Bleeding the Fifth

We Cannot be Forced to Testify Against Ourselves but Our Blood Can

Today, about twenty percent of Idaho motorists pulled over on suspicion of driving while intoxicated refuse to take a breathalyzer test. Defense attorneys there have long advised clients to refuse in all cases. As a result, a large percentage of drunken driving cases in the Boise area wind up going to trial, a protracted and expensive resolution.

Back in 1995, Arizona was experiencing the same rate of breathalyzer rejections as Idaho. That state solved its problem by switching to blood tests. The Phoenix Police Department now relies exclusively on blood testing for DUI cases, with three to four hundred blood tests performed every month. The Arizona refusal rate has dropped to a mere eight or nine percent.

Eager to duplicate those results, a federal program is training police officers in parts of Idaho and Texas as phlebotomists, in order to determine if blood testing directly performed by law enforcement can be an effective tool in convicting drunk drivers. If successful, the National Highway Traffic Safety Administration will encourage its use nationwide.

The program has attracted its share of worries and criticisms. The training received by police officers is not as long or extensive as that given to hospital or clinical phlebotomists. While legal experts agree blood tests are generally more accurate than breathalyzers, improperly stored blood can ferment, artificially boosting its alcohol content. Then there is always concern over possible mixed-up or misplaced vials.

Moreover, the program would seem to raise a completely new array of ethical questions and legal challenges. The Fifth Amendment protects defendants from, among other things, “[being] compelled in any criminal case to be a witness against themselves.” Yet is not blood, extracted from a person’s body against their will, compelling part of a person to incriminate themselves?

It is true that police routinely use biological forensic evidence gathered at crime scenes to prove guilt. But the blood, semen, skin cells, hair and other samples used in this manner are broken off or otherwise discarded pieces of a human being; by the very state of their separation they are no longer part of the body. Carelessly leaving behind fingerprints is not the same as being forced to point fingers at ourselves.

The air we exhale into a breathalyzer remained in our lungs for only a few seconds and never became as incorporated with our bodies as our blood cells and plasma. Even the oxygen absorbed by our blood is no more a part of us than any alcohol we ingested.

In spite of this, you will not hear much protest about legal rights to refuse alcohol level blood tests. Incredibly, while most state and federal courts withhold the right of police to coerce us to blow into a tube against our will, the 1966 Supreme Court case of Schmerber v. California long ago established their right to draw our blood into a tube, even against our will.

While driving his car, Armando Schmerber got into an accident requiring his treatment at a hospital. A police officer smelled liquor on his breath and directed a physician to take a blood sample, despite Schmerber’s refusal to give consent. The blood test indicated intoxication and the court admitted this as evidence at trial, resulting in Schmerber’s conviction. Schmerber sued to overturn, claiming denial of due process, privilege against self-incrimination, and the right not to be subjected to unreasonable search and seizure.

The Warren Court, despite its reputation for liberality, voted five to four to uphold the conviction. Writing for the majority, Justice William Brennan noted the requirement by Miranda for government “seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth” in order to “maintain a fair state-individual balance.”

Despite this, Brennan maintained, “The privilege protects an accused only from being compelled to testify against himself or otherwise provide the State with evidence of a testimonial or communicative nature and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.”

The dissenting opinions in this ruling are well worth noting.

Chief Justice Earl Warren pointed back to his dissenting opinion in the 1957 case of Breithaupt v. Abram, in which a suspected drunk driver, receiving treatment at a hospital, had blood extracted while unconscious on a police officer’s orders.

In that case, Warren wrote, “We [are not] concerned with the defendant's guilt or innocence. The sole problem is whether the proceeding was tainted by a violation of the defendant's Constitutional rights . . . One may consent to having his blood extracted or his stomach pumped and thereby waive any due process objection . . . But where there is no affirmative consent, I cannot see that it should make any difference whether one states unequivocally that he objects or resorts to physical violence in protest or is in such condition that he is unable to protest.”

Another dissent, written by Justice Hugo Black and joined by Justice William O. Douglas, attacks the reasonableness of Brennan’s logic. “To reach the conclusion that compelling a person to give his blood to help the State convict him is not equivalent to compelling him to be a witness against himself strikes me as quite an extraordinary feat.”

Black went on to argue that the results of the blood test were “testimonial” in nature because “The sole purpose of this project which proved to be successful was to obtain testimony from some person to prove that petitioner had alcohol in his blood at the time he was arrested.” Likewise, the results were “communicative” because “the analysis of the blood was to supply information to enable a witness to communicate to the court and jury that petitioner was more or less drunk.”

In a third dissent, Justice Abe Fortas was plainer and more direct, simply asserting, “In my view, petitioner's privilege against self-incrimination applies.”

Over time, the court as a whole apparently came to agree with Warren’s characterization of invading the body for evidence as “brutal” and “offensive.” In the 1985 case of Winston v. Lee, Rudolph Lee shot a shopkeeper whose store he was robbing but also received a gunshot wound in the process. Police found him eight blocks from the scene and took him to the hospital, where the shopkeeper identified him.

The Commonwealth of Virginia then asked a state court to order Lee undergo surgery to remove a bullet lodged under his left collarbone, asserting it was evidence of Lee's guilt. Expert medical testimony assured the surgery necessitated only a small incision, required only local anesthesia, and posed “no danger.” Lee protested and the court initially agreed but he went on to lose in appeal, despite the fact that the bullet subsequently proved lodged deeper than originally believed, requiring general anesthesia and introducing risk.

The Berger Court, not so noted for its liberality, held that a compelled surgical intrusion into an individual's body for evidence was unreasonable under the Fourth Amendment, even if likely to produce evidence of a crime. The majority opinion concluded, “The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach” and invoked a “balancing test” established by Schmerber.

The author of this opinion was none other than Justice Brennan. Nearly a full two decades later, he still discerned some bright line in which breaking a person’s skin with a scalpel against their will was a gross indignity and violation of their rights, even if done in order to prove a crime, but breaking that same skin with a needle posed no problems so long as a police office felt the person in question looked a little tipsy.

We all know it is unsafe to “drink a fifth” and then drive. Those whom police catch so doing deserve punishment, especially if their recklessness causes harm to others. Likewise, anyone in our country who stands accused of a crime may “plead the Fifth,” thus making their conviction more difficult for law enforcement. This is because the Founding Fathers understood justice is best guaranteed when prosecuting the guilty is balanced against protecting the innocent.

In light of this, it seems inconsistent at best that the law knowingly ignores our right to the latter Fifth by allowing police to forcibly take our blood, but not our breath, in an attempt to determine whether we imbibed in too much of the former fifth.