A Sample of Blood Is Not Self-Incriminating Testimony

If a drunken-driving suspect has enough sense to keep his mouth shut, no policeman can force him to admit how much alcohol he has under his belt. But what if the cop demands a blood sample which will offer the same information, and probably more accurately? A sample the man must give, said the Supreme Court. And then it buckled down to explaining just why a man, who has a constitutional right to silence, must deliver his own blood in testimony against himself.

"We hold that the Constitution does not forbid the states minor intrusions into an individual's body under stringently limited conditions," said Justice William Brennan, speaking for the slim 5-to-4 majority that was obviously determined to defend the court's earlier admonitions to police, urging them to make more use of scientific crime-detection equipment. For that was just what a Los Angeles policeman was doing after a 1964 auto accident, when he caught a whiff of booze on Armando Schmerber's breath and ordered a doc tor to give Schmerber a blood test, even though the defendant objected on the advice of his attorney.

Ample Reason. But what about Schmerber's contention that the whole procedure abridged his Fifth Amendment right against self-incrimination and his Fourth Amendment protection against unreasonable search and seizure? The Fifth, answered Brennan, only prohibits "the use of physical or moral compulsion to extort communications" from a person. It does not exclude the "body as evidence when it may be material." Lie-detector tests, Brennan went on, might very well be improper because they involve questioning and verbal testimony.

As for the Fourth Amendment, Brennan said simply that all searches and seizures are not prohibited--only those "not justified in the circumstances" or "made in an improper manner." In this case, he said, the policeman who ordered the blood test had ample reason to believe the defendant was drunk. Had he taken time to get a warrant, the evidence might have vanished. Besides, the blood was taken in a hospital, under hygienic conditions.

Condition of Choice. To many, the decision amounted to a suggestion that the states employ compulsory blood tests in their fight against the growing number of highway deaths. If so, the suggestion was hardly necessary. Many states already employ other methods, such as the drunkometer breathing apparatus. Seventeen have so-called "implied consent laws." meaning that anyone who drives there agrees to submit to a test of some sort or lose his road privileges. And a bill about to become law in California will give drivers a choice between blood, breath or urine tests.

Where such a choice is available, the driver in condition to make it will have to decide on the spot whether he wants the older, more accurate blood test, which is accepted in most courts as reliable evidence, or the breath and urine tests, which may not be as reliable and are more readily challenged by expert witnesses.

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