Schmerber v. California, 384 U.S. 757 (1966)

Paul Stanko

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DUI / DWI Attorney

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In Schmerber v. California, 384 U.S. 757 (1966), the United States Supreme Court held that a forced blood draw from a suspected drunk driver without either a warrant or the consent of the driver did not violate the driver's right against self-incrimination under the Fifth Amendment or his right to be free from unreasonable searches and seizures under the Fourth Amendment. The Court also held that Schmerber's rights to counsel and to due process were not violated by the procedure. Schmerber was convicted in a municipal court of driving under the influence (DUI). He had been hospitalized after being injured in an automobile accident and was arrested at the hospital. An investigating police officer had a blood sample drawn and analyzed, obtaining incriminating evidence of intoxication. The evidence was used against Schmerber at trial despite his objection that it had been taken from him without his consent and over his refusal to provide the blood sample on the advice of counsel. His conviction was affirmed by the California appellate courts. Before the Supreme Court, Schmerber argued that the blood draw violated his rights to due process under the Fourteenth Amendment, to the advice of counsel under the Sixth Amendment, to be free from unreasonable searches and seizures under the Fourth Amendment, and against self-incrimination under the Fifth Amendment. The due process and right to counsel claims were rejected offhand. The Court went on to consider the Fourth and Fifth Amendment issues. The Supreme Court had previously held in Breithaupt v. Abram, 352 U.S. 432 (1957), that a blood draw did not violate the Fifth Amendment in a state court prosecution, but that ruling was based upon the fact that the privilege against self-incrimination had not yet been applied to the states. In the interim, the Court had decided Malloy v. Hogan, 378 U.S. 1 (1964), applying the privilege to the states through the Fourteenth Amendment. In this case, the Court looked at the merits of Schmerber's claim but still decided against him, holding that the privilege applied only to "testimonial" evidence, such as statements and polygraph examinations. Physical evidence such as blood samples is non-testimonial and therefore not covered by the Fifth Amendment. Schmerber's Fourth Amendment claim also required the Court to reconsider Breithaupt v. Abram, which had rejected a Fourth Amendment claim for the reason that the Court had not yet required the states to exclude evidence obtained in violation of the Fourth Amendment. Since that time, the Court had decided Mapp v. Ohio, 367 U.S. 643 (1961), applying the exclusionary rule to the states. This meant that if the blood draw violated Schmerber's right to be free from unreasonable searches and seizures, the evidence could be excluded from evidence at trial. Here again, the Court looked at the merits of Schmerber's claim and found it lacking. The Court held that there was probable cause to believe that Schmerber was intoxicated and that a blood draw would result in relevant evidence. The Court refused to require a warrant in this case because delay would result in destruction of evidence, as the alcohol in Schmerber's bloodstream gradually dissipated. Finally, the Court held that the nature of the search itself was reasonable. The blood draw was done by a trained person in a reasonable manner, creating little if any risk of injury. The Court left open the question of whether a blood draw taken under less favorable circumstances would still be reasonable. This case is important because it addresses the constitutional rights of persons suspected of drunk driving to refuse to provide evidence of guilt to authorities. By holding that blood tests are not testimonial and are therefore not covered by the privilege against self-incrimination, the Court has prevented these tests from being excluded under the Fifth Amendment. The Fourth Amendment does apply to blood draws, however while agreeing that such draws are searches under the Fourth Amendment, the Court has held them to be reasonable. Considering the volume of drunk driving cases nationally, Schmerber is a landmark decision.

Additional Resources

For more information: Kamisar, Yale. “Is the Exclusionary Rule an ‘Illogical’ or ‘Unnatural’ Interpretation of the Fourth Amendment?” 62 Judicature 66 (April 1978). Weeks v. United States, 232 U.S. 383 (1914).

Attorney Paul Stanko-South Bend Lawyer

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