Nelson v. City of Irvine

• Decision Date: 06 May 1998
• Docket Number: No. 96-56813,96-56813
• Citation: 143 F.3d 1196
• Parties: 98 Cal. Daily Op. Serv. 3406, 98 Daily Journal D.A.R. 4706 David Scott NELSON; Mauricio Baez Fernandez, on behalf of themselves and on behalf of others similarly situated, Plaintiffs-Appellants, v. CITY OF IRVINE, Chief of Police Charles S. Brobeck, Officer Troy Gielesh, Officer Shirley Sumner, Officer Robert Landman, California Forensic Phlebotomy, Inc. Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1196

143 F.3d 1196

98 Cal. Daily Op. Serv. 3406, 98 Daily Journal

D.A.R. 4706

David Scott NELSON; Mauricio Baez Fernandez, on behalf of themselves and on behalf of others similarly situated, Plaintiffs-Appellants, v. CITY OF IRVINE, Chief of Police Charles S. Brobeck, Officer Troy Gielesh, Officer Shirley Sumner, Officer Robert Landman, California Forensic Phlebotomy, Inc. Defendants-Appellees.

No. 96-56813.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 6, 1998.

Decided May 6, 1998.

Jeffrey Wilens, Irvine, California, Barry T. Simons, Laguna Beach, California, for plaintiffs/appellants.

Jeffrey Wertheimer, Rutan & Tucker, LLP, Costa Mesa, California, for defendants/appellees.

Appeal from the United States District Court for the Central District of California; Gary L. Taylor, District Judge, Presiding. D.C. No. CV-96-00199-GLT.

Before: BOOCHEVER and KLEINFELD, Circuit Judges, and TANNER, District Judge. ^*

BOOCHEVER, Circuit Judge:

David Nelson and Mauricio Fernandez, on behalf of themselves and others similarly situated (hereafter collectively "Nelson"), appeal from the district court's judgment on the pleadings in their 42 U.S.C. § 1983 action against the City of Irvine, its chief of police, and several individual officers (hereafter collectively "City of Irvine"), alleging that following their arrests for driving under the influence of alcohol they were coerced into submitting to blood tests in order to determine their blood alcohol level, and deprived of the statutorily mandated option to take a breath or urine test instead.

I. Facts and Procedural History

The plaintiffs' motion for class certification was pending when the district court dismissed this suit on the pleadings. The claims of the proposed class representatives are described in the first amended complaint, and for purposes of this appeal we accept those allegations as true. McGann v. Ernst & Young, 102 F.3d 390, 392 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1460, 137 L.Ed.2d 564 (1997).

Irvine Police Department officer Troy Gielish arrested David Nelson on suspicion of driving under the influence of alcohol ("DUI"). En route to the police station, Officer Gielish radioed ahead for a blood technician, and asked Nelson if he "had a problem" with taking a blood test. Nelson was not advised that he had a choice of a blood, urine, or breath test and, as he interpreted the officer's question as rhetorical, he felt he had no choice in the matter. Nelson submitted to the blood test without offering any verbal or physical resistance, but had he been given a choice, he now alleges he would have selected a breath or urine test.

Officer Gielish stopped Mauricio Fernandez on suspicion of DUI and asked him to blow into a Preliminary Alcohol Screening Device to determine whether or not he was intoxicated. Officer Gielish advised Fernandez that the results of the preliminary breath test would not be admissible in court regardless of the outcome. Fernandez asked Officer Gielish to list his options. Officer Gielish told him, "a blood, urine, or breath test." Fernandez replied he would take whatever breath test he had to. Fernandez flunked the preliminary breath test, so Officer Gielish arrested him and took him to the station. The officer told Fernandez that a technician was "going to get a blood sample." Fernandez did not verbally or physically resist the taking of the sample. Fernandez alleges that, had he been allowed to exercise his free choice, he would have selected a breath or urine test.

The claims of other plaintiffs provide variations on the same theme. David Tyler was not informed by arresting Irvine P.D. officers that he had a choice of tests, and was told that if he did not cooperate in the taking of a blood test he would be held in jail over the weekend. Vicki Caruso was not informed by Irvine P.D. officers that she had a choice of blood-alcohol tests, and was told she had to submit to a blood test. Jeffrey Capler initially agreed to take a blood test but then changed his mind and informed the arresting officer that he wanted to take a breath test. Although a breath test machine was available, and the blood sample had not yet been taken, the officer told Capler that he could not change his mind and must submit to a blood test. Kristi Giordano was initially permitted to take a breath test, but the officer stopped her in the middle, told her she was doing it wrong, and required her to take a blood test instead. A blood sample was taken against her will. Jeffrey Chancellor was told that if he submitted to a blood test he would be released in four hours, but if he selected a urine test he would not be released for at least 17 hours. He was not offered a breath test. He submitted to a blood test.

Richard Heil was arrested for DUI, transported to the station, and told he had to provide a blood sample. He claims he was not advised of his choice of tests, but instead was told that if he did not provide a blood sample voluntarily, he would be strapped to a chair so that a sample could be forcibly taken. Heil was told that if he resisted and the officer had to call for assistance, he would be jailed for 48 hours. Heil submitted to a blood test. He claims that had he been offered a choice, he would have selected a breath or urine test.

There is nothing in the first amended complaint to suggest that Irvine P.D. officers obtained warrants before administering the blood tests in any of the cases described.

This court reviews de novo Rule 12(c) judgments on the pleadings. McGann, 102 F.3d at 392. A judgment on the pleadings is properly granted when, taking all the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law. Id.

II. Constitutional Claims

A. Fourth & Fourteenth Amendments

To pass constitutional muster under the Fourth Amendment a search must be reasonable. Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996). Generally, a search must also be supported by probable cause, and must be backed up by a warrant, or the circumstances must fit an exception to the warrant requirement. Winston v. Lee, 470 U.S. 753, 759-61, 105 S.Ct. 1611, 1615-17, 84 L.Ed.2d 662 (1985). It is undisputed that the police had probable cause for the searches in question. At issue, then, is whether the blood tests were reasonable, and whether "exigent circumstances" or some other exception to the warrant requirement existed to excuse the police from obtaining warrants. We address each of these two distinct inquiries in turn.

1. Reasonableness

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Supreme Court held that blood extraction from an arrestee who had refused a breath test is reasonable. However, the Court expressly reserved the question whether the government could take blood when other tests were available or requested:

Petitioner is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the "Breathalyzer" test petitioner refused.... We need not decide whether such wishes would have to be respected.

Id. at 771, 86 S.Ct. at 1836. The Court also emphasized that its holding "in no way indicates that [the Constitution] permits more substantial intrusions, or intrusions under other conditions." Id. at 772, 86 S.Ct. at 1836. Thus, Schmerber did not reach the issue whether it violates the Fourth Amendment's reasonableness command to require an arrestee, who has expressed a preference for, or consented to, an available breath or urine test, to submit to a blood test.

In Winston v. Lee, the Supreme Court held that it violated the Fourth Amendment forcibly to remove from the chest of a robbery suspect a bullet having evidentiary value. The Court clarified and applied the Schmerber balancing test as "the appropriate framework of analysis," noting that "the question whether the community's need for evidence outweighs the substantial privacy interests at stake is a delicate one admitting of few categorical answers." 470 U.S. at 760, 105 S.Ct. at 1616-17.

Assuming the threshold requirements of probable cause and a warrant or an exception to that requirement have been met, the next step in the Schmerber inquiry is to "consider a number of other factors in determining the 'reasonableness' of the blood test." Id. at 761, 86 S.Ct. at 1831. The Court noted that a "crucial factor in analyzing the magnitude of the intrusion in Schmerber is the extent to which the procedure may threaten the safety or health of the individual." Id. When assigning weight to this factor in the case of a blood test, the Court found it significant that the test did not "endanger[ ] the life or health of the suspect," " 'involves virtually no risk, trauma, or pain,' " and "was performed 'by a physician in a hospital environment according to accepted medical practices.' " Id. (quoting Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836). "Another factor is the extent of intrusion upon the individual's dignitary interests in personal privacy and bodily integrity." Id. at 761, 105 S.Ct. at 1617.

"The integrity of an individual's person is a cherished value in our society." Schmerber, 384 U.S. at 772, 86 S.Ct. at 1836-37. Nevertheless, "Schmerber recognized society's judgment that blood tests do not constitute an unduly extensive imposition on an individual's personal privacy and bodily integrity." Winston, 470 U.S. at 762, 105 S.Ct. at 1617-18. The factors determining the intrusiveness of the blood test in this case are largely indistinguishable from those in Schmerber, although medical science now teaches that special precautions should be employed in procedures involving exposure to bodily fluids. ¹

To be "[w]eighed against these individual interests is the community's interest in fairly and accurately determining guilt or innocence." Id. A blood test is "a highly effective means of...