OFFICIAL OPINION No. 1

OFFICIAL OPINION No. 1 Drugs and Dri1•ing 1. An individual in a drug-free treatment program can obtain a driver's license or permit and PennDOT does not have the authority to refuse a driver's license or permit solely on the ground that such an individual is in a drug-free treatment program. 2. Penn DOT does not have the authority to suspend the operating privileges of an in- dividual solely on the ground that he or she is receiving treatment in a drug-free program. 3. Penn DOT has the authority, and is required, to refuse a license or permit to an in- dividual in an approved methadone program provided the individual is, in fact, addicted to the use of narcotic drugs. The Secretary of PennDOT must afford the applicant an opportunity to have a hearing on the issue of drug addiction and the applicant shall be given the opportunity to show that the drug addiction does not render the applicant incompetent to drive or is not disabling to the extent that it would be unsafe for the applicant to drive. 4. PennDOT has the authority to suspend the operating privileges of an individual receiving treatment in an approved methadone program provided that Penn DOT affords the individual an opportunity for a hearing and determines that such a person is incompetent to operate a motor vehicle or is afflicted with mental or physical infirmities or disabilities making it unsafe for such person to operate a motor vehicle. 5. Penn DOT should immediately promulgate regulations ensuring that applicants are apprised of their rights. 6. The legislature should reexamine the provision of the Vehicle Code which precludes narcotic addicts in methadone treatment programs from obtaining per- mits or drivers' licenses in view of the legislative and societal interest in rehabilitating such addicts. Honorable Jacob G. Kassab Secretary of Transportation Harrisburg, Pennsylvania Gentlemen: and Harrisburg, Pa. January 11, 1974 Richard E. Horman, Ph.D. Executive Director Governor's Council on Drug & Alcohol Abuse Harrisburg, Pennsylvania Your agencies have both requested advice concerning the operating privileges of persons licensed to drive in the Com- monwealth of Pennsylvania who are in drug-free treatment programs or in approved methadone treatment programs. Four questions have been posed. Can an individual in a drug-free treat- ment program obtain a driver's license or permit and does Penn- DOT have the authority to refuse such an individual a driver's license or permit? Does PennDOT have the authority to suspend the 2 OPINIONS OF THE ATTORNEY GENERAL operating privileges of an individual in a drug-free treatment program? Does an individual in an approved methadone treatment program have the right to obtain a driver's license or permit and does PennDOT have the authority to refuse a license or permit to such an individual? Lastly, does PennDOT have the authority to sus- pend the operating privileges of an individual in an approved methadone treatment program? It is our opinion, and you are so advised, that(l) an individual in a drug-free treatment program can obtain a driver's license or per- mit and PennDOT does not have the authority to refuse a driver's license or permit solely on the ground that such an individual is in a drug-free treatment program; (2) PennDOT does not have the authority to suspend the operating privileges of an individual solely on the ground that he or she is receiving treatment in a drug-free program; (3) PennDOT has the authority and is required to refuse a license or permit to an individual in an approved methadone program provided the individual is, in fact, addicted to the use of narcotic drugs. The Secretary must afford the applicant an oppor- tunity to have a hearing on the issue of drug addiction and shall give the applicant the opportunity to show that the drug addiction does not render the applicant incompetent to drive or is not disabl- ing to the extent that it would be unsafe for the applicant to drive; and (4) PennDOT has the authority to suspend the operating privileges of an individual receiving treatment in an approved methadone program provided that PennDOT affords the individual an opportunity for a hearing and determines that such a person is incompetent to operate a motor vehicle or is afflicted with mental or physical infirmities or disabilities making it unsafe for such person to operate a motor vehicle. The issues presented involve an unfortunate collision of impor- tant public policies. Highway safety is of paramount concern to Commonwealth officials. Our citizens must be protected at all times from unnecessary traffic safety hazards. At the same time, this Commonwealth has a serious drug abuse and narcotic addiction problem. As a matter of human compassion, government officials are enjoined to assist people to avoid drug abuse and to overcome narcotic addiction. It is also in the interest of the Commonwealth and its citizens to rehabilitate drug abusers and narcotic addicts who are presently a drain on society through their inability to func- tion and those who commit crimes to satisfy their habit and uncon- trollable addiction. We have considered these policies and goals very carefully in formulating this opinion. The Secretary of Penn DOT is required, under Section 604 (a) (5) of the Vehicle Code of April 29, 1959, P.L. 58, as amended, 75 P.S. §604(a) (5), to refuse a permit or license to an applicant: (:i) ff he is ... addicted to the nse of 1111rrntic dr11g.~. (!;} //'h e hos bee11 adj11dycd i11sa11eur a11 irliut. i111/Jecile, eµ ileµtic orfeebleminded, 111111' re8fored to co 111 µete11cy by )ltd 1cwl decree. or released/rum a hospitalfor the in- OPINIONS OF THE ATTORNEY GENERAL 3 sane, or feeblemindrd, upon certification by the superintendent or medical director th at such person is cum pet en t, nor then, 1wless the secretary is satisfied such person is competent to operate a motor vehicle or tracturwithsafetytopersonsandproperty. (7) If he is afflicted with, or sujjeringfmm, a ph11sical or mental disability or dis- ease. urfrom_a weakness urdisabi/ity i11 1•isiun or liearing 1chich, in the opinion of the secretary, un ll pre 1•e1d such person from e.re re ising reasonable and ordinary control m•er a motor vehicle or t ractur." The Secretary also has the discretion to suspend a person's operating privileges if the person is not competent or if it is unsafe for that person to operate a motor vehicle. This may be done in ac- cordance with Section 618 (a) (1) of The Vehicle Code, supra, 75 P.S. § 618 (a) (1), which states, in part, that operating privileges may be suspended whenever the Secretary finds upon sufficient evidence: "that such a person is incompetent to operate a motor vehi- cle or tractor, or is afflicted with mental or physical infir- mities or disabilities rendering it unsafe for such person to operate a motor vehicle or tractor upon the highways." (Emphasis supplied). The Secretary of PennDOT also has the discretion to suspend a person's operating privileges whenever the Secretary finds upon sufficient evidence: "that such a person is incompetent or unable to exercise reasonable and ordinary control over a vehicle .... " The Vehicle Code, supra, Section 618 (b)(5), 75 P.S. § 618(b)(5). Sections 618 (a) (1) and 618 (b) (5) have been construed by a series of lower court decisions to require the Commonwealth to establish "incompetency" by sufficient evidence. Invariably, mere illegal use and possession of narcotic drugs have been held insufficient to warrant suspension of a license. See Commonwealth v. Hillyer, 120 P.L.J. 219 (1972); Morath Appeal, 58 D. & C. 2d 432 (1972) (Use of marijuana not sufficient to prove incompetency); Commonwealth v. Weiner, 42 D. & C. 2d 164 (1967); Bishop Appeal, 11 D. & C. 2d 311 (1956)(Use of demerol not sufficient). See also Hancox License, 30 D. & C. 2d 686 (1963) and Newmaker License, 26 D. & C. 2d 779 (1961) on the analogous issue of alcohol use under the same statutes. 1 A person in a drug-free treatment program receives no narcotic from the program for his or her physical dependencies. Therefore, a person in a drug-free treati::1ent program cannot .be pres1:1med ad- dicted to the use of narcotics. Moreover, there is no evidence to 1. Section 616 of The Vehicle Code, 7~ P .. S. § 616, provide~ for revocation of operating privileges for one ye_ar 1:1pon convict10~ or plea of gmlty or nolo contendere to a series of offenses which mclude operatmg under the mfluence of narcotic drugs, unlawful possession or transportation of substances (drugs) controlled under the Controlled Substances Act. Revocation upon conviction or plea is automatic under this section. This opinion assumes that persons in drug-free or methadone treat- ment programs who seek to obtain or retain a license or permit and are the subject of this opinion, have not been convicted of an offense requiring revocation. 4 OPINIONS OF THE ATTORNEY GENERAL presume that a person in a drug-free treatment pro~ram would drive differently than that of the norm of the populat10n or would constitute a traffic safety hazard. On the basis of the foregoing discussion, we have con~luded that there is no basis whatsoever to refuse a license or permit or to su~­ pend the operating privileges of anyone merely because~ I?ers~n is m a drug-free treatment program, and such a practice, 1f 1t exists, must cease immediately. We have received information which indicates that the present policy of PennDOT is to refuse to issue a driver's license or permit to persons in an approved methadone treatment program and to su~­ pend the operating privileges of persons in those programs until such time as they are able to reestablish their "competency" to operate a motor vehicle. Data has been submitted which indicates that methadone is designed to rehabilitate heroin addicts, and that current polices of PennDOT effectively discourage some addicts from seeking rehabilitation offered by an approved methadone treatment program. There can be no question that a person in such a program who regularly uses or is dependent on methadone is addicted to the use of narcotic drugs. However, there remains a question of statutory in- terpretation as to whether, pursuant to Section 604 (a) (5) of The Vehicle Code, supra, 75 P.S. § 604 (a) (5), a driver's license or permit may be refused to a person in a methadone treatment program sole- ly on the ground that such person is addicted to a narcotic drug. As noted above, Section 604 (a) (5) requires denial of a license or permit on the ground that a person is addicted to narcotic drugs. That provision also requires in subsection (6) and (7) that a license or per- mit be refused on grounds of incompetency or disability. However, Section 618 of The Vehicle Code, the section describing cir- cumstances under which operating privileges are suspended, makes no provision for suspension merely on the ground of addic- tion to narcotic drugs. On the contrary, Section 618 requires the Secretary to show incompetency or physical or mental disability. There is no significant distinction between the refusal to issue a new license or permit to an applicant and the suspension of operating privileges for purposes of highway safety. It would appea_r that t~e obj~ctions of preventing highway accidents or reducmg the risk of highway accidents would require the same tests for new licenses and permits as well as continued use of operating privileges. 2 2. There is a.scintilla o.f a distinction in that i.t can be argued that new operators are !lot ex perienced drivers. hen.ce the req uirements must be more stringent for issuance than susp ension. This argum.ent, however. breaks down in view of the facl that new residents of Pennsylvania who are experienced drivers from their states of former residence are reg u1 red to meet the same written and medical tests as lotal ly mex pen enced dri vers !n order. to o.bta1n a Pennsylvania license and can be required to take an operator s exam1nat1on as well. OPINIONS OF THE ATTORNEY GENERAL 5 There is also, of course, the presumption of constitutionality of all legislation and the concomitant doctrine of statutory construction requiring interpretation of statutes so as to preserve their con- stitutionality. Such an interpretation is even more compelling in connection with subsection (a) (5) of Section 604 where there is no question that the prohibition against issuance of a license or permit to a narcotic addict or alcoholic bears a substantial relationship to the purpose of promoting highway safety. As we have discussed a~ove, the objections to subsection (a) (5) of Section 604 are that it smgles out applicants for licenses and permits and imposes upon them more restrictive imi:>ediments to licensing than present license or permit holders, all for no apparent safety purpose. On the basis of this analysis, there is a serious question whether the more restrictive condition of Section 604, which prohibits issuance if the applicant is addicted to narcotic drugs, can with- stand constitutional tests. Firstly, we have a classification - applicants and operators - and · difference in treatment of both classes - applicants can be denied a license for addiction to narcotic drugs but the Secretary must show incompetency or physical or mental disability to suspend. Secondly, as noted above, the difference in treatment is only marginally related to legitimate state purposes. Thirdly, in regulating operators' licenses and per- mits the state is regulating an essential aspect of the individual's daily existence. See Bell v. Burson, 402 U.S. 535 (1971). Finally, we question the need for subsection (a) (5) of Section 604 in light of sub- sections (a) (6) and (7) which clearly require refusal to issue a license if incompetency or physical or mental infirmity is present. Singling out narcotic addict10n and habitual drunkenness, as Section 604 (a) (5) does, smacks of punishment and moreover, punishment of a status, which individuals, occupying the status, are helpless to change. The Supreme Court of the United States has held that punishment, in the form of criminal sanctions, of the status of nar- cotic addiction, is cruel and unusual punishment in violation of the Eight and Fourteenth Amendments. Robinson v. California, 370 U.S. 660 (1962); cf. Powell v. Texas, 392 U.S. 514 (1968). In this light we read subsection (a) (5) of Section 604 as requiring the Secretary to refuse to issue a license or permit to an applicant if the Secretary knows or has reason to know that the applicant is a narcotic addict. As we have already indicated, the fact of any applicant's enrollment in a methadone treatment program gives the Secretary reason to believe the applicant is addicted to narcotic drugs. However, to assure that applicants for licenses and permits are not subjected to impermissibly different standards than present holders of licenses or permits, the Secretary must notify the appli- cant so denied of his or her right to a hearing on whether a license or permit should issue. Upon hearing, the Secretary will have the burden of proving narcotic addiction and the applicant will have to rebut the evidence of addiction or show that the addiction is such 6 OPINIONS OF THE ATTORNE Y GENERAL that the applicant is not incompetent and ~hat.ttie addic.tion.does not rise to the level of a physical or mental d!sab1lity makmg it unsafe for the applicant to operate a motor vehicle. By interpreting Section 604 (a) (5) to require refusal to issue a license or permit in the first instance when the Secretary ~nows .or has reason to know that the applicant suffe_rs fr?m .n?-rcot1c ?-dd1c- tion, due deference is given to the special s1gmf 1cance. m the statutory scheme of Section 604 (a) (5~. At the same time, ~y providing the applicant with an opportui:1ty to show that the addic- tion is not disabling, substantially eqmvalent s~andards are ob- tained for both applicants and license and permit holders. As to the question of suspending the operating privileges of an in- dividual in an approved methadone treatme~t program,_ PennDQT must afford notice of a hearing and a hearmg on .the 1ss~e of ~n­ competency prior to suspension. It should be noted, m keernng with the decision m the series of cases, supra, that Section 618 (a) (l)or (b) (5) of The Vehicle Code require a finding that more than some, or irregular and infrequent drug use is required to support a finding that a person is incompetent, afflicted with a mental or physical in- firmity or disability, or unable to exercise reasonable and ordinary control over a vehicle. That there is sufficient evidence to find that a person is not compe- tent, or unsafe, or unable to operate or control a motor vehicle is the only basis for the suspension of that person's operating privileges, and the fact that the person is in a methadone treatment program, by itself is never sufficient evidence to warrant suspension of a license or permit. It should be crystal clear that Section 618 (a) (1) and (b) (5) of The Vehicle Code, 75 P.S. § 618 (a) (1) and (b) (5), may not be interpreted in such a manner as ipso facto to deem persons in such approved methadone treatment programs as incompetent, or afflicted, or unsafe or unable as delineated by statute. Finally, we suggest that there be a legislative reexamination of this aspect of the law. Literature that we have reviewed indicates that there is no difference between the driving records of people on methadone and the ordinary driver. There is no scientific evidence to indicate that driving by a methadone patient is any more dangerous than driving in a drug-free state. Moreover, there is nothing to indicate that a person using methadone would be more likely to have accidents than a control group of average citizens.a Acc<?r~ing~y, overly broad prohibitions against methadone patients rece1vmg licenses or permits do not appear warranted and may be counter-productive. 3. See the report by Mr. Arthur Moffett. Deputy Chief, Section on Drug and Alcohol Abuse, Pennsylvania Medical College. This is a unit. funded by the Com- monw.ealth. to pr<!vide information on drug abuse. S~e also. the study of Dunlap Associates of Danen, Connecticut for the National Highway Safety Administra- tion. Both reports support the positions indicated above with respect to drugs and driving. OPINIONS OF THE ATTORNEY GENERAL 7 In accordance with foregoing opinion, you are advised: (1) an in- dividual in a drug-free treatment program can obtain a driver's license or permit and PennDOT does not have the authority to refuse a driver's license or permit solely on the ground that such an individual is in a drug-free treatment program; (2) PennDOT does not have the authority to suspend the operating privileges of an in- dividual solely on the ground that he or she is receiving treatment in a drug-free program; (3) PennDOT has the authority, and is re- quired, to refuse a license or permit to an individual in an approved methadone program provided the individual is, in fact, addicted to the use of narcotic drugs. The Secretary must afford the applicant an opportunity to have a hearing on the issue of drug addict10n and the applicant shall be given the opportunity to show that the drug addict10n does not render the applicant incompetent to drive or is not disabling to the extent that it would be unsafe for the applicant to drive. (4) PennDOT has the authority to suspend the operating privileges of an individual receiving treatment in an approved methadone program provided that PennDOT affords the individual an opportunity for a hearing and determines that such a person is incompetent to operate a motor vehicle, or is afflicted with mental or physical infirmities or disabilities making it unsafe for such per- son to operate a motor vehicle. You are also advised to promulgate the necessary and ap- propriate regulations in accordance with this opinion. Sincerely yours, Edward J. Morris Deputy Attorney General Israel Packel Attorney General