By Mohinder S, Mann
Can the police by force take your blood where you are suspected of driving under the influence of alcohol?
The Ninth Circuit court recently held that a suspect’s Fourth Amendment rights were violated when a police officer held him down so that blood could be taken from his arm after he was arrested on suspicion of drunk driving. The suspect had agreed to take the breath test but had refused the blood test because he said he was afraid of needles.
Based upon this ruling, a police officer will not be able to force a Suspect to give a blood test where an alternative test is requested by the suspect.
Although the court’s opinion in the case of Hammer y v. Gross is unclear as to when and how much force the police can use, the majority opinion states that “blood cannot be extracted from a drunk who refuses to have it done, and that is particularly so if the drunk is willing to become the least bit physical about it.”
It should be noted that under the California Driver Consent Law a driver suspected of driving under the influence of alcohol and/or drugs is required to submit to blood, breath, or urine test. A refusal to so comply can result in loss of the driving privilege.
Mohinder S, Mann is an attorney with the Mann Law Firm, 111 N. Market St, San Jose, CA 95113, and phone (408) 287-1600. He will be writing from time to time on topics of general and legal information for the benefit of India-West readers. For specific legal advice, consult your lawyer.
Article extracted from this publication >> June 21, 1991
