Could Tennessee constitutionally require a marked driver's license for DUI convicts and ban alcohol sales to anyone bearing such a license?

Plain-English summary

Rep. Bud Hulsey asked AG Slatery to evaluate a hypothetical bill that would (1) require any Tennessean convicted of DUI to carry a driver's license bearing a visible marker (e.g., a red stripe) and (2) make it a misdemeanor for any establishment to sell alcohol to a person presenting such a marked license.

The AG's analysis is a careful balance. He acknowledged that:

• A DUI conviction does not put a person in a suspect class, and the right to buy alcohol or to bear an unmarked license is not a fundamental right.
• So rational-basis review would apply (Riggs v. Burson; Gallaher v. Elam), and Tennessee statutes enjoy a strong presumption of constitutionality.
• The state interest in preventing drunk driving is compelling (State v. Downey).

Even with that deferential framing, the AG flagged real concerns:

• Breadth. The marker would appear every time the convict shows a driver's license, including in interactions that have nothing to do with alcohol or driving. The most common form of photo ID becomes a permanent badge of conviction. The "indignity" of universal display is arguably arbitrary as applied to non-alcohol contexts.
• Categorical operation. First-time and repeat offenders would be marked alike, with no expiration or expungement mechanism. The bill would not distinguish DUI offenders who currently abstain or have completed treatment from those who continue drinking.
• Loose fit to the underlying harm. The harm is drunk driving, but the alcohol-sales ban applies regardless of whether the person is going to drive. A marked person walking to a bar, taking a taxi, or attending a dinner party would still be unable to purchase alcohol. The bill also leaves obvious workarounds (using a passport, having a friend buy) intact.

The AG concluded the bill would be subject to deferential review and might survive if the General Assembly accompanied it with legislative findings about recidivism rates, the relationship between alcohol purchase and subsequent DUI behavior, and the law's expected efficacy. Without those findings, the connection between the means and the end would be tenuous, and a court could find the law arbitrary or discriminatory.

Currency note

This opinion was issued in 2018. 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 opinion's analysis is constitutional in nature and would still apply to similar legislation today, but the federal and Tennessee equal-protection landscape can shift. Anyone evaluating a similar bill should also examine recent Tennessee Supreme Court rational-basis decisions, federal collateral-consequences case law, and any DUI-related amendments to title 55.

Common questions

Q: What standard of review applies?
A: Rational basis. DUI offenders are not a suspect class (Doe v. Mich. Dep't of State Police lists race, alienage, national origin, gender, and illegitimacy as the recognized suspect classifications). And the right to buy alcohol is not a fundamental right. Under Tennessee law, the statute would be upheld if a reasonable basis exists for the classification (Gallaher v. Elam) and if it bears a reasonable relation to a proper legislative purpose and is neither arbitrary nor discriminatory (Riggs v. Burson; Newton v. Cox).

Q: Doesn't deferential review mean almost anything passes?
A: It is deferential, but not toothless. Riggs v. Burson and Gallaher v. Elam recognize that even rational-basis review can fail when the legislative classification has no rational connection to the stated purpose, or when the means are so broadly disproportionate to the end that they look arbitrary. The AG's concern is precisely that this proposal sits in that zone.

Q: Why does the marked license matter?
A: A driver's license is the most common photo ID. People show it not just to buy alcohol but to vote, board a plane, enter a hospital, cash a check, or check into a hotel. A DUI marker visible in all of those interactions has nothing to do with alcohol or driving. The opinion frames that as a visible indignity loosely connected to the law's purpose.

Q: Why is the alcohol ban itself a problem?
A: It is absolute. A DUI offender on foot, in a taxi, or at a private dinner is still subject to the ban, even though none of those scenarios involve drunk driving. The opinion notes that the law also does nothing about surrogate purchases or sales based on other forms of ID like a passport, so the means are over-inclusive in some directions and under-inclusive in others.

Q: What could fix the constitutional problems?
A: The opinion suggests legislative findings could help: recidivism statistics for first-time DUI offenders, evidence linking alcohol-purchase contexts to subsequent DUI conduct, evidence on what kinds of mechanisms reduce repeat offenses. The opinion also points to the missing distinctions in the proposal itself (no expiration or expungement mechanism, no line between first-time and repeat offenders) as part of why the fit is loose. The AG didn't say a tailored bill would be constitutional, just that the proposal as drafted is at risk.

Q: Has Tennessee adopted this kind of law?
A: This opinion addressed proposed legislation, not law currently on the books. The AG's role is advisory in this context.

Background and statutory framework

Tennessee's standard rational-basis test for legislative classifications:

1. The legislation must bear "a reasonable relation to a proper legislative purpose" (Newton v. Cox).
2. It must be "neither arbitrary nor discriminatory" (Riggs v. Burson).
3. Any classifications "will pass constitutional muster if [the court] can conceive of some rational basis for the distinction" (Gallaher v. Elam).
4. The challenger bears "the greatest burden of proof" (Brown v. Campbell County Bd. of Educ.).

Suspect classifications get heightened scrutiny: race, alienage, national origin, gender, illegitimacy (Doe v. Mich. Dep't of State Police). DUI offenders are not on that list.

The state interest in suppressing drunk driving is well-recognized; the Tennessee Supreme Court called the goal compelling in State v. Downey. The hard work in the analysis is whether the means actually serve that interest.

The opinion doesn't impose a constitutional bar; it counsels caution. The AG noted that legislative findings about recidivism of first-time offenders, the relationship between DUI and alcohol purchase, and the law's potential efficacy could help establish the connection between the law's requirements and the problem it addresses, and that without such findings the connection is tenuous.

Citations

• U.S. Const. amend. XIV, § 1; Tenn. Const. art. I, § 8; art. XI, § 8
• Gallaher v. Elam, 104 S.W.3d 455 (Tenn. 2003)
• Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997)
• Doe v. Mich. Dep't of State Police, 490 F.3d 491 (6th Cir. 2007)
• Newton v. Cox, 878 S.W.2d 105 (Tenn. 1994)
• Brown v. Campbell County Bd. of Educ., 915 S.W.2d 407 (Tenn. 1995)
• State v. Downey, 945 S.W.2d 102 (Tenn. 1997)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2018/op18-02.pdf

Original opinion text

Prohibition on Selling Alcohol to Individuals Convicted of a DUI

Question
Would legislation that (1) required an individual who had been convicted of driving under the influence (DUI) to bear a driver's license with a marker denoting the DUI conviction and (2) imposed a misdemeanor penalty on any establishment that sold alcohol to an individual bearing this type of license raise any constitutional concerns?

Opinion
Even though such legislation would be subject to deferential review, it would raise constitutional concerns due to its breadth and categorical operation.

ANALYSIS

The contemplated legislation would ban alcohol sales to individuals who have been convicted of driving under the influence (DUI). It would do so by mandating that each individual convicted of a DUI be issued a new driver's license that includes a marker of some kind, e.g., a red stripe, denoting that conviction. The legislation would then prohibit establishments that serve or sell alcoholic beverages from selling alcohol to an individual bearing a license with a DUI marker and would impose a misdemeanor penalty for failure to comply with that prohibition.

Legislation passed by the General Assembly enjoys a strong presumption of constitutionality. See Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003). And, if challenged on constitutional grounds, legislation that does not implicate a fundamental right or a suspect class, is subject only to deferential review. See Riggs v. Burson, 941 S.W.2d 44, 51-53 (Tenn. 1997).

The proposed DUI legislation does not disadvantage a suspect class. See Doe v. Mich. Dep't of State Police, 490 F.3d 491, 503 (6th Cir. 2007) (noting that the classifications the U.S. Supreme Court has identified as suspect include "race, alienage, national origin, gender, or illegitimacy"). Nor does it implicate a fundamental right. Accordingly, to be consistent with the equal protection and due process guarantees of the U.S. and Tennessee Constitutions, see U.S. Const. amend. XIV, § 1; Tenn. Const. art. I, § 8; id. art. XI, § 8, the legislation needs only to "bear[] 'a reasonable relation to a proper legislative purpose' and [be] 'neither arbitrary nor discriminatory.'" Riggs, 941 S.W.2d at 51 (quoting Newton v. Cox, 878 S.W.2d 105, 110 (Tenn. 1994)). And any classifications or divisions it creates "will pass constitutional muster if [the court] can conceive of some rational basis for the distinction." Gallaher, 104 S.W.3d at 462. A party challenging this legislation would thus bear "the greatest burden of proof." Riggs, 941 S.W.2d at 53 (quoting Brown v. Campbell County Bd. of Educ., 915 S.W.2d 407, 413 (Tenn. 1995)).

The types of interests that would motivate the General Assembly to enact the contemplated legislation, safety and preventing the dangers caused by drunk driving, are compelling. See State v. Downey, 945 S.W.2d 102, 104 (Tenn. 1997). Whether the contemplated legislation bears a "reasonable relation" to those interests or operates in an "arbitrary" or "discriminatory" manner is a more difficult question, however.

The two specific requirements of the proposed legislation, a special driver's license denoting a DUI conviction and an absolute prohibition on the sale of alcohol to the bearers of such licenses, apply broadly but align only loosely with the state's interests. They relate exclusively to the purchase of alcohol by individuals who have a previous DUI conviction, but they have very little relation to driving under the influence of alcohol or to alcohol consumption more generally. An individual bearing a DUI license would be flatly prohibited from buying alcohol, even if he did not have access to a vehicle or had travelled to an alcohol-serving establishment through alternative means, such as by taxi or on foot. The legislation as described would not distinguish between first-time offenders or repeat offenders; nor would it provide an expiration date or expungement mechanism for the DUI marker. Moreover, the legislation would not prohibit alcohol sales based on other forms of identification, such as a passport, and would not do anything to prevent or discourage an acquaintance from purchasing alcohol for an individual with a DUI license.

The proposed legislation operates bluntly and categorically, designating all individuals with a previous DUI conviction as an inferior class with respect to purchasing alcohol. Although legislation does not have to be narrowly tailored to fit a precise purpose under the deferential standard of review appropriate here, the breadth of this contemplated legislation does raise concerns about its reasonable relation to the state's interest. Legislative findings about the recidivism of first-time DUI offenders, the relationships between DUI and the purchase of alcohol, and the potential efficacy of the proposed legislation could help establish a connection between the law's requirements and the problem it is addressing. But the connection is tenuous without such findings.

Moreover, the categorical operation of the proposed legislation and the indignity it would impose on DUI offenders increase the chances that a court would consider it arbitrary or discriminatory. A convicted DUI offender would be forced to display the fact of his conviction to everyone who viewed his driver's license, even if the interaction, e.g., showing a photo ID to vote in an election, had nothing to do with alcohol. Individuals convicted of a DUI would be "marked" for the world to see. And because the driver's license is the most common form of identification, much of the indignity associated with bearing that marker would have nothing to do with the state's interest, driving under the influence of alcohol.

In short, a law of this type would be subject to deferential review and, may, depending on the legislative findings accompanying its passage, be upheld as constitutional. But the proposed legislation does raise constitutional concerns because it imposes a visible indignity on all convicted DUI offenders without distinction and prohibits all alcohol sales to them despite the lack of a specific connection between these activities and the act of driving, the danger the law appears designed to address.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

JONATHAN DAVID SHAUB
Assistant Solicitor General

Requested by:
The Honorable Bud Hulsey
State Representative
404 Cordell Hull Building
Nashville, TN 37243