384 U.S. 757 (1966), 658, Schmerber v. California

Docket Nº:No. 658
Citation:384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908
Party Name:Schmerber v. California
Case Date:June 20, 1966
Court:United States Supreme Court

Page 757

384 U.S. 757 (1966)

86 S.Ct. 1826, 16 L.Ed.2d 908




No. 658

United States Supreme Court

June 20, 1966

Argued April 25, 1966




Petitioner was hospitalized following an accident involving an automobile which he had apparently been driving. A police officer smelled liquor on petitioner's breath and noticed other symptoms of drunkenness at the accident scene and at the hospital, placed him under arrest, and informed him that he was entitled to counsel, that he could remain silent, and that anything he said would be used against him. At the officer's direction, a physician took a blood sample from petitioner despite his refusal on advice of counsel to consent thereto. A report of the chemical analysis of the blood, which indicated intoxication, was admitted in evidence over objection at petitioner's trial for driving while intoxicated. Petitioner was convicted, and the conviction was affirmed by the appellate court, which rejected his claims of denial of due process, of his privilege against self-incrimination, of his right to counsel, and of his right not to be subjected to unreasonable searches and seizures.


1. Breithaupt v. Abram, 352 U.S. 432, in which a claim of denial of due process of law was rejected in a similar situation is controlling as to the due process aspect. Pp. 759-760.

2. The privilege against self-incrimination is not available to an accused in a case such as this, where there is not even a shadow of compulsion to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature. Pp. 760-765

3. Petitioner's limited claim, that he was denied his right to counsel by virtue of the withdrawal of blood over his objection on his counsel's advice is rejected, since he acquired no right merely because counsel advised that he could assert one. Pp. 765-766.

4. In view of the substantial interests in privacy involved, petitioner's right to be free of unreasonable searches and seizures applies to the withdrawal of his blood, but, under the facts in this case, there was no violation of that right. Pp. 766-772.

(a) There was probable cause for the arrest, and the same facts as established probable cause justified the police in requiring

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petitioner to submit to a test of his blood alcohol content. In view of the time required to bring petitioner to a hospital, the consequences of delay in making a blood test for alcohol, and the time needed to investigate the accident scene, there was no time to secure a warrant, and the clear indication that, in fact, evidence of intoxication would be found rendered the search an appropriate incident of petitioner's arrest. Pp. 770-771.

(b) The test chosen to measure petitioner's blood alcohol level was a reasonable one, since it was an effective means of determining intoxication, imposed virtually no risk, trauma or pain, and was performed in a reasonable manner by a physician in a hospital. P. 771.


BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Petitioner was convicted in Los Angeles Municipal Court of the criminal offense of driving an automobile while under the influence of intoxicating liquor.1 He had been arrested at a hospital while receiving treatment for injuries suffered in an accident involving the automobile that he had apparently been driving.2 At the direction of a police officer, a blood sample was then withdrawn from petitioner's body by a physician at the hospital.

Page 759

The chemical analysis of this sample revealed a percent by weight of alcohol in his blood at the time of the offense which indicated intoxication, and the report of this analysis was admitted in evidence at the trial. Petitioner objected to receipt of this evidence of the analysis on the ground that the blood had been withdrawn despite his refusal, on the advice of his counsel, to consent to the test. He contended that, in that circumstance, the withdrawal of the blood and the admission of the analysis in evidence denied him due process of law under the Fourteenth Amendment, as well as specific guarantees of the Bill of Rights secured against the States by that Amendment: his privilege against self-incrimination under the Fifth Amendment; his right to counsel under the Sixth Amendment; and his right not to be subjected to unreasonable searches and seizures in violation of the Fourth Amendment. The Appellate Department of the California Superior Court rejected these contentions and affirmed the conviction.3 In view of constitutional decisions [86 S.Ct. 1830] since we last considered these issues in Breithaupt v. Abram, 352 U.S. 432 -- see Escobedo v. Illinois, 378 U.S. 478; Malloy v. Hogan, 378 U.S. 1, and Mapp v. Ohio, 367 U.S. 643 -- we granted certiorari. 382 U.S. 971. We affirm.



Breithaupt was also a case in which police officers caused blood to be withdrawn from the driver of an automobile involved in an accident, and in which there was ample justification for the officer's conclusion that the driver was under the influence of alcohol. There, as here, the extraction was made by a physician in a simple, medically acceptable manner in a hospital environment.

Page 760

There, however, the driver was unconscious at the time the blood was withdrawn, and hence had no opportunity to object to the procedure. We affirmed the conviction there resulting from the use of the test in evidence, holding that, under such circumstances, the withdrawal did not offend "that `sense of justice' of which we spoke in Rochin v. California, 342 U.S. 165." 352 U.S. at 435. Breithaupt thus requires the rejection of petitioner's due process argument, and nothing in the circumstances of this case4 or in supervening events persuades us that this aspect of Breithaupt should be overruled.



Breithaupt summarily rejected an argument that the withdrawal of blood and the admission of the analysis report involved in that state case violated the Fifth Amendment privilege of any person not to "be compelled in any criminal case to be a witness against himself," citing Twining v. New Jersey, 211 U.S. 78. But that case, holding that the protections of the Fourteenth Amendment do not embrace this Fifth Amendment privilege, has been succeeded by Malloy v. Hogan, 378 U.S. 1, 8. We there held that

[t]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement -- the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will,

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and to suffer no penalty . . . for such silence.

We therefore must now decide whether the withdrawal of the blood and admission in evidence of the analysis involved in this case violated petitioner's privilege. We hold that 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,5 and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.

It could not be denied that, in requiring petitioner to submit to the withdrawal and chemical analysis of his blood, the State compelled him to submit to an attempt to discover evidence that might be used to prosecute him for a criminal offense. He submitted only after the police officer rejected his objection and directed the physician to proceed. The officer's direction to the physician to administer the test over petitioner's objection constituted compulsion for the purposes of the privilege. The critical question, then, is whether petitioner was thus compelled "to be a witness against himself."6

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If the scope of the privilege coincided with the complex of values it helps to protect, we might be obliged to conclude that the privilege was violated. In Miranda v. Arizona, ante, at 460, the Court said of the interests protected by the privilege:

All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government -- state or federal -- must accord to the dignity and integrity of its citizens. To maintain a "fair state-individual balance," to require the government "to shoulder the entire load," . . . to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the 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.

The withdrawal of blood necessarily involves puncturing the skin for extraction, and the percent by weight of alcohol in that blood, as established by chemical analysis, is evidence of criminal guilt. Compelled submission fails on one view to respect the "inviolability of the human personality." Moreover, since it enables the State to rely on evidence forced from the accused, the compulsion violates at least one meaning of the requirement that the State procure the evidence against an accused "by its own independent labors."

As the passage in Miranda implicitly recognizes, however, the privilege has never been given the full scope which the values it helps to protect suggest. History

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and a long line of authorities in lower courts have consistently limited its protection to situations in which the State seeks to submerge those values by obtaining the evidence against an accused through

the cruel, simple expedient of compelling it from his own mouth. . . . In sum, the privilege is fulfilled only when the person is guaranteed the right "to remain silent unless he chooses to speak in...

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