SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

long as probable cause exists to believe that the defendant was
driving while intoxicated, a formal arrest is not a prerequisite to a
warrantless seizure of a blood sample. (People v. Trotman (1989)
214 Cal.App.3 rd 430, 435; People v. Deltoro (1989) 214
Cal.App.3 rd 1417, 1422, 1425.)
Intrusions into the Human Body: Of all the areas where a person has a
legitimate “reasonable expectation of privacy” protecting the person from
governmental intrusions, none, perhaps, is greater than that person’s own
body. (See Winston v. Lee (1985) 470 U.S. 753, 759 [84 L.Ed.2 nd 662];
“A compelled surgical intrusion into an individual's body for evidence . . .
implicates expectations of privacy and security of such magnitude that the
intrusion may be ‘unreasonable;’ even if likely to produce evidence of a
crime.”)
Searches which “shock the conscience,” or which are unreasonable
under the circumstances, are not allowed. (Rochin v. California
(1952) 342 U.S 165 [96 L.Ed. 183]; Winston v. Lee, supra, at pp.
760-763 [84 L.Ed.2 nd at pp. 668-671].)
However, lesser intrusions into a human body may, under
some circumstances, be upheld with a sufficient exigency.
(Schmerber v. California (1966) 384 U.S. 757, 768 [16
L.Ed.2 nd 908, 918]; e.g., blood withdrawal.)
“The interests in human dignity and privacy” forbid intrusions into
the human body “on the mere chance that desired evidence might
be obtained.” (Schmerber v. California, supra; People v.
Bracamonte (1975) 15 Cal.3 rd 394, 402-405.)
Factors: In determining the lawfulness of such an intrusion, such
as the forced extraction of blood, the court will consider:
The degree of resistance by the suspect.
The severity of the crime at issue.
Whether the suspect posed an immediate threat to the
safety of the officers or others.
Whether the police refused to respect a reasonable request
to undergo a different form of testing.
The degree of the authorities’ need for the evidence.
© 2012 Robert C. Phillips. All rights reserved
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