(dissenting).
I disagree with my colleagues’ judgment that this case is substantially distinguishable from Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977). In that case the Court upheld the Illinois Driver Licensing Law which, under “point system” regulations adopted in Illinois by the Secretary of State, called for immediate suspension without prior hearing of the licenses of those whose licenses had already been suspended for moving vehicle violations on three occasions within ten years. In the present case we are confronted with a Massachusetts law which, in order to compel those arrested for drunken driving to take an immediate chemical or breath test, penalizes the refusal to take such a test by a 90-day license suspension. Like the Illinois law, the Massachusetts law calls for a suspension only upon the occurrence of a simple, objectively-ascertainable event: i. e. a refusal to take a chemical or breath test, as certified to under penalties of perjury by the officer witnessing the refusal. And, going beyond any safeguards in the Illinois law, Massachusetts provides for a full hearing commencing, though not necessarily *1162ending, the very same day the license is surrendered.1
It was stipulated1a that of 884 traffic fatalities in Massachusetts in 1975, 283 resulted from accidents in which alcohol was determined as the attributing cause. It was further stipulated that approximately 300 people were refusing to submit to breath analyses tests in Massachusetts every month. Given the state’s compelling interest in lessening the carnage on its highways caused by intoxicated drivers, and given also the statute’s minimal restrictions on personal liberties, I can see no basis whatever for declaring it unconstitutional. Under Love and Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), I would vacate the injunction and dismiss the complaint.
My colleagues make much of the reference in Love to a special provision for hardship and for holders of commercial licenses.2 Since plaintiff is not a commercial licensee the latter is inapposite, but he would, in the Illinois scheme, once his license was suspended, be eligible, as under Massachusetts law he is not, to apply for a limited hardship permit.
There are two answers to this attempted distinction. First, Massachusetts, unlike Illinois,3 affords a licensee a hearing com*1163mencing the very day he surrenders his license. To be sure, if witnesses are required, a continuance may be needed to bring in the material witnesses, but if the issue can be resolved without witnesses it can be disposed of the same day, and, if not, there is no reason to suppose that the taking of evidence will not proceed with reasonable dispatch. In Illinois, on the other hand, the licensee may have to wait for some time after suspension of his license for a hearing. His only opportunity is to apply after suspension for a hardship permit (the consideration and granting of which may, presumably, take some time). In Massachusetts, one gets a hearing commencing the same day the license is surrendered; and the features my brothers think most essential — i. e. alerting the Registrar to the possibility that suspension is unwarranted and would be unjust — can take place that very day and could, in the case of clerical or other obvious errors, result in return of the license then and there. (See Note 11, the court’s opinion.) Thus to the extent the Illinois hardship provision is seen as adding to the suspended licensee’s due process rights,4 the opportunity in Massachusetts for a hearing commencing the same day that the license is surrendered seems to me not only a fully adequate counterpart but quite possibly an improvement.
The second reason for doubting that the Illinois hardship provision adequately distinguishes Love is that that provision, while cited, was but one of a number of factors discussed in Love, and hardly the most crucial. The Court pointed out that “a driver’s license may not be so vital and essential as are social insurance payments [dealt with in Eldridge ] on which the recipient may depend for his very subsistence”. Id. (Under Eldridge a social security beneficiary may be deprived of benefits for as much as a year or more while hearings take place.) The Court went on to say, “Moreover, the risk of an erroneous deprivation in the absence of a prior hearing is not great.” The same is true here. The only question is the existence or non-existence of a readily observable fact. One is hard put to think of a genuine factual or legal issue which would exist in the generality of cases. To be sure, the issue plaintiff asserts here, whether an initial refusal followed by a later request to take the test qualifies as a refusal, may be the rare exception. If an arrestee can wait until his blood or breath levels show less alcohol, the usefulness of the test is diminished; on the other hand, the Registrar or state courts may find it unreasonable for the police not to accommodate a change of heart made in good faith with reasonable promptness. Once settled, however, such a matter of statutory interpretation would be nonrecurring; and it is difficult to imagine similar issues that are likely to arise in the administration of this utterly simple statute.
To be sure, a driver might assert that the police had required the test after arresting him without cause. But it is hard to imagine a sober driver refusing to take the test whether or not there was cause for his arrest; if improperly arrested, he would take the test and sue for false arrest, not put his license in jeopardy. And if the licensee feels that he is the victim of false police affidavits, he would be raising a claim to which the Illinois point system is equally vulnerable. If a police officer or *1164bureaucrat is willing deliberately to commit perjury, the citizen’s ultimate recourse must be under various state and federal tort and criminal statutes. In 999 cases out of 1,000 I cannot see what there will ever be to try concerning the fact of refusal to take a chemical or blood test. And conceding that, on a rare occasion, that one meritorious case will arise, the opportunity for immediate hearing which Massachusetts affords seems to me to go far to obviate hardship.5 While such a rare case would likely involve disputed facts requiring the taking of evidence, and thus would involve surrender of the license in the interim, it does not seem unfair to require a licensee who, on the sworn affidavits of the officers has declined to take the test, to put up with that hardship. To strike the balance the other way— to permit people to litigate such an unlikely question while retaining their licenses'— seems to me to impose an unfair added burden upon the society that ultimately pays both the costs of drunken driving and the salaries of the additional registry officials needed to administer a more elaborate system.
Finally, I have great difficulty with my brothers' confident assertion that “nothing in our opinion burdens the Commonwealth’s valid interest in removing unsafe drivers from the highway.” This may be their belief, but it clearly is not shared by the Massachusetts Legislature, the Registrar of Motor Vehicles, or the Attorney General, all of whom are charged, as the federal courts are not, with the primary duty to make this sort of judgment. As I argued in my earlier dissenting opinion, and as the Love Court has said,
“. . . the substantial public interest in administrative efficiency would be impeded by the availability of a pretermination hearing in every case. Giving licensees the choice thus automatically to obtain a delay in the effectiveness of a suspension or revocation would encourage drivers routinely to request full administrative hearings . . . .” 431 U.S. at 114, 97 S.Ct. at 1728.
My brothers seek to avoid the implications of this statement by stating that they do not require nor view as constitutionally necessary “a pre-suspension evidentiary hearing”. They concur with plaintiff’s counsel who, in final argument, made the statement “we do not insist upon a hearing — just notice and an opportunity to respond.” Plaintiff forgets, however, that in arguing the inadequacy of the hearing which the Registry offers when a licensee surrenders his license, his principal argument was that the hearing when commenced was non-evidentiary, and hence incapable of immediately resolving the factual dispute which had arisen. I suggest that a non-evidentiary pre-suspension hearing would have been totally useless to plaintiff. His case can only be resolved in light of testimony, as he seemed to concede. See note 1 supra. Individuals such as plaintiff who wish to assert a factually disputed claim will gain nothing from a non-evidentiary hearing. All a non-evidentiary hearing prior to suspension would do is cure simple mix-ups. But this function is perfectly well accomplished by the non-evidentiary hearing which a licensee may obtain the day he surrenders his license. What Massachusetts now provides — the opportunity for a full hearing beginning the very day the driver hands in his license — seems to me to strike a reasonable balance between the individual’s interests and those of the state.
*1165It is worth focusing, moreover, on the problem faced by Massachusetts. It is dealing with a problem — arrested drivers refusing to take the test — which even under the challenged Massachusetts system arises in that state 300 times a month. Meaningful machinery to deal with the problem has to be capable of mass administration. Intoxicated drivers can often talk their way out of a drunken driving conviction, in court, if the police do not have in hand the results of a scientific test taken at the moment of arrest. To the extent drivers are afforded increased opportunities before suspension to delay and litigate any suspension, they will be encouraged to try their chances with a refusal. Even if finally required to forego the license (for 90 days) much time will have transpired, and the state will have had to expend time and money in what in virtually all instances will be useless administrative proceedings invoked simply to buy time or in the hope that something favorable will turn up.
I think that Massachusetts could rationally determine that the procedure in question was the most practical and effective one. The non-evidentiary pre-suspension hearing my brothers seem to require will add no measurable protection to the present system; if, on the other hand, they mean to require a hearing that will enable the Registrar to delay suspension until after investigation into contested facts, they are proposing something which will constitute a serious encumbrance. Since the present system is fundamentally fair, since it is devised to deal with a problem of compelling importance to the state, since it was adopted by the people (most of whom drive) through their legislators (most of whom drive), and since the potential for hardship to an innocent person seems altogether minimal in comparison with the interests served, I think the Massachusetts law should be sustained. While there are inconsequential differences between it and the Illinois system at issue in Love, the principles in Love seem to me dispositive.
I would allow the motion for reconsideration, vacate the injunction, and dismiss the complaint.
. My brothers, while agreeing that there is provision for an immediate hearing with counsel at the time of the license surrender (see Note 11 of the court’s opinion written by Judge Freedman and concurred in by Judge Tauro), now assert that “hearings are rarely if ever held on the day the license is surrendered”. They apparently base this assertion on the fact that if testimony has to be taken, the hearing will be continued until the presence of necessary witnesses, such as the police officers, can be secured. But postponing the evidentiary part of the hearing does not alter the fact that a nonevidentiary hearing, with counsel, is available to the licensee on the same day the license is surrendered. (See Note 11 of my brothers’ main opinion, which the transcript fully supports.) As Mr. Hagopian, plaintiff’s attorney stated, “If you walk into the Registry down there with your license and give it to the Registrar, you get a hearing right away.” (Tr. 11) “[A]s I understand the statutory procedure, under § (g) you can get an immediate hearing before the Registrar.” (Tr. 14) Mr. Hagopian’s objection to this procedure (besides the fact that it comes, in his view, too late) is that so much of the hearing as is available on the day the license is surrendered is non-evidentiary. He argues, “You are not going to get your license back that day if you contest the factual issues unless there is something defective upon the face of the affidavit or report of refusal form.” Still, the opportunity to appear before the Registrar’s delegate with counsel is nonetheless a “hearing”, albeit a non-evidentiary one, affording the license holder an opportunity to point out errors to the Registrar which do not require the taking of evidence to resolve. And while there is no evidence as to when in time the opportunity to present testimony in the continued proceeding may normally be expected, there is no reason to assume that this will not occur with reasonable expedition, depending upon the availability of witnesses, the schedule of the hearing officer, and the usual consideratiohs that affect the holding of hearings of this nature.
. Although plaintiff did not execute the stipulations as to facts, Mr. Hagopian stated, in response to my query as to whether there was an agreed statement of facts, “That is correct.” (Tr. 3)
. Under the Illinois law and regulation, commercial licensees are allowed 5 rather than 3 offenses before mandatory suspension. Eligibility for relief under that section is not automatic, but requires the commercial driver whose license “is suspended”, Dixon v. Love, 431 U.S. 105, note 7, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), to establish eligibility after surrendering his license. Illinois law also allows any driver whose license is suspended or revoked to apply for a restricted hardship permit to drive between his residence and his place of employment or within other proper limits, but only at the end of a post-suspension review proceeding which occurs only “as early as practical” after the already suspended licensee has requested it. Id.; see Ill.Ann.Stat. ch. 95'A, § 6-206(c)(3) (Smith-Hurd Supp. 1977). My colleagues are thus in my view mistaken in their statement, “Unlike the situation in Dixon, Massachusetts provides no opportunity for emergency relief prior to suspension.” Massachusetts provides no such opportunity, but neither does Illinois.
. Under the Illinois plan, the suspended licensee was only entitled to a hearing “as early as practical” within 20 days after requesting one. In Massachusetts, by contrast, a hearing, with attorney present, is available commencing immediately (see note 1). At such a hearing, according to the stipulated facts, “the hearing officer examines the Report of Refusal to Submit to Chemical Test to determine that it is complete and complies with the requirements *1163of Ch. 90 § 24(l)(f). If the Report is not complete or does not comply, the hearing officer returns the driver’s license in hand to the licensee. If the Report is complete and complies, the burden is on the licensee to show that one of the factual issues set forth in Ch. 90 § 24(l)(g) was in the negative, i. e., there was no probable cause, no arrest, or no refusal to submit. The hearing officer will adjourn the hearing at his own request, or upon the request of the licensee, to permit the police officers or other witnesses to be brought in for questioning, or for counter affidavits to be submitted, or to allow the hearing officer to interview witnesses in the field.
“Witnesses at a hearing may be questioned by the hearing officer, or a licensee, or his attorney. From an adverse decision of the Registrar, a licensee may take an appeal to the Board of Appeals pursuant to G.L. Ch. 90 § 28.”
. I take it there is no claim that the Constitution grants any substantive right to receive a hardship driver’s permit notwithstanding a refusal to submit to a chemical or breath test.
. The Love Court recognized the possibility of occasional clerical error but felt this did not outweigh the state’s interest in summary procedures. Overall, the Illinois point scheme, of which Love upheld one small feature, is far more complicated than the very simple Massachusetts statute now before us, inviting more administrative errors. Plaintiff’s claim here is not, of course, based on administrative error at all. It raises a question that plainly could not have been resolved in the simple, non-evidentiary type of presuspension hearing which is all my brothers say is constitutionally necessary before a suspension. Simple errors of the type my brothers’ procedure might eliminate can be solved under the existing Massachusetts law either by informal communication between the driver and the police and/or registrar, or else at the non-evidentiary hearing available the same day the driver turns in his license.