Written by attorney Gregory James Glaser

Is there an absolute right to travel in a car on public roads?

Is there an absolute right to travel in a car on public roads? Answer: No, a car is a large metal machine filled with both toxic and flammable materials, designed to manuever at high speeds in close proximity to other such machines. Courts have found that legislatures may indeed subject such machines and their operators to reasonable safety regulations. This legal guide sets forth legal citations below that rebut any wishful presumption that courts distinguish between the words "travel" and "drive" or "motor vehicle" and "car". The United States Supreme Court has held repeatedly, as it held in Aptheker v. Secretary of State, 378 U.S. 500, 526 (1964), that "The right to travel is not absolute". See also, Hess v. Pawloski (1927) 274 US 352, “Motor vehicles are dangerous machines, and even when skillfully and carefully operated, their use is attended by serious dangers to persons and property. In the public interest the state may make and enforce regulations reasonably calculated to promote care on the part of all, residents and non-residents alike, who use its highways.... The state's power to regulate the use of its highways extends to their use by non-residents as well as by residents." Interestingly, the State of Montana has some of the most developed case law on this topic. In State v. Skurdal (1988) 235 Mont 291, 767 P2d 304, the Supreme Court of Montana made a point of discussing many of the arguments against requiring drivers licenses, and it rejected the argument that if the travel is not "commercial" or not connected to gov’t activity that it is not susceptible to regulation. The court also dismissed the idea that the right to travel is absolute, as it quipped, "This is obviously a growing school of thought which had been misguided [into thinking] the notion of right to travel remains wholly separate from the right or privilege to operate a motor vehicle on the public highways.") See also, Montana v. Turk (1982) 197 Mont. 311 (using the term automobile and motor vehicle interchangeably). See also, State v. Folda (Mont 1994) 267 Mont 523 (holding against a man claiming to be a ‘free’ man who is no longer a 14th Amendment citizen and not required to register his vehicle, wear a seatbelt or maintain liability insurance). City of Salina v. Wisden (Utah 1987) 737 P2d 981 ("Mr. Wisden's assertion that the right to travel encompasses 'the unrestrained use of the highway' is wrong. The right to travel granted by the state and federal constitutions does not include the ability to ignore laws governing the use of public roadways. The motor vehicle code was promulgated to increase the safety and efficiency of our public roads. It enhances rather than infringes on the right to travel. The ability to drive a motor vehicle on a public roadway is not a fundamental right; it is a privilege that is granted upon the compliance with the statutory licensing procedures.") The Constitution permits a state to regulate the operation of motor vehicles on its roads. See, e.g., Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959); South Carolina State Highway Dep't v. Barnwell Bros., Inc., 303 U.S. 177 (1938); Hendrick v. Maryland (1915) 235 US 610 (“In the absence of national legislation covering the subject, a state may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles -- those moving in interstate commerce as well as others. And, to this end, it may require the registration of such vehicles and the licensing of their drivers, charging therefor reasonable fees graduated according to the horsepower of the engines -- a practical measure of size, speed, and difficulty of control. This is but an exercise of the police power uniformly recognized as belonging to the states and essential to the preservation of the health, safety, and comfort of their citizens, and it does not constitute a direct and material burden on interstate commerce. The reasonableness of the state's action is always subject to inquiry insofar as it affects interstate commerce, and in that regard it is likewise subordinate to the will of Congress.") Note that it was the dissenting judge in the case of Escobedo v. State of California, 35 Cal.2d 870 (1950) that wrote, “Since his right to operate an automobile on the public highway is essential to his livelihood, I am constrained to hold that he has been deprived of property without due process of law, and the statute here involved is unconstitutional." By contrast, the majority ruling in the Escobedo case was, “Fundamentally it must be recognized that in this country 'Highways are for the use of the traveling public, and all have ... the right to use them in a reasonable and proper manner, and subject to proper regulations as to the manner of use.' (13 Cal.Jur. 371, § 59.) 'The streets of a city belong to the people of the state, and the use thereof is an inalienable right of every citizen, subject to legislative control or such reasonable regulations as to the traffic thereon or the manner of using them as the legislature may deem wise or proper to adopt and impose.' (19 Cal.Jur. 54, § 407.) 'Streets and highways are established and maintained primarily for purposes of travel and transportation by the public, and uses incidental thereto. Such travel may be for either business or pleasure ... The use of highways for purposes of travel and transportation is not a mere privilege, but a common and fundamental right, of which the public and [35 Cal.2d 876] individuals cannot rightfully be deprived ... [A]ll persons have an equal right to use them for purposes of travel by proper means, and with due regard for the corresponding rights of others.' (25 Am.Jur. 456-457, § 163; see, also, 40 C.J.S. 244-247, § 233.) Notwithstanding such general principles characterizing the primary right of the individual, it is equally well established (as is recognized in the texts above cited) that usage of the highways is subject to reasonable regulation for the public good. In this connection, the constitutionality of various types of financial responsibility laws has been often upheld against contentions that they violated the due process clause of the Fourteenth Amendment. 'The use of the public highways by motor vehicles, with its constant dangers, renders the reasonableness and necessity of regulation apparent. The universal practice is to register ownership of automobiles and to license their drivers. Any appropriate means adopted by the states to insure competence and care on the part of its licensees and to protect others using the highway is consonant with due process.' (Reitz v. Mealey (1941), 314 U.S. 33, 36 [62 S.Ct. 24, 86 L.Ed. 21, 24]; see, also, State v. Price (1937), 49 Ariz. 19, 26 [63 P.2d 653, 108 A.L.R. 1156]; Surtman v. Secretary of State (1944), 309 Mich. 270 [15 N.W.2d 471, 474].)" Bell v. Burson (1971), 402 U.S. 535, 539, "If the statute barred the issuance of licenses to all motorists who did not carry liability insurance or who did not post security, the statute would not, under our cases, violate the Fourteenth Amendment." Berberian v. Petit (RI 1977) 374 A2d 791, "The right to operate a motor vehicle is wholly a creation of state law; it certainly is not explicitly guaranteed by the Constitution, and nothing in that document or in our state constitution has even the slightest appearance or an implicit guarantee of that right. The plaintiff's argument that the right to operate a motor vehicle is fundamental because of its relation to the fundamental right of interstate travel ... is utterly frivolous. The plaintiff is not being prevented from traveling interstate by public transportation, by common carrier, or in a motor vehicle driven by someone with a license to drive it. What is at issue here is not his right to travel interstate, but his right to operate a motor vehicle on the public highways, and we have no hesitation in holding that this is not a fundamental right." Nowlin v DMV (1997) 53 Cal.App.4th 1529, 1535-36, “In Penner v. King (Mo. 1985) 695 S.W.2d 887, plaintiffs refused to disclose their SSN's in applying for their drivers' licenses because they alleged the disclosure violated federal statutes, infringed upon their constitutional right of privacy, and infringed upon their religious freedom. (Id., at p. 888.) The court upheld the SSN requirement on the basis that the SSN is an important means of identification and method of avoiding fraud, as well as integral in locating interstate driving records. (Id., at p. 890.) Therefore, the court held, the regulation is the least restrictive means of achieving a compelling state interest and justified infringement on the plaintiffs' religious beliefs. The court found that the state's right to maintain an accurate roster of those authorized to operate motor vehicles justified any privacy intrusion imposed on the plaintiffs. (Id., at p. 891.) The court also relied on 42 United States Code section 405(c)(2)(C) to hold that the state statute requiring SSN's was valid. (695 S.W.2d at p. 892.) In State v. Loudon (Tenn.Crim.App. 1993) 857 S.W.2d 878, the court expressly followed Penner v. King, supra, 695 S.W.2d 887 in holding that the Tennessee statute requiring applicants for new or renewal drivers' licenses to furnish his or her SSN was constitutional. (857 S.W.2d at p. 882.)… We conclude that the DMV may properly require applicants for new and renewal drivers' licenses to obtain and disclose their SSN's to the DMV under sections 12800 and 1653.5, subdivision (f)(1), (2) and (3)." See also, State v. Wilder, Idaho Ct. of Appeals No.28163 (2003); Penner v. King (Mo. 1985) 695 SW2d 887. State v. D.R. Gibson (1985) 108 Ida. 202, 697 P2d 1216 (man was unable to claim that as a "free man" because he had not "accepted" a drivers license that he is exempt from traffic laws).

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