Some time ago I commented on the increasingly rough tactics used by police to incapacitate a nonconsenting DUI suspect while a nurse or blood technician draws a blood sample. More recently, I discussed the approach now being used in Utah: doing away with the doctor, nurse or medical technician and simply letting the officer stick a needle into the suspect himself out on the highway. (It takes little imagination to envision the scene: the struggling suspect thrown across the dirty hood of his car, his hands cuffed behind his back, the officer with a baton in one hand and a hypodermic needle in the other….)
I’ve received a number of inquiries from attorneys concerning that post, advising me that their own states are now planning to emulate Utah’s new cost-effective approach and asking for any ideas on how to challenge it. Frankly, I would much rather cross-examine a cop on the witness stand about his medical training, experience and technique than I would a doctor, nurse or medical tech. But it should never get that far……
In 1966, the United States Supreme Court in Schmerber v. California was confronted with the issue of whether drawing blood from a DUI suspect over his objection constituted a violation of the Fourth Amendment. In that case, the suspect had been taken to a hospital for a blood draw; the suspect refused to consent to the test, but did not resist as a physician withdrew a sample. The Court affirmed the conviction, holding that a nonconsensual draw without a warrant was constitutionally permissible under the circumstances. But in doing so, the Court clearly distinguished the circumstances which made it permissible:
…Finally, the record shows that the test was performed in a reasonable manner. Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment ‘ for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain….
The Court ended its opinion with the following admonition:
We thus conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions. 348 U.S. 771
‘Seems clear to me…..