Perkey v. Department of Motor Vehicles

721 P.2d 50, 42 Cal. 3d 185, 228 Cal. Rptr. 169, 1986 Cal. LEXIS 213

• Court: California Supreme Court
• Decided: July 24, 1986
• Docket: S.F. 24708
• Status: Published

Opinions

Opinion

BIRD, C. J.

May the state compel an individual to provide a fingerprint as a condition for obtaining a driver’s license, where the fingerprint is to be disseminated to third parties for purposes unrelated to motor vehicle safety?

I.

Vehicle Code section 12800, subdivision (c) requires each applicant for a driver’s license to submit a fingerprint to the Department of Motor Vehicles (hereafter DMV or department).¹ In enacting this provision, the Legislature stressed the importance of such a requirement to maintaining a reliable licensing system: “The state has adopted a policy that the driver’s license and identification card issued by the Department of Motor Vehicles are the basic identification documents in this state and that the state has a compelling interest in insuring the accuracy and integrity of this identification system. It is the purpose and intent of this act to further secure the accuracy and integrity of this system by requiring the application for a license or card to include a legible thumb or fingerprint of the applicant, effective July 1, 1982.” (Stats. 1981, ch. 1102, § 3, pp. 4311-4312.)

The declarations² reveal that the DMV indiscriminately discloses the fingerprints obtained from license applicants to the general public. There are numerous admissions in the record of instances in which the DMV has sold its computerized fingerprint file—or access to it—to anyone who can afford to pay the fee.³

In August of 1982, plaintiff (hereafter petitioner) Christopher Ann Perkey applied for a renewal of her driver’s license. She filled out the renewal form, paid the application fee, passed the eye test and the written examination, but refused to be fingerprinted. The DMV denied her application for renewal.

The denial was based solely on petitioner’s refusal to be fingerprinted. The department concedes that petitioner has otherwise satisfied all requirements for renewal. While the department has the discretion to issue a license to an applicant who has not complied with Vehicle Code section 12800, subdivision (c) (Veh. Code, § 12809, subd. (b)), the declarations establish that it is the department’s policy to deny a license to any applicant who refuses to be fingerprinted.

Petitioner has never been fingerprinted by a government agency. She was first licensed to drive in New Jersey in 1959. She later obtained driver’s licenses in Indiana and Wisconsin. She has also held licenses to teach public school in each of those states. However, none of the agencies involved conditioned the issuance of a license on her submission of a fingerprint.

Petitioner was first licensed to drive in California in 1975. At that time, the submission of a fingerprint on the driver’s license application was optional, and petitioner elected not to be fingerprinted.

Petitioner concedes that the DMV could properly collect fingerprints solely for its own use in detecting and preventing fraudulent license applications. However, she contends that the collection and retention of fingerprints for unrestricted use in a statewide identification system violates the right of personal privacy guaranteed by the California Constitution. (Cal. Const., art. I, § 1.) Specifically, she argues that Vehicle Code section 12800, subdivision (c), by requiring the submission of a fingerprint for use in such a system impermissibly conditions access to a public benefit on the waiver of a constitutional right.

Petitioner sought a writ of mandate to compel the DMV to renew her driver’s license without requiring a fingerprint. In the alternative, she requested a declaration that the fingerprint requirement is unconstitutional. The trial court denied the requested relief. It is from that judgment that petitioner appeals.

II.

Petitioner urges this court to strike down the mandatory fingerprint requirement as a violation of substantive due process. Although petitioner acknowledges that the state has the power to regulate the right to drive, she maintains that Vehicle Code section 12800, subdivision (c) is unconstitutional because a proper nexus has not been established between the fingerprint requirement and the state’s interest in promoting highway safety.

When called upon to evaluate a substantive due process challenge to a legislative police power measure that does not impinge upon fundamental rights, constitutional principles require the reviewing court to apply the rational basis test. (See People v. Glaze (1980) 27 Cal.3d 841, 845-846 [166 Cal.Rptr. 859, 614 P.2d 291].) The right to drive is not a fundamental right under the California Constitution. (Hernandez v. Department of Motor Vehicles (1981) 30 Cal.3d 70, 80 [177 Cal.Rptr. 566, 634 P.2d 917].) Accordingly, the standard to be applied in determining whether the challenged provision comports with the requirements of due process is that enunciated in Hale v. Morgan (1978) 22 Cal.3d 388, 398 [149 Cal.Rptr. 375, 484 P.2d 512]: “In the exercise of its police power a Legislature does not violate due process so long as an enactment is procedurally fair and reasonably related to a proper legislative goal.”⁴

The Legislature adopted Vehicle Code section 12800, subdivision (c) to ensure the accuracy of the department’s drivers’ license records. (See Stats. 1981, ch. 1102, § 3, pp. 4311-4312.) As the declarations in this case demonstrate, the department faces many difficulties in its efforts to verify the personal identification information contained in the licensing system. In past years, the incidence of fraud and duplicate licensing has been steadily increasing, while the successful detection of such illegality has been declining. From September of 1981 to September of 1982, the last year that fingerprints were still optional, 1,858 incidents of suspected fraud were encountered by the department. Furthermore, a department study conducted in 1980 indicated that approximately 186,000 more driver’s licenses had been issued to males between the ages of 20 and 44 than there were eligible persons in this category.

The significance of these fraudulently obtained licenses becomes evident when one considers the multitude of cases in which the department denies, suspends, or terminates the driving privileges of persons who are dangerous drivers. (Veh. Code, § 13352.) It is not uncommon for a person whose license has been revoked pursuant to a conviction for reckless driving or driving under the influence of drugs or alcohol to apply for a new license using false identification. To the extent that the fingerprint requirement will deter this type of fraud there can be little doubt that it will operate to promote highway safety.

Thus, the interception of applications from those who pose a serious danger to public safety clearly constitutes a proper legislative objective. The question remaining is whether the statutory provision requiring fingerprints is reasonably related to that objective.

The department asserts that the utilization of fingerprint technology is the only reliable means of ensuring the integrity of its records. The handwriting specimen furnished by the applicant is too small and too easily simulated to provide a verifiable exemplar. Similarly, the photograph appearing on the license does not provide an accurate means of detecting fraudulent applications since an applicant can easily alter his or her appearance with wigs, makeup, or a change in facial hair. The only assuredly accurate source of identification which remains immutable throughout an individual’s lifetime is his or her fingerprints. Thus, the statutory provision requiring the submission of a fingerprint as a part of the license application process bears a reasonable and rational relationship to the goal of promoting the safe and lawful use of California highways.

Petitioner’s next contention is that the mandatory fingerprint requirement violates her right to privacy. Preliminarily, this court must examine the procedure itself to determine whether it involves the kind of intrusive invasion of bodily integrity that has been found either to violate “due process” rights guaranteed by the Fifth and Fourteenth Amendments (Rochin v. California (1952) 342 U.S. 165, 172-174 [96 L.Ed. 183, 190-191, 72 S.Ct. 205, 25 A.L.R.2d 1396]) or to contravene the Fourth Amendment’s proscription against “unreasonable” searches (Schmerber v. California (1966) 384 U.S. 757, 766-772 [16 L.Ed.2d 908, 917-920, 86 S.Ct. 1826]).

The decisional authority in this area demonstrates that fingerprinting alone does not improperly infringe upon an individual’s right of privacy. (See United States v. Sechrist (7th Cir. 1981) 640 F.2d 81, 86.) In Davis v. Mississippi (1969) 394 U.S. 721 [22 L.Ed.2d 676, 89 S.Ct. 1394], the United States Supreme Court indicated that fingerprinting may not implicate the Fourth Amendment since it “involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.” (Id., at p. 727 [22 L.Ed.2d at p. 681]; United States v. Dionisio (1973) 410 U.S. 1, 15 [35 L.Ed.2d 67, 80, 93 S.Ct. 764].) Unlike forcible stomach pumping (see Rochin v. California, supra, 342 U.S. 165) or the involuntary obtaining of a semen sample (People v. Scott (1978) 21 Cal.3d 284 [145 Cal.Rptr. 876, 578 P.2d 123]), the physical process by which fingerprints are taken does not require “penetration[] beyond the body’s surface.” Therefore, it does not readily offend those principles of dignity and privacy which are fundamental to our notion of due process. (See Rochin v. California, supra, 342 U.S. at p. 172 [96 L.Ed. at p. 190].) In light of the unobtrusive nature of the fingerprinting process, the courts in this state have permitted the use of fingerprinting in many noncriminal contexts. (See, e.g., Miller v. Murphy (1983) 143 Cal.App.3d 337, 344-346 [191 Cal.Rptr. 740] [municipal ordinance requiring customers of pawnbrokers to be fingerprinted upheld]; People v. Stuller (1970) 10 Cal.App.3d 582, 593-597 [89 Cal.Rptr. 158, 41 A.L.R.3d 712] [ordinance requiring bartenders to submit fingerprints to the local police department upheld].)

Petitioner also alleges that the collection and dissemination of fingerprints for identification use by various governmental agencies or private entities violates her right of privacy as protected by article I, section 1 of the California Constitution. As this court will conclude, the DMV’s dissemination of fingerprint data to third parties for purposes unrelated to motor vehicle safety is unlawful under several provisions of the Civil and Vehicle Codes. Therefore, the court need not reach the related question of whether petitioner’s privacy rights are violated by dissemination of such data.

In 1972, the people of California amended the state Constitution to provide explicit language protecting the personal right of privacy.⁵ Five years

later, the Legislature enacted the Information Practices Act of 1977 (the Act). (Civ. Code, § 1798 et seq.)⁶ The Act delineates an elaborate statutory scheme specifically designed to implement the privacy amendment.

Section 1798.1, one of the Act’s introductory provisions, captures the spirit of the legislation: “The Legislature declares that the right to privacy is a personal and fundamental right protected by Section 1 of Article I of the Constitution of California and by the United States Constitution and that all individuals have a right of privacy in information pertaining to them.”

In the Act’s declaration of purpose, the Legislature stated that the right to privacy was being threatened by “the indiscriminate collection, maintenance, and dissemination of personal information and the lack of effective laws and legal remedies” and that “[t]he increasing use of computers and other sophisticated information technology has greatly magnified the potential risk to individual privacy that can occur from the maintenance of personal information.” (§ 1798.1, subds. (a) and (b).)

To guard against this threat, the Act places strict limits on “the maintenance and dissemination of personal information.” (Id., subd. (c).) “Personal information” is defined to include “any information that is maintained by an agency that identifies or describes an individual, including, but not limited to, his or her name, social security number, physical description, home address, home telephone number, education, financial matters, and medical or employment history. It includes statements made by, or attributed to, the individual.”⁷ (§ 1798.3, subd. (a), italics added.)

Under the Act, state agencies are required to limit the collection and retention of personal information to that necessary to accomplish the agency’s specific purpose (§ 1798.14). If an agency maintains such a record (§ 1798.32), individuals must be informed when they request it. Further, they may request amendments to correct any inaccurate information (§§ 1798.35-1798.37). More importantly, all disclosures of personal information are restricted (§ 1798.24), and an accounting of such disclosures must be made, including disclosures pursuant to subpoena or search warrant (§ 1798.25).

Although fingerprints, as such, are not specifically listed in the definition of “personal information,” there can be no doubt that the Act was intended to provide protection for precisely this type of record. Fingerprints fall within the category of information “that identifies or describes an individual.” (§ 1798.3.) Moreover, a fingerprint is a much more private matter than a name or address and its disclosure can lead to much greater intrusions on privacy than the simple disclosure of an individual’s name.

The record in this case contains admissions of unrestricted use of the DMV’s fingerprint files by numerous government agencies and private parties⁸ to identify individuals without their knowledge or consent. The collection and retention of fingerprints for such unspecified and widespread usage flagrantly disregards the express purpose of the Legislature in enacting the Act. Despite the fact that this type of information clearly falls within the ambit of the Act, there remains one potential obstacle to holding the DMV’s fingerprint files within the protective mantle of the privacy legislation.

Section 1798.24, which sets forth the conditions under which “personal information” may be disclosed, includes among its numerous subdivisions, a provision which permits the disclosure of information “[p]ursuant to Article 3 (commencing with Section 1800) of chapter 1 of Division 2 of the Vehicle Code.” (§ 1798.24, subd. (m).) Section 1808 of the Vehicle Code provides that “except as provided in sections 1808.4, 1808.5, 1808.6 and 1808.7, all records of the department relating to the registration of vehicles, such other information as is contained on an application for a driver’s license, and abstracts of convictions and of accident reports required to be sent to the department in Sacramento shall be open to public inspection during office hours.” Furthermore, Vehicle Code section 1810 authorizes the department to sell information from its records to the general public.

Notwithstanding section 1808’s broad language permitting disclosure of the information on a driver’s license application, it need not be read to permit indiscriminate dissemination of the fingerprint records. Vehicle Code section 1808.5, one of the exceptions to the disclosure requirement, states in relevant part that “[a] 11 records of the department relating to the physical or mental condition of any person ... are confidential and not open to public inspection.” While in the past this provision has generally been applied to protect the confidentiality of what might ordinarily be termed “medical” information—such as information relating to an applicant’s eyesight (see 55 Ops.Cal.Atty.Gen. 122 (1972); 26 Ops.Cal.Atty.Gen. 136 (1955))—a reasonable interpretation of the provision affords protection of that portion of a driver’s license application that reveals the applicant’s fingerprint.

Such an interpretation does not conflict with the statutory language because a fingerprint clearly relates to the “physical condition” of the applicant. Also, it furthers the general underlying purpose of the provision, which is to protect the confidentiality of information revealed by a driver’s license application where exposure will improperly infringe the applicant’s privacy rights.

Moreover, an interpretation which affords confidentiality to an applicant’s fingerprint is supported by the long-recognized principle that statutes are to be construed, if possible, so as to avoid potential constitutional problems. (See, e.g., Lynch v. Overholser (1962) 369 U.S. 705, 710-711 [8 L.Ed.2d 211, 215-216, 82 S.Ct. 1063], United States v. Delaware & Hudson Co. (1909) 213 U.S. 366, 407-408 [53 L.Ed. 836, 848-849, 29 S.Ct. 527].) Any other interpretation of the Act’s statutory scheme, which would permit the DMV to freely disseminate its fingerprint files to all interested parties, would raise serious concerns under the state constitutional right of privacy. Therefore, Vehicle Code section 1808.5 in conjunction with the protective provisions of the Act must be interpreted to serve as a guard against misuse or improper disclosure of the fingerprint records by the DMV.

Accordingly, this matter is remanded to the trial court, with directions to fashion appropriate declaratory and/or injunctive relief in light of the relevant statutory privacy provisions. In all other respects the judgment of the trial court is affirmed.

Broussard, J., Reynoso, J., and Grodin, J., concurred.

1 Section 12800 provides in relevant part that “Every application for a driver’s license shall contain all of the following information: . . . [U] (c) A legible print of the thumb or finger of the applicant.”

2 The evidence presented to the trial court consists of sworn declarations submitted by petitioner and by various officials of the department and other state agencies. The parties stipulated that the trial court could consider these declarations as evidence.

3 For example, the DMV’s fingerprint files are open to use by sophisticated private investigation services. The use of such investigators by nuclear power companies to conduct extensive surveillance and intelligence activities against opponents of nuclear power in an effort to chill and repress the expression of antinuclear views has been documented. (See Kairys & Shapiro, Remedies for Private Intelligence Abuses: Legal and Ideological Barriers (1980-1981) 10 N.Y.U. Rev. L. & Soc. Change 233; Peterzell, Nuclear Power and Political Surveillance (1981); Kairys, Civil Liberties and the Fight over Nuclear Power (Dec. 17, 1979) National L.J. p. 19, col. 1; Warnock, Nuclear Power and Civil Liberties, Can We Have Both? (1979).)

4 Petitioner appears to have abandoned her contention that under the California Constitution the right to drive is a fundamental right that the state may regulate only for a compelling purpose.

5 Article I, section 1 (as amended in Nov. of 1974) now reads: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing.and obtaining safety, happiness, and privacy.”

6 All subsequent statutory references are to the Civil Code unless otherwise indicated.

7 The Act was amended in 1985. (Stats. 1985, ch. 595.) For purposes of awarding declaratory relief, this court has utilized the amended Act.

The principal effect of the amendments was to eliminate the terms “confidential information” and “nonpersonal information” from the Act. The term “confidential information" defined information which, for specified purposes, could be withheld from the persons to whom it pertained. (See former § 1798.3.) Section 1798.40 of the amended Act now fulfills this function. The term “nonpersonal information” designated information which was not deemed to warrant coverage by the Act. (See former § 1798.3.)

In addition to these changes, the provision defining “personal information” was amended. The previous provision defined “personal information” as “any information in any record about an individual that is maintained by an agency, including, but not limited to, his or her education, financial transactions, medical, or employment history.” (See former § 1798.3, subd. (b).) The recent amendment added the language “information . . . that identifies or describes an individual.” (§ 1798.3, subd. (a).) The DMV's fingerprint files must be deemed “personal information” within the meaning of either provision. Therefore, the analysis in this opinion is applicable to those individuals whose fingerprints were disseminated by the DMV while the unamended Act was in force.

8 The DMV’s fingerprint files are open to use by private investigation services.