The opinion
LEVIN H. CAMPBELL, Circuit Judge
(dissenting).
I agree that the legal standard to apply in determining whether the Massachusetts procedures comply with due process is *401 found in Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976), a case holding that social security disability benefits may be suspended during the year that it may take to hold and conclude a hearing on the suspension. Referring to earlier due process decisions, the Court said,
“These decisions underscore the truism that ‘[d]ue process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ . . . Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected.”
Id. at 334 , 96 S.Ct. at 902-903 [citations omitted]. My disagreement with my brothers stems from my belief that they underestimate the adequacy of the protections presently afforded to a licensee, and are vastly optimistic insofar as they feel that all the Commonwealth is here being asked to do is provide some kind of “minimal” pre-suspension procedure, not a full-dress hearing. In my calculus of the affected governmental and private interests, see id., the Commonwealth deserves to come out on top.
It should be borne in mind that under the challenged state procedures a protesting licensee is entitled to obtain an immediate hearing upon surrender of his license. He need not wait several months. The parties have stipulated, and the court agrees, see n.ll, that Massachusetts provides the licensee with the right to an immediate hearing before the Registrar of Motor Vehicles, with counsel, the very day that he surrenders his license, the hearing being addressed to the only relevant issues, namely whether there was probable cause to arrest, whether there was an arrest, and whether the person arrested refused to submit to a test. A negative finding on any issue leads to reinstatement of the license. Petitioner did not elect to request such a hearing, preferring to seek a hearing under a slower alternate procedure provided by M.G.L. c. 90, § 28. We are thus talking about a period of suspension that lasts no longer than it takes for the licensee’s objections to be fully ventilated. If, as my brothers suggest may sometimes be the case, the errors are merely “clerical”, the hearing would be quickly over and the license recovered the same day it was surrendered. If, as seems more likely, the licensee is contesting some aspect of the police officers’ version of what occurred, the hearing may take a little longer, since the officers will have to be brought in to testify. In any event, we are talking about no more than several days — as contrasted with the year or more which the Supreme Court found tolerable, in different circumstances, in Eldridge, see 424 U.S. at 342 , 96 S.Ct. 893 .
To be sure, even a brief suspension might be intolerable if based upon inadequate threshold procedures. The probable reliability of such initial procedures is relevant in determining whether the process, overall, is fair. See id. at 343 , 96 S.Ct. 893 . Here the brief pre-hearing suspension rests upon a substantial prima facie showing of violation which, in turn, rests upon facts so simple that the likelihood of police error is small. The relevant facts are whether there was a valid arrest and an improper refusal to take a test. These facts must be reported by the officer in whose presence the test was refused, under penalties of perjury, with an endorsement by a third party who witnessed the refusal as well as by the Chief of Police. That such a report will be reliable in the vast majority of cases seems to me to be a reasonable assumption. The officer assumes personal responsibility for the report; he can be held personally liable, and may be in trouble with his Chief, for any wilful misrepresentation; the facts being reported are few and susceptible of direct observation.
Still, in an imperfect world, one may concede the possibility of occasional mistake, 1 and my brothers argue that in Eldridge , it was at least possible to recompense the beneficiary for cancellation of any benefits *402 later found to have been due. There is, they say, no way to make someone whole for mistaken deprivation of a license. I suppose the latter has to be conceded. However, by the same token, a totally disabled indigent is unlikely to be made whole in any true sense for the suffering undergone during the full year that social security benefits were wrongfully withdrawn. Losing a license for, at most, a few days is surely not to be compared in seriousness with the extended withdrawal of benefits sanctioned in Eldridge .
But of course it is not enough merely to point out that the chance of error is small and that the deprivation, in case of error, is less than catastrophic. These facts are important, but under Eldridge it must also be asked whether the state’s interests justify imposing even this rather minimal burden in the rather unlikely event of a mistake. My brethren think not. They say that “since the plaintiff is not demanding a full evidentiary hearing, the provision of some kind of additional pre-suspension procedure designed to protect against such errors would be minimal. . . They suggest that all that is wanting is “the mere provision of an opportunity to respond to the police assertions contained in the Report.” If that is all, this case is surely a waste of effort. Even the present law does not prevent the writing of a “mere” response to police assertions. Of course, such a gratuitous response is unlikely to do any good. Presumably what the court really means is that there should not only be an opportunity to respond but a duty upon the Registrar to consider and act upon the response, which means providing administrative machinery either to resolve the controversy on the spot or to defer suspension of the license until after a hearing. I suggest that such procedures, to be meaningful, will impose substantial new administrative burdens, will lessen the effect of the sanction, and will in most instances require an evidentiary hearing. To be sure, a very routine preliminary screening might painlessly catch an occasional “clerical” error, but it is not forthright to pretend that clerical errors are what this case is all about. Such an error, if not resolved informally by a phone call to the police, can be quickly corrected at the hearing which the licensee immediately receives when he surrenders his license. The more likely claim of error will not be “clerical”: it will involve, like the present case, a claim which the Registrar can only determine after a hearing attended by both sides. Issues of fact and credibility will most likely be present. What good, then, will “the mere provision of an opportunity to respond” have done? Arguably the Registrar can make a judgment, if the licensee’s story sounds compelling, to put off suspension until after a hearing. But if he is granted this kind of discretion 2 I suggest that many persons refusing to take a test will now be encouraged to fight suspension by protest and written argument. The number of protests and probably of hearings will increase since there will be a clear tactical advantage to filing an objection. At the very least, the objection may serve to delay the suspension. The ultimate effect will be to lessen the reality of the threat of immediate suspension and to impose new burdens and costs on the Registrar.
I think that Massachusetts legislators could rationally have determined that only by delaying adjudicative procedures until after surrender of the license could they assure an expeditious carrying out of the sanction adopted to force people to submit to the chemical or breath test. The more discretion is given to the Registrar to postpone the evil day when the license is surrendered, the more likely it is that some drivers will be able to discover “angles” to evade the consequences of their refusal to submit to the test and the more pressures will be generated upon officials to back down. The Attorney General advises us that the cases where drivers decline to submit to the test number in the thousands. *403 We are dealing with a matter where a balance must be struck between the requirements of realistic enforcement and the affording of ideal procedures. Judges and lawyers all too readily see the world as an endless extension of courtrooms and hearings. There is also the right of the public to highway regulations that are sufficiently potent to accomplish their goals.
In my view, given the seriousness of the problem which this statute seeks to attack, drunken driving and the desirability of arming the police and the Registrar with workable weapons to require submission to chemical and breath tests, the procedures here challenged are not unreasonable. The maximum harm to the occasional citizen who is mistakenly embroiled — a very brief suspension of his license 3 — is justified by the practical need for summary procedures that can be applied on a statewide basis to thousands of motorists. Even the fairest of procedures cannot avoid the possibility of occasional error. Society could not exist if the Constitution required nothing but error-free laws. Innocent men are occasionally put to the expense and fright of a criminal trial; license renewals get lost in the mail; credit cards get charged to the wrong account. Due process does not require society to stop functioning until the millenium.
This, moreover, is the sort of legislation which is likely to be corrected by the legislature itself if too harsh in practice. Most voters are drivers, and will complain in no uncertain terms if procedures perceived to be oppressive are applied to themselves, their children and their neighbors. Traffic regulations involve a tension between our desire for maximum freedom and our desire for maximum protection from “the other fellow”. More people die yearly in traffic fatalities than in most wars. Alcohol is said to be the outstanding killer. I think that the legislature is ordinarily a better forum than the federal court for deciding just how the balance should be struck between toughness and tenderness in this area. The danger of real oppression seems modest. I would dismiss the petition.
. The legislature could also take realistic account of the likelihood of post facto pressures and excuses of the cock and bull variety upon both police and registry personnel.
. Of course, if the Registrar were granted no discretion, a pre-suspension proceeding would be pointless.
. If a hearing on the suspension were not available for a protracted period of time, I would feel quite differently. Here the citizen is merely losing his license during the hearing period on the basis of a sworn police report. The limited summary power seems to me no different than the summary power to tow an illegally parked vehicle.