issue be, that he did refuse?

Robert W. Hagopian:

Right.

Exactly and if he files an affidavit —

Potter Stewart:

Just a minute, would that be the only issue?

Robert W. Hagopian:

No, because there’s three other issues under the statutes before the registry can revoke.

He must show that there was probable cause for the initial arrest.

He must show that there was a valid arrest.

And that involves whether he was on a public way and multitude of other factors.

Potter Stewart:

There would be three issues.

Robert W. Hagopian:

Yes.

Three issues that Massachusetts sets out as a basis for the revocation.

Potter Stewart:

And those would be the only issue.

Robert W. Hagopian:

That’s correct.

William H. Rehnquist:

And then what if the Registrar after a hearing that he had contested all three of those by an affidavit saying the police were wrong and all three said, fine you can have your opportunity to respond, and your license is suspended.

No, no problem?

John Paul Stevens:

You’d say no problem if there was probable cause for that, is that your position?

Robert W. Hagopian:

Yes.

William H. Rehnquist:

Well, but the whole (Voice Overlap).

Robert W. Hagopian:

They’ve got — they’ve got to find that this is at least the prima facie evidence that the government has met there burden improving the —

Byron R. White:

Well, that’s a little more than probable cause?

Robert W. Hagopian:

Well, I suppose it is Your Honor.

Byron R. White:

Well, of course it is, most probable cause of termination to ex parte?

Robert W. Hagopian:

Yes.

Well, no.

Byron R. White:

Yes.

William H. Rehnquist:

Yes.

Robert W. Hagopian:

In criminal proceedings Your Honor that may be true.

In a criminal proceeding, that issue of the search warrant is distinguished in Fuentes versus Shevin and that’s a criminal proceedings.

Robert W. Hagopian:

And I also believe it was distinguish more recently in a case last term which I think you took the majority opinion on and —

Byron R. White:

I’m just suggesting to you that there are an awful lot of important probable cause if terminations that involved loss of liberty that are made ex parte and made only by one person in writing.

Robert W. Hagopian:

In a criminal sense, yes.

In a civil sense, I know of no thing —

William H. Rehnquist:

Are you saying this Court —

Robert W. Hagopian:

— that the Court has ever held were an ex parte that could be a deprivation of a property interest in the civil sense.

Byron R. White:

You can deprive a person of liberty —

William H. Rehnquist:

But not property?

Byron R. White:

— but not property ex parte?

That’s a — that’s a client argument.

Robert W. Hagopian:

Not in — in a criminal sense, yes.

In a civil sense, no.

I know of no case that this Court has held other if there is an emergency doctrine where there could be an ex parte and that’s the issue, an ex parte deprivation of property or liberty in the civil sense.

Leaving the criminal side if the law reside; in the civil sense, I know of no case this Court has ever held absolute emergency condition that there could be an ex parte deprivation.Even on an affidavit, I know of no case that this Court has ever held to that.

Byron R. White:

Well, I am hunting around, a little I’m sure I could find —

Robert W. Hagopian:

Well, I know that there are number of old cases.

I just like to say one last thing, Your Honor.

The State has absolutely no interest in taking this immediately taking this drunks off of the road, Your Honor under the procedure in Massachusetts now everybody whose drunk 95% are now going a rehabilitative program after they convicted they are still on the road.

Why is it?

What justification is there for the state to take away that man’s right to some hearing before the state takes — the registry takes any action if in fact, after even if they are drunk and are all convicted they are all on the road anyway, Your Honor.

There is no legitimate state —

Potter Stewart:

They are not for 90 days if they refuse to take the Breathalyzer test under the present act.

Robert W. Hagopian:

That’s — that’s correct Your Honor.

But that’s not the issue.

The issue is, is there any immediate reason to take to impose that 90-day sanction.

Potter Stewart:

Well, the Massachusetts by enacting this legislation said there yes, there is.

Or else it would not have acted the legislation.

Robert W. Hagopian:

Well, I submit to you, Your Honor that they have enacted it because they feel that instant punishment.

The metering out of instant punishment —

Potter Stewart:

Suspension of license —

Robert W. Hagopian:

— is a deterrent for people who refuse to take the Breathalyzer.

Potter Stewart:

Precisely, because they thought there was a need for it.

Presumably, they would have enacted the law.

Robert W. Hagopian:

Yes.

William H. Rehnquist:

That’s what Judge Campbell said, wasn’t it that purpose was to deter people from refusing to take the Breathalyzer.

Potter Stewart:

And I think that’s important to our system of justice.

And it always has been.

I’ve never known why don’t we do away with trials and we can insist, say we’ll put you in jail before we give you a trial and you can stay in there and then you can have your trial.

William H. Rehnquist:

Maybe you should.

Robert W. Hagopian:

I don’t think that deters crime.

I don’t think that —

Warren E. Burger:

Maybe we should do away with oral argument.

Thank you gentlemen.

The case is submitted.