In July 2003, the nation was shocked by headlines that read “86 year old driver kills 10 and injures at least 35 at Santa Monica’s Farmer’s Market.”
That early summer morning, as shoppers strolled through the open air market, retired George Welder – confused and disoriented – hit the gas pedal instead of the brake of his 1992 Buick LeSabre. The car plowed through the crowded open air market for three blocks – bodies literally flew over his car.
Witnesses describe the elderly driver as having his “eyes open, hands on the steering wheel at the 10 o’clock and 2 o’clock position” while his car traveled 995 feet at speeds of up to 65 mph. His car finally stopped only after hitting a parked car. In the aftermath, 10 lay dead and 65 were injured. The crowd was so incensed they attempted to drag him from his car to initiate “street justice”. Cooler heads intervened to protect the man who was later described by his neighbors as very kind and active in the community.
Subsequently, Welder was charged and held to answer on 10 counts of Vehicular Manslaughter with Gross Negligence. He is still currently awaiting trial. If convicted, the 86-year-old grandfather with no criminal record faces 18 years in state prison.
Tests showed no signs that Welder was under the influence of drugs and alcohol. His statements to the police that he tried to stop the car, not floor it, suggest that his actions were unintentional. According to Department of Motor Vehicles (“DMV”) records, Welder had no accidents or moving violations. And he had passed his most recent written and eye tests at the DMV.
This horrific incident raised the obvious question: “Might his age be the blame?” The public concern (outrage) was directed toward him and, to some degree, toward his family who allegedly “let this happen”. It renewed the debate over whether the State of California should take more aggressive steps to determine when to stop the elderly from driving. And it raised the question, “How does the state stop dangerous elderly drivers without unduly limiting the freedom of competent elderly drivers?”
Nationally, 80% of people over 65 in the United States have a driver’s license. By 2025, it is estimated that the number of drivers 65 years of age or older will increase 250%. See, Berger Bernhardt, Creed on “Mobility and Independence: Changes and Challenges for Older Drivers.” (U.S. Department of Health and Human Services and the National Highway Traffic Safety Administration, 1998). In 2000, the population of Californians 65 years and older totaled slightly under 4 million people, two-thirds of whom were licensed drivers. By 2020, it is projected that there will be approximately six million seniors in California, four million of whom will be licensed drivers. See, California Department of Motor Vehicle’s Aging Driver’s Fact Sheet, www.eldersafety.org, July 2004.
Although senior drivers drive less, they have more accidents per mile driven. On average, elderly drivers cause fewer crashes per year than younger drivers, but their fatal crash involvement increases with age. Nonetheless, crashes caused by older adults rarely kill other people on the road. Rather, it is the older adults themselves that are more likely to be killed or seriously injured in a crash due to normal aging of the body and frailty of the system. See, Cal. DMV’s Aging Driver’s Fact Sheet, www.eldersafety.org, July 2004.
Thus, aging, by itself, is not necessarily the problem. The incident in Santa Monica was extreme. Of course, the incidence of chronic diseases such as dementia, Alzheimers, diabetes, and visual impairments increase with age, and the impact from medications to control the diseases may also adversely affect driving.
So, while a small number of older adults may have a condition that precludes safe driving, a majority of older drivers can continue to drive safely with certain restrictions or requirements for whatever impairments they may have. Such restrictions or requirements may include driving only during the day, attending special driving courses, installing special equipment for the car, or using additional medical devices such as eye glasses or hearing aids.
Attorneys’ providing legal services to seniors and their families may be presented with questions, such as: “Should my father still be driving?” “How can I persuade my mother that it’s time to turn in the keys?” The discussion with a client about the possibility that driving may no longer be an option is challenging. There are a number of programs available throughout the country that focus on driving skills and assessments for seniors. AARP’s Driver Safety Program is the most well known. The local AAA also has driving programs to help mature drivers improve their skill or identify their weaknesses.
The California Legislature has stated that “driving a motor vehicle on public streets and highways is a privilege and not a right.” Cal. Vehicle Code (“CVC”) §14607(a). Our California Supreme Court has held that this statute passes muster because the highways are subject to reasonable regulation for the public good, ruling that the right to operate motor vehicles in public places is “not a natural and unrestrained right but a privilege subject to reasonable regulation .” Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 79. Thus, the DMV has “the power to revoke and/or restrict a license upon non-compliance of prescribed conditions.”Id. Although a driver’s license is not a fundamental right, it does involve an important “property” interest. Id. The “privilege” cannot be denied without some procedural due process. Thus, it has the characteristics of a “right”. Id.
The importance in our society of the “right” to operate a motor vehicle cannot be underestimated. When discussing with a senior the possibility that he or she might need to stop driving, we are dealing with a “right” that goes to the essence of their being. Just as obtaining a driver’s license was the rite of passage to adulthood, the removal of the privilege represents a tangible loss of independence and status. Seniors are affected by the loss of license — socially, emotionally and economically.
The California Vehicle Code (“CVC”), the California Administrative Procedures Act, and the California Code of Regulations (“CCR”) authorize the DMV to investigate and conduct Driver Safety Hearings. CVC §§12818, 13800, 13801 and 14000; CCR §§100.01 and 110.4. There are four different bases for denying the “right to drive” which each have corresponding Driver Safety Hearings conducted by the DMV:
Not all hearings are conducted in the same manner but the purpose is the same – to ensure due process is afforded to all drivers before denying them the right to drive and to ensure public safety is protected. This article examines the administrative Reexamination Process.
The DMV is forbidden by law to require a driver to be tested based on age alone. However, those who are 70 years and older must renew their license in person at the DMV field office and pass the vision and written test. CVC §12814.5 (c). Additionally, the DMV has the authority to investigate and reexamine one’s ability to operate a motor vehicle safely at any time or any age, based on a physical or mental condition, or if information suggests that the driver no longer has the knowledge and/or skill necessary to drive safely.
The DMV receives information from many sources regarding whether an elderly driver may have a medical or physical condition which affects their ability to operate a motor vehicle safely. Such sources include: medical personnel, unsolicited letters from family members and friends, and law enforcement officers who make contact due to traffic violations and/or at accident scenes.
Under current American Medical Association (“AMA”) Guidelines, physicians are permitted to report a patient’s serious driving impairment to the DMV. See, American Medical Association’s Physician’s Guide to Assessing and Counseling Older Drivers (National Highway Transportation Safety Administration, June 2003). While the Guidelines take the position that reporting an impaired senior to the DMV does not violate the physician-patient privilege, the reporting advisory is not mandatory. California requires physicians to report patients of any age who suffer from one or more diseases/conditions, including epilepsy, dementia and some sorts of neuromuscular diseases. Health & Safety Code §103900(a).
There does not appear to be any problem with HIPAA Privacy Regulations since there is a HIPAA exception for disclosures required by law. The author knows of no other profession that has an affirmative duty to report medically and/or physically impaired drivers.
If the DMV receives information that a driver may cause a potential driving risk to themselves or others, the DMV may do one of the following:
At a DMV hearing, a driver has the following rights: (1) to be represented by an attorney, at the driver’s expense; (2) to review the evidence and cross-examine the testimony of any witness for the DMV; (3) to present evidence and relevant witnesses on behalf of the driver; (4) to testify on his or her own behalf.
A Driver Safety Hearing Officer is an employee of the DMV who has received specialized training to conduct hearings. The Hearing Officer sits as both the proponent of evidence and the finder of fact. It is important to note that the rules of evidence, although relaxed, do apply. An attorney representing a driver should be prepared to introduce medical evidence, if necessary, and additional evidence in mitigation. The DMV hearing officer weighs all the evidence and makes a decision based on a preponderance of the evidence standard. See, Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536. After a DMV hearing, the officer can implement a range of administrative actions from no action, to restriction, suspension, or an indefinite revocation.
If the driver disagrees with the decision, the driver can request a departmental review within 15 days from the written decision or an appeal to the superior court by way of petition for Writ of Mandamus within 30 days or up to 94 days from the written decision depending on the particular circumstances of the case. All hearings are recorded, therefore an attorney should be sure to make an adequate record in the event it is necessary to prepare a petition for Writ of Mandamus to the Superior Court following an adverse DMV decision.
Maneuvering through the administrative maze of the DMV can be challenging even for a seasoned courtroom attorney. The procedural rules are outlined in the CVC and the CCR, but they be interpreted narrowly by a Driver Safety Hearing Officer. Make a careful record in the event you have to appeal the decision. Next month, I will discuss other DMV Hearings and procedures.