ILLINOIS, Petitioner v. Milton D. BATCHELDER.

An Illinois statute, Ill.Rev.Stat., ch. 951/2, ¶ 11-501.1, provides that any person who drives an automobile in that state consents to take a breath-analysis test when requested to do so by an officer as incident to an arrest for driving while intoxicated.1 The statute also prescribes the manner in which the test is to be administered and provides a nine-point list of matters of which the arresting officer is to inform the arrestee, including the right to refuse to submit to a breath analysis and the fact that such a refusal may be admitted in evidence against him "in any hearing concerning the suspension, revocation or denial of his license or permit. . . ." Id., at (4). Finally relevant for our purposes is subsection (d) of ¶ 11-501.1, which provides in pertinent part:

"The arresting officer shall file with the Clerk of the Circuit Court for the county in which the arrest was made, a sworn statement naming the person refusing to take and complete the test requested under the provisions of this Section. . . . Such sworn statement shall include a statement that the arresting officer had reasonable cause to believe the person was driving the motor vehicle within this State while under the influence of intoxicating liquor . . . .

The Clerk shall thereupon notify such person in writing that his privilege to operate a motor vehicle will be suspended unless, within 28 days from the date of mailing of the notice, he shall request in writing a hearing thereon. . . .

Such hearing shall proceed in the Court in the same manner as other civil proceedings, except that the scope of such proceedings shall cover only the issues of whether the person was placed under arrest for [driving while intoxicated], whether the arresting officer had reasonable grounds to believe that such person was driving while under the influence of intoxicating liquor, whether the person was informed orally and in writing as provided in paragraph (a) that his privilege to operate a motor vehicle would be suspended if he refused to submit to and complete the test and whether, after being so advised, he refused to submit and complete the test upon request of the officer."2

Respondent Milton D. Batchelder was stopped while driving his automobile by an officer of the Peoria Illinois Police Department after the officer observed respondent driving in a reckless and erratic manner. After completing the stop, the officer approached respondent, determined that he was intoxicated, and arrested him on the charge of driving under the influence of intoxicating liquor. The officer thereafter requested that respondent take a breath-analysis test. Respondent refused. The officer then executed and filed a sworn statement that read in pertinent part:

"I hereby certify that I have placed the above named person under arrest, and that I had at the time of arrest reasonable grounds to believe that said person was driving a motor vehicle in this State while under the influence of intoxicating liquor in that: Traveling too fast in alley with pedestrians around, crossed Walnut w/o slowing, maintained speed behind Slipper Club then parked abruptly behind 519 S.W. Adams. I further certify that said person did willfully refuse to submit to the breath analyses when requested to do so in accordance with Section 11-501.1 of the Illinois Vehicle Code, after being informed of the possible consequences of his or her refusal." Pet. for Cert. 5-6.

To avoid having his license automatically suspended, respondent exercised his statutory right to request a hearing pursuant to ¶ 11-501.1(e).

Prior to taking evidence, the judge presiding at the hearing asked if there were any motions. Respondent's counsel moved to dismiss the officer's affidavit, quoted above, on the ground that it did not state any facts showing that respondent was under the influence of intoxicating liquor at the time of his arrest. The judge found that the affidavit did not comply with ¶ 11-501.1(d) because it failed to state facts showing that respondent was under the influence of intoxicating liquor at the time of his arrest. An order was entered denying the State's request for suspension of respondent's license.

The State appealed and the Appellate Court of Illinois, Third Judicial District agreed with the trial court that the facts stated in the affidavit were insufficient to support the conclusion that respondent was intoxicated at the time he was arrested. The Appellate Court, however, held that the affidavit literally complied with the requirements of ¶ 11-501.1(d); that subsection requires only that the officer's affidavit state that he "had reasonable cause to believe the person was driving . . . while under the influence of intoxicating liquor." The affidavit nonetheless was deemed "insufficient . . . due to its failure to comport with the constitution, specifically, the Fourth and Fourteenth Amendments thereof." 107 Ill.App.3d 81, 83, 62 Ill.Dec. 837, 839, 437 N.E.2d 364, 366 (1982).

Relying on our decision in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the Appellate Court opined that "[t]he Fourth and Fourteenth Amendments to the United States Constitution pertain to this situation because stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of those amendments. . . ." Id., at 84, 62 Ill.Dec., at 840, 437 N.E.2d, at 367. The court also relied on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), for the proposition that "[t]he permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Ibid. Applying this standard here, the Appellate Court held that ¶ 11-501.1(d) is constitutional only if it requires an arresting officer to set out, in his affidavit prepared pursuant to ¶ 11-501.1(d), "the underlying circumstances which provided him with a reasonable belief that the arrested person was driving under the influence of intoxicating liquor." Ibid.

* In its application of the Federal Constitution to the Illinois implied consent statute, the Appellate Court inexplicably failed to look to how this Court undertook a similar task in Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979). In Mackey, we held that the Massachusetts statute mandating suspension of a driver's license because of his refusal to take a breath-analysis test upon arrest for driving under the influence of intoxicating liquor did not violate the Due Process Clause of the Fourteenth Amendment. The procedures provided for in the Illinois implied consent statute are, if anything, even more solicitous of Due Process values than those we upheld in Mackey.

We noted in Mackey "that suspension of a driver's license for statutorily defined cause implicates a protectible property interest." Id., at 10, 99 S.Ct., at 2616-2617. There, as here, the only question presented was "what process is due to protect against an erroneous deprivation of that interest." Ibid.3 We held that this question should be resolved by considering the following three factors:

" 'First, the private interest that will be affected by the offic al action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.' " Ibid, quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

The analysis utilized in Mackey is equally applicable to and dispositive of this case.

First, the driver's interest in the continued possession and use of his license was recognized in Mackey. However, in undertaking the first step of the Eldridge balancing process in Mackey, our concern centered on "[t]he duration of any potentially wrongful deprivation of a property interest," 443 U.S., at 12, 99 S.Ct., at 2618. Under the Massachusetts statute, the license of a driver who refused to submit to a breath-analysis test was suspended pending the outcome of a hearing that he was entitled to demand. There is no concern or risk under the Illinois statute that a driver will be deprived of his license prior to a hearing. Paragraph 11-501.1(d) clearly grants a driver the right to have a hearing before his license is suspended. Thus, respondent can seek no solace in the first step of the Eldridge analysis.

"[T]he second stage of the Eldridge inquiry requires consideration of the likelihood of an erroneous deprivation of the private interest involved as a consequence of the procedures used." Mackey v. Montrym, supra, 443 U.S., at 13, 99 S.Ct., at 2618. In Mackey, we noted "that 'something less than an evidentiary hearing is sufficient prior to adverse administrative action.' " Id., quoting Dixon v. Love, 431 U.S. 105, 113, 97 S.Ct. 1723, 1727, 52 L.Ed.2d 172 (1977). Clearly, then, the fact that ¶ 11-501.1(d) provides for a predeprivation hearing abundantly weights this second part of the Eldridge analysis in favor of the constitutionality of the Illinois implied consent scheme.

"The final leg of the Eldridge balancing test requires us to identify the governmental function involved; also, to weigh in the balance the state interests served by the summary procedures used, as well as the administrative and fiscal burdens, if any, that would result from the substitute procedures sought." Mackey v. Montrym, supra, 443 U.S., at 17, 99 S.Ct., at 2620. The interest of the states in depriving the drunk driver of permission to continue operating an automobile is particularly strong. We recently commented on "the carnage caused by drunk drivers" in South Dakota v. Neville, --- U.S. ----, ----, 103 S.Ct. 916, 920, 74 L.Ed.2d 748 (1983). See also Mackey v. Montrym, supra, 443 U.S., at 17-18, 99 S.Ct., at 2620-2621; Perez v. Campbell, 402 U.S. 637, 657 and 672, 91 S.Ct. 1704, 1715 and 1722, 29 L.Ed.2d 233 (1971) (BLACKMUN, J., concurring); Tate v. Short, 401 U.S. 395, 401, 91 S.Ct. 668, 672, 28 L.Ed.2d 130 (1971) (BLACKMUN, J., concurring); Breithaupt v. Abram, 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d 448 (1957). Indeed, it is the effect of the Appellate Court's opinion on the Illinois effort to halt this "carnage" that has prompted our summary action in this case. That interest is substantially served by the procedures outlined in ¶ 11-501.1(d). Again, the fact that we upheld a more summary procedure in Mackey refutes the suggestion that the Illinois scheme runs afoul of the Eldridge test.

Accordingly, we conclude that the Constitution does not require arresting officers in Illinois, in enforcing that state's implied consent statute, to recite in an affidavit the specific and concrete evidentiary matters constituting "the underlying circumstances which provided him with a reasonable belief that the arrested person was driving under the influence of into icating liquor." 107 Ill.App., at 84, 62 Ill.Dec. at 840, 437 N.E.2d, at 367. The driver's right to a hearing before he may be deprived of his license for failing to submit to a breath-analysis test accords him all, and probably more, of the process that the Federal Constitution assures. The petition for certiorari is granted, the judgment of the Appellate Court of Illinois, Third Judicial District, is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.

This case comes to us from an intermediate Illinois appellate Court. It is a case that the Illinois Supreme Court declined to review. Its practical consequences concern the amount of detail that Illinois police officers in the Third Appellate District must include in an affidavit supporting a petition to suspend a driver's license. In final analysis the only question presented relates to how an Illinois statute is to be implemented in one part of the state. I suspect that the Illinois Supreme Court may have decided not to take this case because it preferred to address the question presented in a case in which both parties would be adequately represented.

The only paper filed in behalf of the losing party in this Court reads, in full, as follows:

"Court Clerk;

"In regard to your letter of 3-31-83 pertaining to the above captioned matter.

"I have a heart problem and am unemployed.

"I do not have the funds to hire an attorney.

"Is it possible for the court to appoint me counsel or for the court to rule on the record that is on appeal?

"I am unlearned at law and have had little formal education.

"Unless the court can give me some help I will not be able to pursue this matter.

"This letter written by;

302 Pontiac Rd.

Marquette Hgts., Ill.

"For Milton D. Batchelder

/s/ Milton Batchelder"

If a case is important enough to merit a decision on the merits by this Court, I believe it also should be important enough to justify the appointment of counsel to represent the party defending the judgment of the court below. I respectfully dissent from the Court's summary disposition.