I concur in the result. In my view the troubling issue (unfortunately not argued here) is equal protection, not due process. We may agree that the six-month penalty is not excessive. It does not follow that therefore the process of penalizing is nondiscriminatory.1
The questionable discrimination involves comparing the harm done appellant here with the apparent tolerance accorded to someone who, having taken the tests, flunks. That person may continue to drive pending trial, it seems, even when the tests show “0.10 percent or more by weight of alcohol in [his or her] blood [when, accordingly,] it shall be presumed that the person was under the influence of intoxicating liquor at the time of the alleged offense.” (Veh. Code, § 23126, subd. (a)(3).)
*85One observer has reported that, in 1980, “26,171 California motorists had their driver’s licenses suspended because they refused to take one of the three chemical tests.. .[whereas] 215,718 persons were convicted of drunken driving.... ” (Kang, High court hears the arguments on 'right to drive’, S.F. Sunday Examiner & Chronicle (Mar. 29, 1981) p. A7; cf. Erwin, Trial Tactics: Preparing DUI Defendants and Defense Witnesses for Cross-Examination (1981) 8 Forum, No. 1, pp. 18, 23 (“Not under the influence at .10”); Plotkin, Most Blood Testing for Alcohol Content Is in Error (1978) 5 Forum, No. 5, p. 9; Fitzgerald & Hume, The Single Chemical Test for Intoxication: A Challenge to Admissibility (1981) 66 Mass.L.Rev. 23; Alternative Sentencing Evaluation Committee for Driving under the Influence Report and Recommendations to the L.A. County Municipal Judges’ Association and Presiding Judges’ Association (Mar. 26, 1981).) “Added to the constitutional problems of these statutes is the very nature of the chemical tests themselves. Far from the infallibility one would expect of evidence resulting in the imposition upon a defendant of proving himself to be innocent, these tests appear to be no more reliable than any other form of scientific evidence, and very possibly considerably less reliable.” (Taylor, Blood-alcohol presumptions: Guilty until proved innocent (1978) 53 State Bar J. 170, 177.)
The attorney here hypothesized a presumption and argued that, under the “compelling [state] interest test,” his presumption exemplifies “less drastic means.” He contends that California’s interest in highway safety would be as well-served by a presumption that his client was under the influence of alcohol as by the six-month suspension of the license.
I believe that neither the federal nor the state Constitution requires that the Legislature adopt that or a similar proposal. The aim of the six-month suspension is to persuade certain drivers to take at least one of the tests. The Legislature has concluded that evidence thus obtained and utilized pursuant to rules based on varying levels of intoxication is likely to be useful and reliable at trial. Test results are treated as superior to testimonial disputes between defendants and the arresting officers. It is true that a presumption might jeopardize, a driver’s hope for an adjudication in his favor, and that thus he might be persuaded to submit to testing. By no means, though, should that lead us to conclude that the Legislature’s choice of a more powerful persuader (i.e., its threat of a six-month suspension) was unauthorized. (Cf. People v. Glaze (1980) 27 Cal.3d 841, 847 [166 Cal.Rptr. 859, 614 P.2d 291].)
*86I am unable to indorse the view that the right to drive is not fundamental. But the statute nonetheless survives because it meets the strict scrutiny test.
Hale v. Morgan (1978) 22 Cal.3d 388, 404 [149 Cal.Rptr. 375, 584 P.2d 512], ruled that a penalty violates due process when it is “mandatory, mechanical, potentially limitless in its effect regardless of circumstance” and when “[i]ts severity appears to exceed that of sanctions imposed for other more serious civil violations.... ” The six-month license suspension here probably does not fit that proscription. (See Kesler v. DMV (1969) 1 Cal.3d 74 [81 Cal.Rptr. 348, 459 P.2d 900].)