Taimoor Rana is seasoned criminal defense attorney specializing in DUI related cases. He shares his expert legal opinion here « Is it Justified to Forcefully take Blood for Testing?
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- When a police arrest any citizen for DUI then that arrested person has the right to choose that either he or she is willing to take a breath test or a blood test. Of course, there is always a third choice that is to refuse to take either.
Refusal to take test lead to bad consequences
The individual can do this, but it will lead towards bad consequences. These are that he or she will face an increased jail sentence or a longer driver’s license suspension or, in most states, that person who refuse any test has to face both these. Now the problem is that some police officers just won’t accept their refusal.
Now the Law enforcement agencies forcefully take the Test
It has been noticed that now among law enforcement agencies it has become an increasing practice to simply ignore this third choice and they forcefully take blood from the arrestee (although some this practice has been banned by some states).
Blood is obtained for testing and then still the suspect suffers the heavier sentencing for having refused, although they take the test forcefully. So, now the question arises that how much “force” will the courts permit?
The Matter from Legal point of View
Or when we look at this matter from the legal point of view, then drawing blood is considered as a Search of the person and, and therefore, under the Fourth Amendment to the U.S. Constitution this search must be “reasonable” . But still the question is there: What is “reasonable” force?
What does the Supreme Court say About all this?
This issue has been addressed by the United States Supreme Court in Rochin v. California (342 U.S. 165), in that case a drug suspect was unconscious and the police forcefully opened his mouth and then pumped his stomach to get drugs.
The Court said that such a conduct is not permissible, if it “shocks the conscience”. “shocks the conscience” which is not further explained is taken as standard and was later on applied by the Supreme Court in a drunk driving case: the Court said, the blood must be taken under “humane and medically acceptable” circumstances. Schmerber v. California (384 U.S. 757).
The Supreme Court Statement doesn’t explains much
Now what we get are the two phrases these are “Humane and medically acceptable circumstances” and “Shocks the conscience“. Now do you think that these are self explanatory statements? Then who is responsible to explain them to us?
How does the Court of California takes this matter?
Well, Now let me tell you that what police and courts in California have decided what this all means. In Carleton v. Superior Court (216 Cal.Rptr. 890), the California Court of Appeals was confronted with a case in which the arrested citizen was pinned down by six police officers, a needle jammed into him and they withdraw the blood forcibly. The Court saw nothing wrong with this. At that time the court said that this degree of force was near to excessiveness but it was not excessive.
One could wonder that what could be more excessive force than that? But unfortunately no one has the answer to this question.
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