MEMORANDUM
TAURO, District Judge.Defendant Registrar of Motor Vehicles has moved this court to reconsider its denial of his earlier motions to stay or modify the judgment entered against him by this court on May 4,1977 in accordance with the opinion issued on March 25, 1977, 429 F.Supp. 393. He relies primarily upon the recent Supreme Court case of Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977). In that case, the Court upheld the provision of the Illinois Driver Licensing Law which empowers the Secretary of State to suspend or revoke, without a preliminary hearing, a license of a driver who had repeatedly been convicted for traffic offenses.
The plaintiff argues, and this court agrees, that several critical factors distinguish Love from this case. The significance of these distinguishing factors becomes apparent when they are analyzed in terms of the three prong test of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) which requires consideration of:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures *1159used, 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.
424 U.S. at 335, 96 S.Ct. at 903.
First, the private interest here is greater than that at stake in Love. There, the Court emphasized that the challenged Illinois statute allowed a person, upon notification of suspension or revocation, to request emergency relief in the form of a restricted permit. Ill.Ann.Stat. c. 951/2 §§ 6-206(c)3 and (c)2.1 The opportunity for such relief was a controlling factor in the Court’s decision.
The private interest affected by the decision here is the granted license to operate a motor vehicle. Unlike the social security recipients in Eldridge, who at least could obtain retroactive payments if their claims were subsequently sustained, a licensee is not made entirely whole if his suspension or revocation is later vacated. On the other hand, a driver’s license may not be so vital and essential as are social insurance payments on which the recipient may depend for his very subsistence. See Goldberg v. Kelly, 397 U.S. 254, 264, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970). The Illinois statute includes special provisions for hardship and for holders of commercial licenses, who are those most likely to be affected by the deprival of driving privileges. See n. 7, supra. We therefore conclude that the nature of the private interest here is not so great as to require us “to depart from the ordinary principle, established by our decisions, that something less than an evidentiary hearing is sufficient prior to adverse administrative action.” Mathews v. Eldridge, 424 U.S., at 343, 96 S.Ct. [893] at 907. See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974).
431 U.S. at 113, 97 S.Ct. at 1728.
There is no comparable safeguard in the challenged Massachusetts statute. See Mass.Gen.Laws ch. 90, § 24(l)(f). We recognize that there is a statutory provision for a hearing at the time of the license surrender. Mass.Gen.Laws ch. 90, § 24(l)(g). But, as we pointed out in our prior opinion, such hearings are likely to be delayed with the consequence that the license remains suspended for a period of time without there being any available procedure for seeking emergency relief. Opinion 429 F.Supp. at 397, n. 11 and 400.2 *1160Unlike the situation in Love, Massachusetts provides no opportunity for emergency relief prior to a hearing. Hence the potential for irreparable personal and economic hardship is far greater in Massachusetts than in Illinois.
Contrary to the interpretation advanced by the defendant, our prior opinion does not require that the Registrar provide opportunity for a pre-suspension evidentiary hearing. Rather, we required that some opportunity to be heard be provided a licensee prior to suspension. The opportunity need not be a formal hearing, but must at a minimum give the licensee a chance to alert the Registrar to the possibility that suspension is unwarranted and would be unjust. As Love recognized, Illinois has made special provision for hardship situations. The lack of such opportunity in Massachusetts is critical.
Second, the risk of error under the Illinois scheme is markedly less than under the Massachusetts procedure. The revocation decision in Illinois is based on a series of criminal convictions. As Justice Black-mun pointed out, the licensee “had the opportunity for a full judicial hearing in connection with each of the traffic convictions on which the Secretary’s decision was based.” 431 U.S. at 113, 97 S.Ct. at 1728. To be sure, there is some risk of human error in Illinois’ reliance on criminal record keeping. Yet that risk is insignificant. In contrast, under the Massachusetts procedure, the Registrar’s decision is based solely on a form affidavit which the licensee has no opportunity to rebut. The licensee does not have an opportunity to be heard with regard to any of the three factual findings required to be made as a basis for the revocation of his license.3
According to the concurring opinion of Justice Stevens, the Supreme Court was not rejecting the constitutional analysis of the District Court in Love. His opinion indicates that an ex parte suspension or revocation of a license, based on subjective factors, may not be constitutionally permissible. The inference seems to be that summary action is constitutionally permissible only when it is based on facts that are *1161objectively ascertainable. We respectfully disagree with our brother that the three issues which must be set forth in the police officer’s affidavit amount to “a simple, objectively-ascertainable event: i. e., a refusal to take a chemical or breath test. . . . ” The facts of this case demonstrate that the contrary is true. Here, plaintiff claims he was willing to take the breath test but the opportunity to do so was denied him. The findings of the state judge support his contention. “Breathalyzer refused when requested within one half hour of being at the police station. See attached affidavit and memorandum. Smith.” The action was dismissed. Transcript at p. 5. Judge Campbell’s query as to whether plaintiffs conduct at the police station “qualifies as a refusal” ignores the state court’s finding that the plaintiff was refused the opportunity to take the test, not the other way around. The licensee in Massachusetts is not only presumed to be in violation of the statute, but is required to suffer the adverse consequences of such presumed violation without any opportunity to be heard.4 The challenged Massachusetts procedure is simply not comparable to that approved in Love.
Finally, nothing in our opinion burdens the Commonwealth’s valid interest in removing unsafe drivers from the highway. Regardless of the challenged statute, a positive breathalyzer test does not automatically remove the chronic drunk driver from the road. He may continue to drive until he is duly convicted.5 Indeed, in the Registrar’s discretion, a conviction of drunk driving need not lead to license revocation. Providing an opportunity to be heard prior to automatic suspension for refusal to take a breathalyzer test — the sole effect of our opinion — does not offend the state interest in safe highways. We conclude that our evaluation, of the Governmental interest at stake here, 429 F.Supp. at 399-400, is unaffected by Love.
Accordingly, the court declines to modify its judgment as a result of the opinion in Love. An order will issue.
. Under the Illinois scheme, a commercial driver whose license has been suspended may submit an affidavit setting forth the facts of his employment and the number of offenses committed while driving a commercial vehicle. Upon receipt of the affidavit and the driver’s license, the Secretary shall “thereupon send to said driver a permit to drive a commercial vehicle in his regular occupation.” Alternatively, the commercial driver may seek a hearing. Ill.Ann.Stat. c. 95‘/2 § 6-206(c)2. Consequently, the potential for commercial loss is considerably less than in Massachusetts.
The statutory scheme for the granting of hardship permits is somewhat more ambiguous. It is not clear whether the Secretary may consider and grant a limited license to prevent undue hardship prior to the hearing permitted by Ill.Ann.Stat. c. 95V2 § 2-118, or only subsequent to such a hearing. § 6-206(c)3. While our dissenting brother believes that the hardship application may be made and considered only subsequent to a hearing, the Court’s opinion in Love, supra, suggests that the hardship application may be considered prior to hearing. 431 U.S. 105, 97 S.Ct. 1723.
In view of the issue before the Supreme Court in Love, it is logical to conclude that consideration of what occurs after the post evidentiary hearing (under Ill.Ann.Stat. c. 95 V2 § 2-118) would be irrelevant. Yet the Supreme Court explicitly referred to the special provisions for holders of commercial licenses and for hardship cases, as indicated in the passage quoted above in the text, when it enumerated those factors which led the Court to conclude that the nature of the right involved in Love did not require an evidentiary hearing prior to license suspension or revocation.
Judge Campbell’s references to stipulated facts in footnote 3 and throughout his dissenting opinion are troublesome. Our understanding is that defendant’s proposed stipulation of facts was not executed by the plaintiff.
. In his dissenting opinion Judge Campbell states that . . . “Massachusetts provides for a full hearing commencing, though not necessarily ending, the very same day the license is surrendered.” The fact is that hearings are *1160rarely, if ever, held on the day the license is surrendered. Both parties acknowledged at oral argument that any factual dispute would make it impossible to hold an immediate hearing. The only matter renewable on the day of surrender would be whether there was something defective on the face of the report of refusal form. Factual disputes, such as those underlying the instant case, would require the hearing to be postponed for some unpredictable period until the police and other witnesses would be available.
If a Massachusetts licensee were at least given a “same day” opportunity to make a prehearing request for emergency relief, the existing constitutional defect would be cured. No evidence would need to be taken at this “same day” hearing. All that need be provided would be an opportunity to alert the registrar to facts which might cause him, in his discretion, to hold up suspension until an evidentiary hearing could be held. Under the existing statutory scheme he has no such discretion.
Indeed, such an approach would be consistent with Judge Campbell’s comments at hearing.
“It seems to me if you provided that the Registrar send a letter out to the fellow saying, T am going to take your license away if you refuse. If you want a hearing on this, you will have to ask for one in the next five days. Otherwise, your license is suspended.’ I would think in most instances where there was no real dispute about it that would give someone an opportunity, if he had a situation like this plaintiff, to bring it to the attention of the Registrar.” (emphasis supplied). Transcript p. 30.
“Well, my feeling would be that at the time this hearing is held, where the fellow has turned in his license, the hearing officer might hold up the suspension until the witnesses came in. If a different story is told then, then the Registrar might say, ‘all right. Hold up the suspension for ten days until I get to the bottom of this.’ ” Transcript p. 39.
We feel that these comments of Judge Campbell are right on the mark and, if adopted by the Commonwealth, would provide those in the position of the plaintiff with a constitutionally adequate procedure for seeking relief.
. As we pointed out in our original opinion, the arresting officer must attest to three matters: that the licensee was arrested; that the officer had reasonable grounds for believing that the person had been operating a motor vehicle while under the influence of intoxicating liquor; and that the person refused to submit to a breathalyzer test after being informed that his license would be suspended as a result of such a refusal. Opinion 429 F.Supp. at 394, n. 1.
. Moreover, we cannot agree with Judge Campbell’s conclusion that . . . “it is hard to imagine a sober driver refusing to take the test whether or not there was cause for his arrest. . . The negative inference he draws is a little too close to that too often drawn by lay persons willing to assume that one who relies on Fifth Amendment rights must be guilty of something.
. In contrast to the Illinois statute, the Massachusetts statute does not directly enhance highway safety. The Illinois statutory provision which was upheld in Love was designed to remove drivers from the road who had been repeatedly convicted for traffic offenses. 431 U.S. 105, 97 S.Ct. 1723. Under the Massachusetts statutory scheme, summary license suspension is not based on any judicial determination of a driver’s danger to the public. Rather, as noted above, it occurs solely because the motorist, whether drunk or sober, refuses to take a chemical test.