Taking Grandpa’s Keys

Addressing The Problems Associated with Testing and Licensing  of Older Drivers

Keith A. Howell

 

Introduction

Late in the afternoon of September 6, 1999, eighty year-old Evangelo Sampson of Peabody, Massachusetts was driving his Cadillac when the thump against his windshield alerted him to a problem.[1]  He had just killed a thirty-nine year-old father and his four year-old daughter when he drove right into them as they crossed an intersection.[2] 

Such incidents are not isolated.  Consider the event that led Winslow, Maine police to say that it was a “miracle” that no one was killed.  The ordeal began when Marie Wyman finished celebrating her eighty-seventh birthday party at the Lobster Trap and Steakhouse and backed out of the handicapped-parking spot and proceeded to plow her Buick right through the crowded dining room — not a Happy Birthday for Ms. Wyman. [3]  Apparently demolishing the restaurant one time was not enough for Ms. Wyman who then put her car in reverse and proceeded to demolish whatever might have escaped her swath of destruction the first time.[4]

Accidents like those involving Mr. Sampson and Ms. Wyman are, unfortunately, only too common and highway-safety experts warn that their frequency will increase over the next twenty years.  By then the number of people killed in crashes involving older drivers is expected to surpass the number of victims killed by drunk drivers.[5]  According to a new analysis of government data from the National Highway Traffic Safety Administration (NHTSA), the number of older Americans involved in fatal crashes has jumped by thirty-three percent over the past decade.[6]  Statistics show that currently there are approximately eight million licensed drivers over the age of seventy-five.[7] That number will balloon by an estimated fifty percent between now and 2020 and two-thirds by 2030.[8]  “For the decade from 2010 to 2020, the overall population increase is expected to be 8.2 percent, while the over sixty-five year old population is expected to grow by 35.1 percent!”[9]  Accordingly, the Department of Transportation (DOT) has placed the safety and health of older drivers on high priority and is acting now to take steps that can help assure that programs and guidelines will be fully in place as the “Baby Boom” generation begins to reach retirement age.[10] 

Part I of this article will examine the current and future problem recognized by the experts and the general population concerning the alarming increase in fatalities associated with older drivers.  This examination will address the importance of driving to those aging citizens as well as the impact of forced removal of driving privileges upon their emotional well-being.  Certain problems with the lack of adequate public transportation will be explored leading into a discussion of constitutional issues associated with driver’s license revocation and reexamination laws. 

Part II will canvass the scope of governmental involvement in proposing and implementing solutions.  The federal government’s involvement will be explored through the Uniform Vehicle Code and the Americans With Disabilities Act and their effect upon older drivers, automobile modifications and highway modifications.  The state and local government’s involvement will be looked at through their individual testing and licensing procedures, certain age-mandated license revocation laws, physician involvement and a few of the more prominent proposals under consideration.  Ultimately, the goal of this article is to paint with a broad stroke and canvass a widespread complex and important issue.  There are a number of  solutions being proposed with merits and deficiencies.  This article presents many of the solutions with a taste of history, precedent and practical impact to guide the reader towards a more informed understanding of a problem that is likely to only worsen rather than improve any time soon.

I.                   The Problem

Most everyone has heard the truism that says elderly drivers have fewer accidents compared with younger drivers.[11]  But is that really true or erroneous?  Actually, it is both.  The statistics show that drivers aged fifty-five and older constitute twenty-five percent of drivers on the road but are involved in only eighteen percent of all automobile accidents.[12]  However, older drivers generally drive fewer miles each year than younger drivers which makes that statement only a truism when comparing older drivers with those younger than thirty-five.[13] In fact, the per-mile crash rate for drivers over the age of eighty-five is nearly as high as the rate for teenagers and automobile crashes are the leading cause of accidental death for drivers from the ages of sixty-five to seventy-four.[14]  Even worse, older drivers tend to incur greater injuries than younger drivers involved in similar accidents.[15]  The NHTSA  issued a report to Congress in 1993 declaring that after the age of sixty, drivers and passengers are increasingly likely to die as a result of crash injuries even though the number of crashes per driver generally declines with age.[16]

            What accounts for the dramatic rise in the per-mile crash rate for older drivers?  As drivers age, their eyesight and hearing worsens and their information processing slows.[17]  Carmella M. Strano of Moss Rehabilitation Hospital observes that older drivers show evidence of  “poor [judgment] in making a left-hand turn, drifting within the traffic lane, and an inability to change behavior in response to an unexpected or rapidly changing situation.”[18]  Crashes involving older drivers more often than not result from failures to act, such as failing to yield to traffic or signals, rather than acts of recklessness, such as speeding or drunk driving.[19]  It should be noted that the deterioration in the driving ability of older driver, may also exacerbated by medical conditions or strong medications that slow their reflexes and response times.[20]

            As the baby boomer population ages, the number of older drivers will be exploding.  Correspondingly, a dramatic jump in fatalities and injuries related to car crashes involving older drivers is expected.[21]  Driven by concern for the general safety of everyone right now, the federal government and the states are in a quandary trying to formulate the best way to determine who the potentially dangerous drivers are and how best to remedy the situation. 

A.     Isolation created by limited mobility

The importance of driving to the elderly is many times not understood.  Sometimes just the knowledge that they can, if they want to, get in their car and drive somewhere brings some internal sense of independence and importance.[22]  Dr. David Shinar of Ben Gurion University of the Negev emphasizes the importance of driving to older citizens “who often stop visiting, shopping, and even going to church if they cannot drive.”[23]  For example, Maureen Aber of Verona, Pennsylvania, while in her eighties, had her license revoked after failing a reexamination brought on by neighbor complaints about her poor driving and parking.[24]  Crushed over losing her license, Ms. Aber was forced to move into a nursing home where she soon died.[25]  The challenge to the licensing agencies is to discover the best solution for restricting impaired older drivers while preserving as much mobility as possible for those same individuals.[26]

B.     Melancholy created by dependency on others

A license to drive is not just a means to mobility for the elderly, it is an all-important symbol of their independence.  As Joan E. Rigdon of the Wall Street Journal so aptly describes, it is perceived as “the last stop before a nursing home.”[27]  She reports of a sixty-eight year old who had this to say within a few months of losing his ability of drive due to complications related to diabetes: “I’m so depressed right now it’s pathetic . . . I can’t go any place.  I can’t see anything or do anything.[28]  

Public transportation is a commonly mentioned substitute, but is it satisfactory?  Over fifty percent of older drivers who have had their licenses revoked feel that public transportation is not adequate and the striking lack of public transportation in many suburban and rural areas forces older people to believe that daily driving is a necessity. [29]  Many elderly housing complexes are built close to highways and local governmental cooperation to run public transportation by those complexes might encourage older drivers to take a bus instead.[30]

C.     Constitutionality

Most people seem to understand that driving is not a “right” but a “privilege” granted and regulated by the State.  What is not quite so well understood is that, once the license is issued, the citizen enjoys a constitutionally protected property right in that license that restrains the State’s ability to take it back.[31]  This is but an application of the general proposition that the constitution limits the individual state’s authority to stop an “entitlement,” regardless of whether the “entitlement” is designated as a “right” or a “privilege.”[32] 

1.      Due Process

The rationale for recognizing a property interest in a driver’s license is based on Fourteenth Amendment Due Process protection.[33] This liberty interest is further rooted in the practical reality that once a license is issued, driving quite likely becomes essential to that individual’s pursuit of a livelihood.[34]  It seems well settled as appropriate Due Process that the states must afford the licensed driver reasonable notice prior to the revocation.[35]   Further, the state must give the licensed driver an opportunity for a meaningful hearing on the issue.[36]  Many families find themselves in crisis situations involving older loved ones exhibiting deteriorating driving ability.  In these situations, the courts has recognized that fact by allowing for immediate revocation of driving privileges in crisis situations as long as a post-revocation hearing is immediately scheduled.[37]  At this time, no case has come before the Supreme Court to definitively mark a constitutional distinction between the state’s power to revoke driver’s licenses and the state’s authority to reject an older driver’s application for license renewal.[38]

2.      Equal Protection

A violation of the equal protection of the law afforded to every citizen under the Fourteenth Amendment is the most commonly raised argument in opposition to licensing programs that differentiate older drivers from younger drivers.[39]  The Fourteenth Amendment says, in pertinent part, that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”[40]  Modern constitutional thought argues that the “inherent principle of equal protection is one that mandates equality of respect for individuals.”[41]  Kenneth Karst calls that the “Equal Citizenship Principle,” which he defines as the presumptive right of every citizen to be treated as a respected, responsible and participating member of society.[42]

Historically, age classifications have invoked only a rational basis standard of constitutional review rather than the strict scrutiny standard associated with such suspect classifications as race and sex.[43]  The Court’s rationale is that although it is true that older Americans experience some degree of discrimination, they have not experienced a “history of purposeful unequal treatment.”[44]  Laws that might require, for example, drivers over the age of sixty-five to submit to stricter or more frequent renewal examinations cannot be said to discriminate because it does not discriminate against all older Americans as a “discrete and insular” group.[45]  Rather, it “marks a stage that each of us will reach if we live out our normal span.”[46] 

In sum, the dramatic natural effects of aging coupled with the rising number of older drivers are a serious problem that is worsening.  The common response is to deprive older drivers of the license to drive, thus invoking important constitutional considerations.  Because of these practical and constitutional issues, solutions are needed.

II.                The Solutions

A.     Federal Government

Federal involvement in this issue is somewhat less intrusive as regulations appear in the form of suggestions and guidelines rather than law.  For example, these regulations are in the form of NHTSA studies and guidelines set forth in 23 U.S.C.A. ch. 4 (Uniform Guidelines).[47]  The Uniform Guidelines set suggested standards for the individual states regarding highway design, vehicle design, and licensing procedures.[48] The driver licensing guidelines are so general as to be essentially ineffective in truly helping to resolve the issue of older drivers of diminished faculties.[49]  The Transportation Equity Act (TEA-21) for the twenty-first century was enacted in 1998.[50]  TEA-21 authorizes the Federal surface transportation programs for highways, highway safety, and transit for the 6-year period 1998-2003.[51] The guidelines set forth in the Uniform Guidelines as amended by the TEA-21 merely state that an initial examination demonstrating ability to drive is required along with a visual acuity exam.[52]  However, the uniform guidelines set out in the Uniform Guidelines do recommend that there be “[a] system providing for medical evaluation of persons whom the driver licensing agency has reason to believe have mental or physical conditions which might impair their driving ability.”[53]  Of additional benefit to older drivers is the Uniform Guidelines on roadway safety.[54]  In this section, federal funds are made available for each State to develop and implement a comprehensive roadway safety program directed toward reducing the number and severity of traffic crashes.[55]  While the Uniform Guidelines and the TEA-21 are limited to issues involving highways, automobiles and drivers, the Americans with Disabilities Act (ADA) gives older drivers some additional options.[56]

July 26, 1990 saw the ADA signed into law.[57]  The stated purpose of the legislation was to make American society more accessible to people with disabilities.[58]  The ADA is divided into five titles.  Title I requires employers to provide reasonable accommodations to protect the rights of disabled individuals in all aspects of employment.[59]  Title II prevents all state and local governments from denying services, including public transportation accessibility, to disabled individuals.[60]  Title III requires all new construction and modifications be accessible to disabled individuals.[61]  Title IV requires telecommunication companies to offer telephone relay services to those who use telecommunication devices for the deaf.[62]  Title V is the general and miscellaneous provision that includes a provision prohibiting retaliation against disable individuals who assert their rights under the ADA.[63] 

            Of primary interest to older citizens is how the ADA defines “disabled.”  An individual is “disabled” if he or she (1) has a physical or mental impairment that substantially limits one or more of his or her major life activities, or (2) has a record of such an impairment, or (3) is regarded as having such an impairment.  As people age, their information processing skills decline as well as visual acuity and other sensory and motor functions, which clearly satisfies the ADA’s definition of “disabled.”[64]  The language of the ADA is so broad that it generally encompasses nearly everyone over the age of fifty to some varying degree.  Correspondingly, groups such as the AARP and the NHTSA are exploring highway design modifications that could be pursued by the states to anticipate and satisfy the needs of older drivers.[65]

1.      Automobile modifications

Federal car-safety regulations are geared to protect five-foot-ten-inch, 170-pound men involved in thirty miles-an-hour head-on crashes.[66]  Unfortunately, most older drivers are not that big and they typically suffer side-impact collisions.[67]  Since 1997, federal side-impact standards require all new cars to be designed to reduce side-impact injuries, which is, in theory, a good move except that the stiff padding needed to meet the standards can in some cases actually harms older drivers who suffer increasingly brittle bones.[68] 

Safety belts contribute to the safety of older drivers just as they do with the rest of the driving populace, however the contribution is negligible.[69]  Teens involved in fatal accidents are four times more likely to survive if they wear seat belts but drivers over sixty-five are only 1.5 times as likely to survive.[70]  In fact, the greatest contribution to safety that auto manufacturers could actually make that would save lives is to manufacture bigger automobiles.  The smaller the car, the greater the chance of serious injury or fatality when involved in a crash.[71] 

Air bags can help save lives, but are a somewhat risky option.[72] About forty percent of air bag deployments result in at least one occupant being injured and in the case of older drivers whose physical strength and stamina are failing.[73]  Dr. Brian deGusman of Saint Francis Hospital and Medical Center reports of an eighty-four year-old man who suffered severe facial bruising and a serious tearing of the aorta as a result of an air bag deployment after accidentally striking his garage wall head-on.[74]  After surgery to repair the aorta, the man died of complications due to kidney and lung failure.[75]  However, automobile modifications are not the only subject of federal regulations — modifications to highways and roadway funds are subject to certain federal regulations. 

2.      Highway design modifications

Many highway design modifications are relatively inexpensive considering the increased safety value.  For example, older drivers with failing eyesight would benefit from bigger and brighter traffic signs as well as improved lighting and pavement markings.[76]  Changes such as these would improve the older driver’s ability to visually perceive road conditions and would improve their reaction time because that perception/reaction time would be extended by earlier and clearer sight perception.[77]  Such modification expenditures would, of course, be federally matched if expended in compliance with the ADA.[78]  Highway modifications are clearly the most reasonable and relatively inexpensive solution with the most far-reaching impact on safety.

B.     State and Local Governments

1.      Testing and Licensing Procedures

All fifty states and the District of Columbia have varied individual testing and licensing procedures.  The vast majority of the states maintain extremely general requirements while a few specifically address licensing and renewal procedures in regards to older drivers.[79]  For example, California currently requires drivers over seventy years-old to retest solely after they are involved in two or more crashes in one year.[80]  Kansas issues drivers licenses for those over twenty-one that only require the driver to undergo the renewal process every six years — unless that driver is over sixty-five.[81]  In that case, the license must be renewed every four years.[82]  In Indiana, one of the conditions to be met by an applicant for a driver’s license is that he is between sixteen and 180 years old![83]  Rhode Island limits the duration of an issued license to only two years if the driver is seventy or older.[84] Colorado allows license renewal by mail but only if the driver is under the age of sixty-six.[85]  Leading the other states is Illinois where all applicants seventy-five years and older are required to demonstrate actual ability to “exercise ordinary and reasonable control of the operation of a motor vehicle.”[86] Astoundingly, Massachusetts is going in the opposite direction starting in May 2000.  At that time, licensed drivers will automatically have their licenses renewed every five years.[87]

Visual exams are central to predicting high-risk drivers but are they enough?  Based on federal guidelines, all states require at least some sort of visual exam before issuing initial driver’s licenses.[88]  The Journal of the American Geriatrics Society reports that some studies have pinpointed certain tests that can actually predict those older drivers at highest risk of being involved in a car accident.[89]  The Yale University School of Medicine study showed that eighty-seven percent of older drivers who exhibited the three key risk factors of (1) visual acuity less than 20/40, (2) limited field-of-vision, and (3) limited neck-rotation ability, had reported a previous car accident or infraction in the previous five years.[90]  Contrast this with forty-five percent of those drivers who exhibited only one of the three risk factors, and only twenty-one percent of those exhibiting no risk factors.[91]

Most states do not require physicians to report to licensing agencies psychomotor, visual, and cognitive deficiencies that may affect driving.[92]  It is true that respect for confidentiality may keep some physicians from reporting such deficiencies when there are no clear medical or legal guidelines.[93]   However, some states, such as Pennsylvania, have laws requiring or empowering physicians to report “disabilities that may affect driving ability.”[94]  As well, Oregon suspends the licenses of stroke victims and requires them to be pass a reexamination before renewal.[95] Required physician reporting would at least afford an opportunity for the state to intervene before an accident ever happens.  The benefit to society surely outweighs the confidentiality issue.

2.      Age-Mandated License Revocation

No state currently mandates driver’s license revocation upon reaching a certain age.  However, many states will increase the frequency at which drivers must be reexamined once a certain age is reached.[96]  Most states, though, are quite lax in their reexamination procedures — allowing renewal by mail or requiring little more than a brief “static visual acuity test” before issuing a renewal.[97]  Illinois stands out from the rest by requiring every driver over the age of seventy-five to pass a road test and a complete vision test to renew a driver’s license.[98]  Who could dispute the benefits of the Illinois law?  Verification of one’s ability to drive protects the driver from himself and protects society overall.

It is likely that the primary reason why no state has implemented an age-mandated license revocation is the bureaucratic nightmare it would create because of the due process requirements of the constitution.[99]  Even if the law was not declared per se unconstitutional, in such a state, everyone who reached the mandatory age would apparently be due an immediate hearing on the issue.[100]  Pragmatically, this would prevent an administrative and economic nightmare.  The more common solution along these lines has been restricted licensing, usually in the form of daylight driving-only licenses.[101]  Some experts state that such restricted licenses have not been terribly successful in lowering the injury and fatality rates among older drivers.[102]  This is evidenced by the fact that  seventy-nine percent of fatal accidents involving older drivers occur during the daytime.[103]  However, even restricted licenses have their share of critics, prime among them being AARP.  Glenn Koocher, an AARP spokesman says “[i]f it’s age-based, it’s discriminatory . . . we support as an alternative applying the same standards to all drivers, based not on age but on physical merit.”[104] 

                        3.  Solutions

There are some solutions already in place.  In 1979, AARP began offering AARP’s 55 Alive Mature Driving Program.[105]  This driver’s education course specifically designed for those drivers aged fifty and older.[106]  Their stated purpose in offering the course is to help older drivers improve skills, and avoid accidents and traffic violations.[107]  The two-day course helps drivers refine existing skills and develop defensive driving techniques.[108]  However, for all the benefit that a program like this offers, it is still strictly voluntary and only attended by a mere fraction of the total number of older drivers on the road.

Some creative thinkers are offering up solutions that would be implemented by private-sector arrangements.  Consider the following proposal from Donn W. Maryott of the New York State Department of Motor Vehicles.[109]  His plan would encourage senior centers to organize van or automobile transportation; shopping malls to provide shuttle buses for seniors; churches to arrange car pools for seniors wishing to attend services; and even community co-ops to arrange for “no-fee” or “low-fee” transportation that would respond to telephone requests from seniors.[110]  The practical effect of such a solution carries with it the reward of enhancing the community identity and, perhaps, building new and exciting relationships for those elderly who might otherwise feel alone and abandoned.

However, since the privilege to drive is a recognized governmental entitlement, the vast majority of proposals involve governmental action. California currently has a bill under consideration that would make it tougher for drivers seventy-five and older to renew their license.  The bill, known as the “Brandi Jo” bill, would require such drivers to take both written and road tests with increasing frequency as they age to such a point that by age ninety they would be undergoing annual testing.[111]  The proposal is a good step but the circumstances driving the bill give it the appearance of a “knee jerk” reaction to an isolated incident.  Unfortunately, many of these sort of bills fall by the wayside once the public has “forgotten” the incident that inspired it in the first place.

Maryland has begun a project being called “the most comprehensive study ever of older drivers.”[112]  The project is a combined effort involving more than twenty state agencies and is aimed at developing a model program that could be duplicated around the country.[113]  The most important aim of the project is to develop a comprehensive driving test that accurately measures the vision, alertness, memory and reflexes of older drivers.[114]

Other states have offered family-focused solutions.  For example, Missouri has passed a law to help families with the sometimes emotionally shattering occasion in which they must confront an older family member and take away his or her keys.[115]  The law allows family members, law-enforcement officers and health-care providers to confidentially report any driver believed to be incompetent or unqualified to retain his or her driver’s license.[116]  The confidentiality provision is the essential merit of this law because it allows family members to report problems without having to confront the driver.[117]  Further, the law provides the family members with immunity from lawsuits if their report was filed in good faith.[118]

 

Conclusion

Older drivers are in need of special consideration of their unique needs to protect them and others from harm.  Study after study has shown that older drivers are second only to teenagers in traffic fatalities and this truth has prompted many concerned efforts to help.  The federal government has provided many helpful guidelines and predicated federal funds upon state cooperation.  The individual states have implemented various and different programs and many are considering dramatically changing existing laws to react to this growing problem.  However, every change is confronted by hostile critics who challenge everything from the intent of the lawmakers to the constitutionality of the law. 

The common ground that draws every family, lobby group and governmental agency together, though, is the desire to save lives.  Nonetheless, precious lives are out there in desperate need of help and many of them are unsure how to ask or unable to recognize the dangerous effects of their own frailty.  It is truly an obligation of this generation of lawmakers and concerned citizens to honor their elders by preserving their health and safety while still maintaining their dignity.


[1] Mark Mueller, Rise in Auto Deaths Raises Questions of Elders’ Abilities; States Try to Restrict Driving of Some Seniors, B. Herald, Sept. 19, 1999.

 

[2] Id.

 

[3] Tammerlin Drummond, On the Road Too Long More Seniors Are Getting Into Accidents, Prompting States Like California to Consider Tougher Licensing, Time, Aug. 23, 1999, at 46.

 

[4] Mueller, supra note 1.

 

[5] Drummond, supra note 3.

 

[6] Older Drivers’ Fatal Crashes Rise 33 Percent in Decade, Grand Rapids Press, Oct. 1, 1999, at A6.  Time Magazine reports that fatal crashes involving drivers seventy years and older has risen forty-two% since 1987.  Drummond, supra note 3.

 

[7] Joan E. Rigdon, Car Trouble:  Older Drivers Pose Growing Risk on Roads As Their Numbers Rise They Crash More Than Many, Yet Taking Away Wheels Leads to Isolation, Anger, Wall St. J., Oct. 29, 1993, at A1.

 

[8] The term “older drivers” in this instance and throughout this article refers generally to those individuals 55 years and older unless specified otherwise.  This usage by the author is consistent with the American Association of Retired Persons (AARP) understanding and is not consistent with the National Highway Traffic Safety Administration (NHTSA) which defines “older” as being 65 and above and “younger” being ages 15 through 24.  See generally AARP Webplace (visited Oct. 23, 1999) <http://www.aarp.org>, NHTSA Website (visitied Oct. 23, 1999) <http://www.nhtsa.dot.gov>.  See also National Agenda for the Transportation Needs of an Aging Society (Apr. 1, 1999) <http://www.nhtsa.dot.gov/people/injury/olddrive/nataggen.html> [hereinafter National Agenda].

Licensing Older Drivers — Part I, Road Mgmt. Engineering J. (March 1, 1997) <http://www.usroads.com/journals/rej/9703/re970302.htm> [hereinafter Licensing — Part I].  Consider too that the American Automobile Association (AAA) has determined that by next year (2000), one-third of every driver in the United States will be over 55.  Vasiliki L. Tripodis, Licensing Policies for Older Drivers:  Balancing Public Safety with Individual Mobility, 38 B.C. L. Rev. 1051,  1055 (Sept. 1997).

 

[9] National Highway Traffic Safety Administration Traffic Safety Plan for Older Persons (March 1993) <http://www.nhtsa.dot.gov/people/injury/olddrive/pub/olderpln.html>.

 

[10] National Agenda, supra note 8. 

 

[11] Watchful Eye: Older Drivers May Pose a Risk Morally and/or Legally (December 29, 1997) <http://www.agenet.com/watchful_elderly_drivers.html> (hereinafter Watchful Eye).

 

[12] AARP Webplace | 55 Alive Mature Driving Program Frequently Asked Questions, Answer to Question 6 (visited Oct. 23, 1999) <http://www.aarp.org/55alive/faq6.html>.  The question posed is:  “Isn’t it true that motorists age 55 and older have good accidents records when compared with younger drivers?”  Id. 

 

[13] Licensing — Part I, supra note 8.

 

[14] Licensing Older Drivers — Part II, Road Mgmt. Engineering J. (March 1, 1997) <http://www.usroads.com/journals/rej/9703/re970303.htm> [hereinafter Licensing — Part II].  Interestingly, on a per-mile basis, older drivers have a greater fatality rate than younger drivers but most crashes involving older drivers are caused by right-of-way and turning mistakes which are, more often than not, “related to reductions in physical and cognitive capabilities of which the driver is unaware.”  Addressing the Safety Issues Related to Younger and Older Drivers:  A Report to Congress January 19, 1993 on the Research Agenda of the National Highway Traffic Safety Administration (visited Oct. 23, 1999) <http://www.nhtsa.dot.gov/people/injury/olddrive/pub/yorept.html> (hereinafter NHTSA Report).  See also Jennifer L. Klein, Elderly Drivers:  The Need for Tailored License Renewal Procedures, 3 Elder L. J. 309, 314 (Fall 1995).  “In 1992, drivers seventy-five years of age and older were involved in 11.5 fatal crashes per 100 million miles driven, whereas drivers thirty-five to fifty-nine years of age were involved in two fatal crashes per 100 million miles driven.”  Id.

 

[15] Watchful Eye, supra note 11.  See Rigdon, supra note 7.  According to a Wall Street Journal computer analysis of the Department of Transportation’s (DOT) fatal-accident data for 1990, drivers over the age of eighty-five are fifteen times as likely to die from a car accident than drivers in their forties.  Id.  After age eighty-five, drivers are involved in four times as many accidents as the safest age group of drivers — those fifty to fifty-nine.  Id.  

 

[16] NHTSA Report, supra note 14.

 

[17] Licensing — Part I, supra note 8.  Dr. David Shinar of Ben Gurion University of the Negev elaborates:  “Visual acuity deteriorates at an earlier age and more quickly than other perceptual-motor skills, but deterioration is still so gradual that many people are unaware of the extent of impairment.”  Id.  See also Klein, supra note 14 at 316.  “Common visual problems among the elderly include cataracts, glaucoma, increased sensitivity to glare, decreased ability to focus on both static and dynamic objects, and less acute night vision . . .”  Id.

 

[18] Licensing — Part I, supra note 8.  Dr. Loren Staplin of The Scientex Corporation adds that “Elderly drivers, especially in the 75-and-over age group, have difficult separating information they need for safe driving from the visual clutter that confronts all drivers.  In addition, slower decision-making skils contribute to increased difficulty avoiding a collision in a rapidly changing driving situation.”  Id.  See also Klein, supra note 14 at 317.  “Older persons process information at a slower rate and experience memory at a greater rate, which affect the driver’s ability to execute a physical maneuver . . . [t]he speed of simple motor responses also diminishes with age, which affects the execution phase of driving.”  Id.

 

[19] Klein, supra note 14 at 317.  In fact, “forty-four percent of all fatal accidents involving drivers over age eighty-five compared to less than seven percent for drivers under age fifty-five.”  Id. at 317-18.  See Rigdon, supra note 7. 

 

[20] Thomas D. Koepsell et al., Medical Conditions and Motor Vehicle Collision Injuries in Older Adults, 42 JAGS 695 (1994).  Further implicating the role medications may play as contributory influences in older drivers and their deteriorating abilities is the fact that older drivers use such medications at a higher rate than that of the general population.  See Tripodis, supra note 8 at 1055 n. 61.  Additionally, sometimes the side effects of certain medications may affect an older driver’s ability and increase the risk of their involvement in an accident.  Id. at 1056.  For example, Rigdon recounts an incident in which an 88-year old man struck and killed his wife while trying to pick her up.  See Rigdon, supra note 7.  At the time that he was driving, he was under the influence of nine different medications including two that cause drowsiness and two with specific warnings against driving because they might cause drowsiness.  Id.

 

[21] Mueller, supra note 1.

 

[22] “As Evelyn Von Phle, an 81-year-old [sic] retired accountant from Longwood, Fla., [sic] says, ‘I’d rather be pushing up daisies than live without a car.’”  Rigdon, supra note 7 (emphasis added).

 

[23] Licensing — Part I, supra note 8.

 

[24] Rigdon, supra note 7.

 

[25] Id.

 

[26] Licensing — Part II, supra note 14.

 

[27] Rigdon, supra note 7.

 

[28] Id.

 

[29] Robert B. Wallace & Daniel Franc, Literature Review of the Status of Research on the Transportation and Mobility Needs of Older Women (visited Oct. 23, 1999) <http://www.nhtsa.dot.gov/people/injury/olddrive/nscript.html>.  Prepared by the University of Iowa College of Medicine Department of Preventive Medicine for the National Safety Council and the National Highway Traffic Safety Administration.  See also Licensing — Part II, supra note 14.

 

[30] See Mueller, supra note 1.  See also Marcia Myers, State to Help Older Drivers Stay On Road; Goal is to Spot Risks, Improve Safety Skills of Seniors, Officials Say; “Used to Being Independent”; Two-Year Study May Be National Model to Overcome Problems, Baltimore Sun, Oct. 17, 1999, at 1A.  “Researchers are looking into better options for those who can no longer drive.  The Mass Transit Administration is studying expanded bus and van services for seniors, as well as better information about its services . . . ‘Instead of a negative, confrontational situation taking away a person’s license, people would get transportation assistance . . .’” Id.

 

[31] Goldberg v. Kelly, 397 U.S. 254 (1970), Sniadich v. Family Finance Corp., 395 U.S. 337 (1969).  See U.S. Const. amend. XIV. § 1.  “No State shall . . . deprive any person of life, liberty, or property, without due process of law . . .”  Id.

 

[32] Bell v. Burson, 402 U.S. 535, 539 (1971), citing Sherbert v. Verner, 374 U.S. 398 (1963). In Bell, the Court considered Georgia's Motor Vehicle Safety Responsibility Act, which provided that the vehicle registration and driver's license of an uninsured motorist involved in an accident shall be suspended unless he posted security in an amount sufficient to cover damages claimed by agg§rieved parties in the accident report.  The Court held that since “fault” was an essential element of the decision to suspend the license, the state must provide a pre-suspension forum for determining whether there is a reasonable possibility of a judgment being rendered against him as a result of the accident.  Id. at 542.

 

[33] U.S. Const. amend. XIV. § 1.

 

[34] Jones v. Penny, 387 F. Supp. 383, 393 (M.D.N.C. 1974).  Jones case was a man whose driver's license had been revoked after he was involuntarily committed to an institution for treatment of alcoholism. Id. at 385-86.  He brought a constitutional action claiming that the revocation procedure denied procedural due process, was governed by vague and overbroad standards and violated equal protection principles.  Id. at 384-85.  The court held that the revocation procedures were unconstitutional for (1) failure to provide a hearing on the question of competency prior to revocation and (2) because they chilled the right of appealing revocation to a review board.  Id. at 396-97.

 

[35] That is, it may not be an immediate “handing over” of the license upon, for example, a refusal to take a breathalyzer test.  See Mackey v. Montrym, 443 U.S. 1, 11 (1979).

 

[36] Bell, 402 U.S. at 538.

 

[37] Bell, 402 U.S. at 538; Mackey, 443 U.S. at 19.

 

[38] See Klein, supra note 14 at 331-32.

 

[39] Id. at 329.

 

[40] U.S. Const. amend. XIV. § 1.

 

[41] Gunther at 634 (emphasis in original).

 

[42] “This is my own formulation. [Kenneth L. Karst, The Supreme Court, 1976 Term — Foreword:  Equal Citizenship Under the Fourteenth Amendment, 91 Harv.L.Rev. 1, 4 (1977)].  The principle of equal citizenship is not a rule for judicial decision, but a general principle that informs decision by centering a court's attention on the substantive values of respect, responsibility, and participation.  Equal citizenship is no absolute;  nor does our constitutional rhetoric of equality produce "monolithic" judicial scrutiny of legislation, as suggested in [Westen, The Empty Idea of Equality, > 95 Harv.L.Rev. 537, 585 (1982)].” Kenneth L. Karst, Why Equality Matters, 17 Ga. L. Rev. 245, 247-48 (1983).

 

 

[43] See Massachuest Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (per curiam).  That case sustained a Massachusetts law requiring State police officers to retire upon reaching fifty years of age.  The court rejected the argument that age should be viewed as a suspect classification triggering heightened scrutiny.  Id. at 309-10.  Instead, the court applied the rational basis standard.  In its per curiam opinion, the court  wrote that “the State’s classification rationally furthers the purpose identified by the State:  Through mandatory retirement at age 50, the legislature seeks to protect the public by assuring physical preparedness of its uniformed police.”  Id. at 314.

 

[44] Id. at 313.

 

[45] Gerald Gunther & Kathleen M. Sullivan, Constitutional Law 734 (13th ed. 1997).

 

[46] Id., quoting Murgia, 427 U.S. at 313-314.

 

[47] 23 U.S.C.A. ch. 4.   

 

[48] 23 U.S.C.A. § 402.

 

[49] For example, the  guidelines state:  “Each State shall have a highway safety program approved by the Secretary, designed to reduce traffic accidents and deaths, injuries, and property damage resulting therefrom .”  23 U.S.C.A. § 402.

 

[50] The Transportation Equity Act for the 21st Century (TEA-21), Pub. L. No. 105-178, 23 U.S.C. § 402 (as amended by the TEA-21 Restoration Act, Pub. L. 105-206). The Transportation Equity Act for the 21st Century was enacted June 9, 1998 and the TEA 21 Restoration Act, enacted July 22, 1998.  The TEA-21 Restoration Act merely provided technical corrections to the original law.  See Uniform Guidelines For State Highway Safety Programs: Highway Safety Program Guideline (visited Oct. 26, 1999) <http://www.nhtsa.dot.gov/nhtsa/whatsup/tea21/tea21programs/402Guide.html>.

 

[51] TEA-21, supra note 50..

 

[52] Uniform Guidelines For State Highway Safety Programs: Highway Safety Program Guideline No. 5 Driver Licensing III(A) (visited Oct. 26, 1999) <http://www.nhtsa.dot.gov/nhtsa/whatsup/tea21/tea21programs/402Guide.html>.

 

[53] Uniform Guidelines For State Highway Safety Programs: Highway Safety Program Guideline No. 5 Driver Licensing VII(A) (visited Oct. 26, 1999) <http://www.nhtsa.dot.gov/nhtsa/whatsup/tea21/tea21programs/402Guide.html>.

 

[54] Uniform Guidelines For State Highway Safety Programs: Highway Safety Program Guideline No. 21 Roadway Safety (visited Oct. 26, 1999) <http://www.nhtsa.dot.gov/nhtsa/whatsup/tea21/

tea21programs/402Guide.html>.

 

[55] Id.

 

[56] The Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101-189.

 

[57] Id.

 

[58] The Americans with Disabilities Act:  A Brief Overview (visited Oct. 23, 1999) <http://janweb.icdi.wvu.edu/kinder/overview.htm>.

 

[59] ADA, supra note 56.

 

[60] Id.

 

[61] Id.

 

[62] Id.

 

[63] Id.

 

[64] Licensing — Part I, supra note 8.

 

[65] AARP Webplace:  On the Issues (visited Sept. 19, 1999) <http://www.aarp.org/ontheissues/

issuetransport.html>.  National Agenda, supra note 8.

 

[66] Rigdon, supra note 7.

 

[67] Id.  “Their frequent failure to yield helps explain why seniors often get hit in the side.  Indeed, more than 40% of fatal crashes involving drivers over the age of 80 are side-impact crashes . . . One such accident killed Wilfred Robichard, an 83-year-old from Sound Beach, N.Y.  Mr. Robichard was making a left turn on a Port Jefferson Station, N.Y., highway in March when, to avoid another car, he suddenly stopped dead in the middle of the middle of the intersection — even though a Chevy Lumina was approaching to his right.”  Id.

 

[68] Id.

 

[69] Rigdon, supra note 7.

 

[70] Id.

 

[71] “Research shows that in a crash involving two vehicles, if one is twice as big and heavy than the other, then the fatality rate is 12 times greater for the driver of the lighter car.”  HealthCentral — News — Parents often unaware of large car safety (November 2, 1998) <http://www.healthcentral.com/news/NewsFullText.cfm?ID=1830>. 

 

[72] “An air bag inflates at a speed between 98 to 211 miles per hour in roughly a tenth of a second.”  HealthCentral — News — More Air Bag Injuries Reported (August 20, 1997) <http://www.healthcentral.com/news/newsfulltext.cfm?id=3420> (sources:  The New Eng. J. Med. (1997; 337:573-575); Risk in Persp. (July 1997;7)).

 

[73] Id.

 

[74] Id.

 

[75] Id.

 

[76] Klein, supra note 14 at 326-27.

 

[77] Id.

 

[78] AARP Webplace:  On the Issues, supra note 59. 

 

[79] The following codes and statutes contain general licensing exam and/or renewal exam language unless noted otherwise.  Ala. Code §§ 32-6-1 & 32-6-7 (1999); Alaska Stat. § 28.15.011 (1998); Ariz. Rev. Stat. Ann. § 28-3153 (West 1999); Ark. Code Ann. § 27-16-901 (Michie 1999); Cal. Veh. Code § 12816 (West 1998); Colo. Rev. Stat. § 42-2-118 (West 1999); Conn. Gen. Stat. Ann. § 14-41 (West 1999); Del. Code Ann. tit. 21, § 2707 (1998); D.C. Code Ann. § 40-301 (1998); Fla. Stat. Ann. § 322.18 (West 1998); Ga. Code Ann. §§ 40-5-32 & 40-5-35 (1999); Haw. Rev. Stat. Ann. § 286-107 (Michie 1998); Idaho Code § 49-313 (1999); 625 Ill. Comp. Stat. Ann § 5/6-109 (West 1999); Ind. Code Ann. § 9-24-3-2 (West 1999); Iowa Code Ann. §§ 321.180A & 321.186 (West 1998) (in this case, the codes includes a special instruction permit statute and one specifically addressing the testing of incompetent drivers); Kan. Stat. Ann. § 8-247 (1998); Ky. Rev. Stat. Ann. § 186.410 (Michie 1998); La. Rev. Stat. Ann. § 403.1 (West 1998) (statute specifically applied to applications by persons sixty years of age or older); Me. Rev. Stat. Ann. tit. 29-A, § 1303 (West 1997) (this statute specifically address the vision test requirements); M.D. Code Ann., Transp. § 16-115 (West 1999);  Mass. Gen. Laws Ann. ch. 90, § 8 (Law. Co-op. 1999); Mich. Comp. Laws. Ann. § 257.314 (West 1999); Minn. Stat. Ann. § 171.27 (West 1998); Miss. Code Ann. § 63-1-47 (1999); Mo. Ann. Stat. § 302.177 (West 1998); Mont. Code Ann. § 61-5- 111 (1997); Neb. Rev. Stat. § 60-490 (1998); Nev. Rev. Stat. Ann. § 483.380 (Michie 1997); N.H. Rev. Stat. Ann. § 263:6 (1998); N.J. Stat. Ann. § 39.3-10 (West 1999); N.M. Stat. Ann. §§ 66-5-7 & 66-5-21 (Michie 1999); N.Y. Veh. & Traf. Law § 503 (1999);  N.C. Gen. Stat. § 20-7 (1998); N.D. Cent. Code § 39-06-19 (1999); Ohio Rev. Code Ann. §§ 4507.10 & 4507.12 (1999) (§ 4507.12 details vision screening examination requirements); Okla. Stat. Ann. tit. 47, §§ 6-115 & 6-118 (West 1999) (§ 6-118 is the law creating a Driver’s License Medical Advisory Committee); Or. Rev. Stat. § 807.070 (1998); > 75 Pa. Cons. Stat. Ann. § 1508 (West 1999); R.I. Gen. Laws § 31- 10-30 (1998); S.C. Code Ann. § 56-1-130 (Law. Co-op. 1998); S.D. Codified Laws § 32-12-42 (Michie 1999); Tenn. Code Ann. § 55-50-322 (1998); Tex. Transp. Code Ann. §§ 521.161 &  521.274 (West1997) (§521.274 governs renewals by mail); Utah Code Ann. §§ 53-3-206, 53-3-214 & 53-3-304 (1999) (§ 53-3-206 governs the examination of an applicant’s physical and mental fitness and §53-3-304 governs the licensing of impaired persons — setting forth medical review procedures); Vt. Stat. Ann. tit. 23, § 631 (1999); Va. Code Ann. § 46.2-322 (Michie 1999) (this law deals explicitly with the examination of licensee’s believed incompetent); Wash. Rev. Code Ann. § 46.20.181 (1998); W. Va. Code § 17B-2-7 (1999); Wis. Stat. Ann. § 343.16 (West 1999); Wyo. Stat. § 31-7-114 (1999).

 

[80] Licensing — Part I, supra note 8.

 

[81] Kan. Stat. Ann. § 8-247(a)(1).

 

[82] Kan. Stat. Ann. § 8-247(a)(2).

 

[83] Ind. Code. Ann. § 9-24-3-2(2)(A) (West 1999).

 

[84] R.I. Gen. Laws § 31-10-30 (1998).

 

[85] Colo. Rev. Stat. Ann. § 42-2-118(1.3)(a)(I) (West 1999).

 

[86] 625 Ill. Comp. Stat. Ann. 5/6-109(b) (West 1999).  See infra note 96.

 

[87] Democratic Representative Paul Caron responds:  “Lifetime licenses will be an absolute nightmare . . . We need to be able to identify those people who are not only a threat to themselves, but to other people on the road.”  Mueller, supra note 1.

 

[88] 23 U.S.C.A. § 402.

 

[89] “Tests focusing on field of vision, visual acuity, and neck movement ‘are easy to use in an office setting, do not require expensive equipment, and take less than 5 minutes to complete . . .’” HealthCentral — News — Simple Tests Spot At-Risk Older Drivers (May 5, 1998) <http://www.healthcentral.com/news/newsfulltext.cfm?id=5195> (hereinafter Simple Tests).

 

[90] Id.

 

[91] “The study showed that impaired vision increased the risk of an accident by almost 12 times, having a limited ability to rotate the neck increased risk by 6 times, and a low score on a test of visual attention increased risk by 3 times.”  Id.  A University of Alabama at Birmingham study virtually duplicated the results of the Yale study agreeing that a reduced field of vision was one of the “strongest predictors” of drivers likely to be involved in car crashes.  Id.  The use of certain medications and a history of falls was also found to be tied to an increased risk of a car crash.  Id.

 

[92] Licensing — Part I, supra note 8.

 

[93] Licensing — Part II, supra note 14.  More than that, some physicians surely find standard eye tests to be inefficient in gauging reaction time or a driver’s potential to become confused and befuddled when encountering unexpected traffic conditions.  See Mueller, supra note 1.

 

[94] Licensing — Part I, supra note 8.  “Some physicians, however, are reluctant to jeopardize their relationship with a patient by making such a referral, and many elderly drivers do not want to appear at a driver licensing agency because they fear having to take a knowledge test in addition to a performance test.” Id.

 

[95] Rigdon, supra note 7.

 

[96] Arizona requires vision testing after 60.  Ariz. Rev. Stat. Ann. § 28-426.01(A)(4) (West 1999). Kansas increased the frequency of mandatory reexamination renewals for those who are 65 or older to every four years.  Kan. Stat. Ann. § 8-247(a)(2).  Utah requires vision testing for those 65 and older.  Utah Code Ann. § 53-3-214(3)(b)(ii) (1999).

 

[97] Colorado allows renewal by mail until age 66, then retesting of, at least, visual acuity is required.  Colo. Rev. Stat. Ann. § 42-2-118(1.3)(a)(I).  Visual acuity refers to the clarity of a driver’s vision.  Simple Tests, supra note 81.

 

[98] The Illinois statute reads in pertinent part “that every applicant for the renewal of a driver’s license who is 75 years of age or older must prove, by an actual demonstration, the applicant’s ability to exercise reasonable care in the safe operation of a motor vehicle.”  625 Ill. Stat. Ann. 5/6-109(c).

 

[99] Jones, 387 F. Supp. at 393.  See supra note 34.

 

[100] Id.

 

[101] Klein, supra note 14 at 325-26.

 

[102] Id.

 

[103] Id.

 

[104] Mueller, supra note 1.

 

[105] AARP Webplace:  55 Alive Mature Driving Program (visited Oct. 23, 1999) <http://www.aarp.org/55alive/about.html>

 

[106] Note that AARP offers the course as a public service, so it is open to everyone regardless of whether they are members of AARP.  The cost of the session is a reasonably inexpensive $8 for the two-day course.  An added incentive is that after completing the course, drivers may be eligible to receive discounts on their auto insurance premiums.  Since 1979, over 6 million people have completed the course.  Id..

 

[107] Id.

 

[108] Id.  The American Automobile Association (AAA) urges older drivers to complete this program.  See Mueller, supra note 1.

 

[109] Licensing — Part II, supra note 14.

 

[110] Id.

 

[111] The bill is commonly known as the “Brandi Jo” bill in honor of a fifteen year-old Los Angeles girl who was killed when a ninety-six year-old man ran over her.  Drummond, supra note 3.  See also Mueller, supra note 1.

 

[112] Myers, supra note 1.

 

[113] Id.

 

[114] “What we’re trying to ultimately develop is a driving test that’s valid, like a mammogram.”  Id.

 

[115] Taking Grandpa’s Keys, Salt Lake Trib., Sept. 20, 1999, at A8.  Until one has experienced the heartache of confronting an aged and respected family member on this issue, it is hard to fully understand the emotional impact.  All of us recognize that our parents and grandparents are due a certain level of respect for the life they have lead.  Just as no one is truly “prepared” to die, no one is quite prepared for the day when their children, or even grandchildren, have to come to them and take away his last symbol of self-dependence.  Laws that help relieve the family tensions created by such confrontations can do nothing but help.

 

[116] Id.

 

[117] Id.

 

[118] Id.