Precautionary withdrawal of driving licence due to doubts about fitness to drive as a result of alcohol dependence and dizziness; withdrawal of suspensive effect of the appeal proportionate

Facts

The appellant (born 1946) underwent a routine traffic medical examination on 4 September 2018. The examining physician, Dr. med. B., considered the minimum medical requirements to be met, but noted that the appellant drinks alcoholic beverages at home in the evenings and does not drive afterwards.

The Road Traffic Office of the Canton of Zurich requested an additional medical certificate. On 3 October 2018, Dr. med. B. stated that the appellant suffers from multisensory dizziness with unsteady gait, had fallen twice in each of 2016 and 2017 and once in 2018, and regularly consumes alcohol in the evenings. She left open whether a renewed assessment of fitness to drive was indicated ('I would leave that to you').

At the request of the Road Traffic Office, Dr. med. C. (qualification level 3 or 4) examined the appellant on 20 December 2018. He concluded that fitness to drive was no longer met, citing cognitive deficits of relevance to traffic medicine and clinical indications of alcohol dependence (daily excessive alcohol consumption, yellow discolouration of the sclera on both sides).

On this basis, the Road Traffic Office, by decision of 17 January 2019, provisionally withdrew the appellant's driving licence pending clarification of exclusion grounds, and deprived any appeal of suspensive effect. The Security Directorate of the Canton of Zurich rejected the application to restore suspensive effect on 5 February 2019. The Administrative Court of the Canton of Zurich, 1st Division, single judge, dismissed the appeal by judgment of 6 March 2019 (VB.2019.00101).

The appellant lodged an appeal in public law matters with the Federal Supreme Court and requested, in substance, the annulment of the judgment of the lower court and the grant of suspensive effect. The Administrative Court and the Road Traffic Office requested dismissal. A presidential order of 15 April 2019 rejected the application for suspensive effect of the appeal.

The subject matter of the dispute is solely the granting of suspensive effect to a cantonal appeal against the provisional withdrawal of the driving licence. The appellant complained in particular of a violation of personal liberty (freedom of movement) under Art. 10 para. 2 Cst., since the facts were essentially the same as in FSCA judgment 1C_232/2018, where a provisional withdrawal had been held to be disproportionate.

Considerations

This is an interlocutory decision of a cantonal court of last instance in a public law matter which causes irreparable harm within the meaning of Art. 93 para. 1 lit. a FSCA; the appeal in public law matters is therefore admissible. As this is a provisional measure, under Art. 98 FSCA only a violation of constitutional rights may be raised, and the Federal Supreme Court examines alleged violations of fundamental rights only insofar as they have been raised and substantiated in the appeal (Art. 106 para. 2 FSCA).

Pursuant to Art. 16 para. 1 and Art. 16d para. 1 lit. b and c RTA, the driving licence must be withdrawn if an addiction excludes fitness to drive. Where there are concrete indications casting doubt on fitness to drive, a traffic medical examination must be ordered (Art. 28a para. 1 RTAO). A medical report may likewise justify such doubts under Art. 15d para. 1 lit. e RTA. Where a traffic medical assessment is ordered, the licence is in principle to be provisionally withdrawn under Art. 30 RTAO. Appeals against provisional withdrawals are therefore as a rule not granted suspensive effect, since readmission to traffic cannot be justified while serious doubts about fitness to drive persist.

Exceptionally, a provisional withdrawal may be dispensed with despite doubts. The Federal Supreme Court affirmed such an exception in FSCA judgment 1C_232/2018 for a long-standing licence holder without alcohol problems relevant to traffic, whose alcohol problem was not further substantiated in the medical report. The lower court denied such an exception in the present case, since the appellant had neither demonstrated nor was it apparent that she was particularly sensitive to the measure or that withdrawal of suspensive effect would cause unreasonable hardship. The expert opinion of Dr. med. C. (level 3) carries greater weight than the report of Dr. med. B. (level 1), although the latter also identifies conditions relevant to traffic medicine and does not stand in diametric contradiction.

The Federal Supreme Court considers the complaint of a violation of…