Can Tennessee require older drivers to retake the driving test, and can doctors tip off the state when a senior's health makes them unsafe behind the wheel?

Subject

Opinion No. 11-80, Senior Drivers, December 5, 2011

Plain-English summary

Representative Bass asked the AG to walk through whether Tennessee could legally adopt several different rules targeting older drivers: periodic retesting at a certain age, modified driving exams designed for seniors, accident-triggered or family-requested retesting, and a physician-disclosure regime to flag medically unsafe drivers. The AG said all of these are within the legislature's authority.

The constitutional analysis runs through three settled propositions.

First, driving is not a fundamental right. State v. Booher (Tenn. Crim. App. 1997) and the Sixth Circuit's LULAC v. Bredesen treat driving as a revocable privilege the state grants. So no strict scrutiny.

Second, age is not a suspect classification. The U.S. Supreme Court has been clear on this for decades. Murgia (1976), Kimel (2000). So no intermediate scrutiny either.

Third, with neither a fundamental right nor a suspect class at issue, age-based driver regulations get rational basis review. Under that standard, the only question is whether the classification bears "some rational relation to a legitimate state interest." Plyler v. Doe (1982). The AG concluded that public safety, plus the Supreme Court's recognition in Murgia that "physical ability generally declines with age," easily satisfies the rational basis threshold for tailored testing, more frequent renewal, accident-triggered retesting, and family-complaint-triggered retesting.

The opinion did add a procedural overlay. Once a person holds a driver's license, the license is a "constitutionally protected individual property interest" under Bell v. Burson. The state can revoke or suspend, but must provide notice and a meaningful hearing appropriate to the case. Dixon v. Love confirms the hearing can be administrative and can occur after the suspension takes effect. Tennessee already has this framework under Tenn. Code Ann. §§ 50-50-102 to 805. Any new senior-driver regulation must plug into that due process structure.

The physician-disclosure question got a short answer. HIPAA already permits the disclosure the legislator was contemplating. 45 C.F.R. § 164.512(j) lets a provider transmit Protected Health Information to officials "to prevent or lessen a serious and imminent threat to the health or safety of a person or the public" if the recipient can "prevent or lessen the threat." Tennessee's driver licensure officials are exactly such recipients. Op. Tenn. Att'y Gen. No. 04-153 had already reached the same conclusion in 2004. So a Tennessee statute is unnecessary, although if the General Assembly chooses to write one it should mirror the federal regulation.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The constitutional framework (no fundamental right to drive; age not a suspect class; rational basis review; due process for license revocation) remains stable. HIPAA's privacy rule at 45 C.F.R. § 164.512(j) has not been materially altered. Anyone drafting senior-driver legislation today should verify the current text of Tennessee's driver licensure statutes (now in Title 55, not Title 50, as of subsequent recodification).

Background and statutory framework

Tennessee's driver licensure statutes. The AG cited Tenn. Code Ann. §§ 50-50-102 to 805 as the framework governing issuance and continued possession of driver's licenses. Note: Tennessee subsequently recodified driver licensure provisions; the substantive structure remained similar.

Driving as a privilege, not a fundamental right. State v. Booher, 978 S.W.2d 953, 955-56 (Tenn. Crim. App. 1997); LULAC v. Bredesen, 500 F.3d 523, 534-35 (6th Cir. 2007); Matthew v. Honish, 233 Fed. Appx. 563, 564 (7th Cir. 2007).

Police power to set conditions. Booher: Tennessee may "set reasonable conditions under which the privilege of operating vehicles on public highways may be exercised after a license is granted."

Age not a suspect classification. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 83 (2000); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312-13 (1976).

Rational basis review formula. Plyler v. Doe, 457 U.S. 202, 216 (1982): "The initial discretion to determine what is 'different' and what is 'the same' resides in the legislatures of the States. A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill."

Recognized rationale. Murgia at 315 recognized that "physical ability generally declines with age." That recognition supports age-classified driver regulations under rational basis.

Due process on revocation. Bell v. Burson, 402 U.S. 535, 539, 541 (1971): driver's licenses are constitutionally protected property interests; the state must provide notice and a meaningful hearing. Dixon v. Love, 431 U.S. 105, 115 (1977): hearings may be administrative and may occur after suspension.

HIPAA disclosure regulation. 45 C.F.R. § 164.512(j): a covered entity may use or disclose PHI when it "in good faith, believes the use or disclosure: (i)(A) is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and (B) is to a person or persons reasonably able to prevent or lessen the threat."

Prior AG opinion on physician disclosure. Op. Tenn. Att'y Gen. No. 04-153 (October 7, 2004).

Footnote: prevalence. As of 2007, "a majority of states had imposed 'more stringent licensing requirements' for elderly drivers than for other drivers." Garrick Aplin, Elderly Drivers: Balancing Public Safety with Permanent Personal Mobility, 87 Wash. U. L. Rev. 379, 390 (2009).

Common questions

Could Tennessee require seniors to retake the road test, not just the written test?

Yes. The opinion treats the form of the examination as within legislative discretion, so long as the rule passes rational basis. Behind-the-wheel testing for older drivers, depth and distance perception testing, vision testing, and other tailored exams are all on the menu.

What is a "family member" for purposes of triggering retesting?

The AG flagged this as a definitional point the legislature should pin down. The statute would need to define which relatives can trigger retesting (spouses, adult children, siblings, anyone within a certain degree of consanguinity?) to avoid arbitrariness.

Would mandatory medical certificates at a certain age be allowed?

Yes, on the same rational basis logic. Many states require periodic medical statements for older drivers or commercial drivers. The drafter just needs to anchor the rule to a public safety rationale and respect due process on any resulting denial.

Can a doctor be required to report unsafe drivers, or just permitted?

The AG's analysis addressed permission. HIPAA permits disclosure under 45 C.F.R. § 164.512(j). Whether a state could mandate physician reporting is a separate question, raising additional issues about provider-patient confidentiality and potential federal preemption.

Does this opinion analyze Title II of the ADA?

No. The AG focused on Equal Protection and HIPAA. Title II of the ADA (which covers state services) could come up if a senior driver claims a disability rather than age as the basis of the classification. Reasonable modifications and individualized assessment would then be in play.

Does the AG's analysis change if the cutoff age is unusually low?

Possibly at the margins. Rational basis review is permissive, but a wildly underinclusive or overinclusive classification could fall. A retesting requirement triggered at age 25, for example, would be hard to defend on the "physical ability declines with age" rationale. Cutoffs of 70, 75, or 80 are routine elsewhere and would be on safe ground.

Citations

• Tenn. Code Ann. §§ 50-50-102 to 805
• 45 C.F.R. § 164.512(j)
• State v. Booher, 978 S.W.2d 953 (Tenn. Crim. App. 1997)
• League of United Latin American Citizens (LULAC) v. Bredesen, 500 F.3d 523 (6th Cir. 2007)
• Matthew v. Honish, 233 Fed. Appx. 563 (7th Cir. 2007)
• Plyler v. Doe, 457 U.S. 202 (1982)
• Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000)
• Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976)
• Bell v. Burson, 402 U.S. 535 (1971)
• Dixon v. Love, 431 U.S. 105 (1977)
• Op. Tenn. Att'y Gen. No. 04-153 (October 7, 2004)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-080.pdf

Original opinion text

December 5, 2011
Opinion No. 11-80
Senior Drivers

QUESTIONS

1. Can Tennessee mandate that drivers who reach a certain age periodically retake the Tennessee driver's license examination?

2. Can Tennessee modify driver's examinations for senior drivers to address concerns that aging drivers may experience as they continue to drive, such as reduced depth and distance perception?

3. Can Tennessee require that a senior driver be retested if the driver has experienced one or more accidents, or if a family member requests retesting due to a concern that the senior's driving skills have deteriorated?

4. Can Tennessee enact legislation allowing physicians to relay medical information to the State if the physician is concerned that a senior's health condition could impair his or her driving? Would the reporting of such information violate the federal Health Insurance Portability and Accountability Act ("HIPAA")?

5. Would any of the aforementioned measures if enacted constitute unlawful discrimination?

OPINIONS

1. Yes. Tennessee can enact laws requiring seniors to submit to re-examination as a condition of receiving or renewing a driver's license. Nothing in federal or Tennessee law prohibits the exercise of this general police power.

2. Yes, so long as such requirements are rationally related to a legitimate State interest.

3. Yes, so long as such requirements are rationally related to a legitimate State interest.

4. Yes, although such a law is probably unnecessary given current federal law. Such a requirement would not violate HIPAA, given that HIPAA regulations allow a healthcare provider to provide protected health information to public officials where the healthcare provider has a good faith belief that disclosure is necessary to protect public health.

5. No, so long as any such requirement is rationally related to a legitimate State interest.

ANALYSIS

1-3. Tennessee has an extensive regulatory process governing the issuance and continued possession of driver's licenses. See Tenn. Code Ann. §§ 50-50-102 to 805. The law is well settled that the ability to drive a motor vehicle on public highways is a revocable privilege that is granted upon compliance with the State's statutory licensing provisions. State v. Booher, 978 S.W.2d 953, 955-56 (Tenn. Crim. App. 1997). Tennessee, under its inherent police power, may set reasonable conditions under which the privilege of operating vehicles on public highways may be exercised after a license is granted. Id.

Accordingly, the State of Tennessee can enact laws imposing different requirements for senior drivers to obtain or maintain a driver's license, as long as those laws are reasonable and rationally related to the State's interest in promoting public safety.[1] Under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, laws not affecting a fundamental right or a suspect classification are subject only to rational basis scrutiny. That is, such laws are constitutional if they bear some rational relation to a legitimate state interest. As the United States Supreme Court has explained:

The initial discretion to determine what is "different" and what is "the same" resides in the legislatures of the States. A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.

Plyler v. Doe, 457 U.S. 202, 216 (1982).

The privilege of driving a motor vehicle is not a fundamental right. See League of United Latin American Citizens (LULAC) v. Bredesen, 500 F.3d 523, 534-35 (6th Cir. 2007); State v. Booher, 978 S.W.2d at 955-56. See also Matthew v. Honish, 233 Fed. Appx. 563, 564 (7th Cir. 2007). The courts have also repeatedly held that age is not a suspect classification. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 83 (2000); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312-13 (1976). Therefore, a law imposing enhanced requirements in order for a senior citizen to maintain his or her driving privileges is constitutional under the Equal Protection Clause if it is rationally related to any of the Tennessee's legitimate interests, of which public safety is one.

For example, tailoring a driver's examination for a senior driver to test depth and distance perception, or requiring more frequent testing once a person reaches a certain age, seem to bear some rational relation to the State's interest in public safety, especially given the United States Supreme Court's recognition in Murgia that "physical ability generally declines with age." Massachusetts Bd. of Retirement v. Murgia, 427 U.S. at 315. Similarly, a requirement of retesting in the event of multiple accidents, or upon the complaint of a "family member," would also have a rational basis although such a requirement would require further definition of the term "family member."

While neither federal nor Tennessee law prohibit the imposition of rational differing standards for driver licensure based on age, any citizen whose driving privilege is revoked must be afforded due process, given that possession of a driver's license is a constitutionally protected individual property interest under the Due Process Clause of the Fourteenth Amendment. Bell v. Burson, 402 U.S. 535, 539 (1971). Where a state seeks to terminate a person's driving privilege, the state must afford notice and opportunity for a meaningful hearing appropriate to the nature of the case. Id. at 541. This hearing may be administrative in nature and may occur after the suspension of driving privileges. Dixon v. Love, 431 U.S. 105, 115 (1977).

4-6. In response to the remaining questions posed, HIPAA poses no obstacle to enacting a law allowing physicians to disclose patient information to public safety officials should a physician discern that a patient's health status might adversely impact his or her ability to drive. Indeed, the privacy rules enacted by the United States Department of Health and Human Services pursuant to HIPAA allow medical providers to disclose patient information under the circumstances contemplated by the opinion request. Disclosure of Personal Health Information ("PHI") by a healthcare provider is permitted where the provider "in good faith, believes the use or disclosure: (i)(A) is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and (B) is to a person or persons reasonably able to prevent or lessen the threat." 45 C.F.R. § 164.512(j) (2010). See also Tenn. Op. Att'y Gen. No. 04-153, at 2-3 (October 7, 2004). This regulation permits a doctor to transmit PHI to Tennessee officials responsible for driver licensure where the doctor has a good faith belief that the patient poses a serious and imminent threat to public safety. Therefore, there is no need for the General Assembly to enact a statute specifically allowing such disclosure. However, if the General Assembly is inclined to enact such a statute, it should be drafted to mirror the requirements of 45 C.F.R. § 164.512(j).

[1] In fact, as of 2007, a majority of states had imposed "more stringent licensing requirements" for elderly drivers than for other drivers. Garrick Aplin, Elderly Drivers: Balancing Public Safety with Permanent Personal Mobility, 87 Wash. U. L. Rev. 379, 390 (2009). See also Jennifer L. Klein, Elderly Drivers: The Need for Tailored License Renewal Procedures, 3 Elder L.J. 309 (1995).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ADAM B. FUTRELL
Assistant Attorney General

Requested by:
The Honorable Eddie Bass
State Representative
Legislative Plaza, Suite 37
Nashville, TN 37243-0165