CONSTITUTIONAL LAW; DRUNK DRIVING; TRAFFIC ACCIDENTS;
October 27, 2003
MANDATORY CHEMICAL TEST IN SERIOUS ACCIDENT CASES WHERE DWI SUSPECTED
By: Sandra Norman-Eady, Chief Attorney
You asked (1) if PA 03-265 requires drivers suspected of driving while intoxicated (DWI) who are involved in accidents resulting in serious injury or death to submit to chemical tests against their will, (2) for the legislative history of this provision, and (3) for the constitutionality of this law, including whether an arrest must precede testing and whether force may be used to obtain test samples.
Prior to October 1, 2003, the effective date of PA 03-265, the only requirement for mandatory testing in motor vehicle accident cases was the implied consent law, which required testing of anyone killed in a motor vehicle accident. PA 03-265 expanded this law, requiring, rather than allowing, a blood or breath test to be conducted on a driver who survives an accident resulting in death or serious injury if the police have probable cause to believe the person was DWI. The act requires that tests for fatally injured drivers or pedestrians and surviving operators, to the extent that the act authorizes testing, be capable of showing the presence of any drug as well as alcohol. The act does not establish a standard for police when determining whether someone involved in an accident has been “seriously injured. ”
The mandatory testing provision in PA 03-265 was not debated in either the House or Senate. In the Judiciary Committee public hearing on the underlying bill (HB 6698), four speakers testified in favor of the provision. Representatives of the Connecticut Police Chiefs Association did not comment on the bill in their prepared testimony, however, they stated their support in response to questions posed by the House chair. Other supporters were the attorney general, who stated that mandatory blood testing is vital to enforcement in accidents resulting in fatalities or serious injuries, and the parents of two people killed in motor vehicle accidents. In responding to questions from them, the proponent of the bill stated that it was intended to mirror the law in Delaware, Florida, and New Hampshire, which permits police to forcefully obtain chemical samples from drivers who refuse to submit to such tests.
A law that requires accident survivors to submit to mandatory chemical testing raises two possible constitutional questions: whether it violates a person’s right under the Fourth Amendment to be free of unreasonable searches and seizures and, if results of the test are offered as evidence in a subsequent prosecution, whether admitting the evidence violates Fifth Amendment protections against self-incrimination.
The law is well settled that it is not an unreasonable search within the meaning of the Fourth Amendment to the United States Constitution, as made enforceable against the states under the Due Process clause of the Fourteenth Amendment, for police to obtain a warrantless involuntary blood sample from a defendant believed to be DWI provided (1) there is probable cause to arrest the defendant for that offense, and (2) the blood is extracted in a reasonable manner by medical personnel pursuant to medically approved procedures.
The U. S. Supreme Court has held that the Fifth Amendment is a bar against compelling communications or testimony, not compulsions that make a suspect or accused the source of real or physical evidence. Thus, it has found that blood test results do not violate the Fifth Amendment.
Several states, like Colorado, Florida, Illinois, Maine, New Hampshire, South Carolina, South Dakota, and Texas, have laws like Connecticut’s that require police to have drivers who survive an accident resulting in death or serious injury submit to a chemical test if the police have probable cause to believe the person was driving under the influence of alcohol or drugs. Some states have upheld these “involuntary” tests in cases where police used reasonable force to obtain blood samples.
Other states, like California, Hawaii, Idaho, Kansas, Louisiana, Nevada, New Mexico, and Washington, permit police to require these drivers to submit to chemical tests.
Courts in states with mandatory and permissive statutes have upheld their constitutionality and found test results admissible as evidence in subsequent prosecutions.
At least three state courts, Colorado, Maine, and Oregon have been asked to determine whether an arrest must precede mandatory testing in order to be permissible under the Fourth Amendment. These courts decided that the tests are permissible based on probable cause and exigent circumstances (i. e. , alcohol dissipates quickly in the blood).
MANDATORY TESTING LAW
Until October 1, 2003, the only mandatory testing law involving motor vehicle accidents applied to deceased victims. As part of the investigation of any motor vehicle accident resulting in a death, this law required the chief medical examiner or other pathologist to order a blood sample taken from any deceased driver or pedestrian and examine it for the presence of alcohol. During this same pre-October 1, 2003 period, the law permitted, to the extent allowed by law, a blood or breath sample to be taken from any surviving vehicle operator and tested for alcohol (CGS § 14-227c). At that time (and still today), the implied consent law permitted a person to be tested after he was arrested for DWI, informed of his constitutional rights, provided a reasonable opportunity to telephone an attorney, and informed of the consequences if he failed to take or pass the test (CGS § 14-227b).
PA 03-265, AAC The Department of Motor Vehicles, Drunken Driving and the Licensing of Sixteen and Seventeen Year Old Motor Vehicle Operators, requires, rather than allows, a blood or breath test to be taken from any surviving operator when (1) an accident results in serious physical injury or death and (2) the police have probable cause to believe the operator was DWI. A serious physical injury is one that creates a substantial risk of death or causes serious disfigurement, serious impairment of health, or serious loss or impairment of the function of a body organ. (But the act does not establish a standard for determining serious physical injury. )
The act also requires that both tests examine for the presence of any drug, as well as alcohol. (Since evidentiary breath tests cannot detect the presence of drugs, the act, in effect, requires blood tests of surviving operators. )
Unlike the prior law that permitting testing, the act does not require the operator to be placed under arrest before he is required to submit to a test. PA 03-265 became effective on October 1, 2003.
LEGISLATIVE HISTORY OF PA 03-265
The House and Senate both acted on the bill on June 4, 2003. The House passed the bill (sHB 6698) after debating provisions, other than mandatory testing. The Senate placed the bill on consent and passed it without debate.
Four speakers testified in support of the legislation at the Judiciary Committee’s public hearing on April 4, 2003. The bill’s proponent, Senator Andrew Roraback, provided comments relevant to legislative intent. In relevant part, he stated:
What the bill is intended to do is to have Connecticut mirror circumstances that they have in New Hampshire and Delaware and Florida where if someone refuses to have their blood taken or their breath analyzed, they’re going to be held down by the police and compelled to give of their blood or breath and I share your view that driving is not a right, it's a privilege. And if you’re going to get a driver’s license, one of the things that you agree is, if you cause an accident that results in the death or serious bodily injury of another, you consent to have your blood taken or your breath analyzed.
The battle that will be fought in this process is some people take the position that it’s a violation of your Fifth Amendment Rights to compel you to give of your blood or breath, but I don’t think it’s a violation of your Fifth Amendment Rights because if you don't want to have a driver’s license, then you don't need to submit yourself to that exposure.
CONSTITUTIONALITY OF MANDATORY CHEMICAL TESTS
Fourth Amendment Analysis
The U. S. Supreme Court has held that it is not an unreasonable search for police to obtain a warrantless involuntary blood sample from a defendant believed to be DWI provided (1) there is probable cause to arrest the defendant for that offense, and (2) the blood is extracted in a reasonable manner by medical personnel pursuant to medically approved procedures (Schmerber v. California, 384 U. S. 757 (1966). (The law is well settled that states are privileged under their state law to adopt higher, but not lower, standards for police conduct than those required by the Fourth Amendment (Cooper v. California, 386 U. S. 58 (1967 (state constitutional provision on search and seizure); Sibron v. New York, 392 U. S. 40 (1968) (state statute)).
Schmerber was arrested for drunk driving while receiving treatment in a hospital for injuries he received when the car he was driving skidded across a road and hit a tree. The arresting officer smelled liquor on Schmerber’s breath and noticed other indicia of intoxication. During his treatment, a police officer ordered a doctor to take a blood sample, which confirmed that Schmerber was intoxicated. The blood test was introduced as evidence in court and Schmerber was convicted. At the time of Schmerber’s arrest, California law authorized police to make warrantless arrests when there was reasonable cause to believe that a felony was committed.
The Court found that the blood test was an appropriate search incident to arrest because of the fast rate at which alcohol in the blood begins to diminish. The Court also found the particular test chosen to be appropriate and that the test was performed in a reasonable manner.
Must An Arrest Precede Test? In State v. Baker, 502 A. 2d 489 (1985), the Maine Supreme Court interpreted Schmerber as sanctioning blood tests as a warrantless search based upon probable cause and exigent circumstances rather than as a search incident to arrest. Based on this interpretation, the court upheld the constitutionality of a blood test that preceded a defendant’s arrest.
The Oregon Supreme Court held that, under the federal constitution, “an arrest…is not required prior to the warrantless extraction of blood for the purpose of determining blood alcohol content, so long as the extraction is based on probable cause sufficiently strong to have justified such an arrest. ” The Court concluded that the “evanescent nature of the evidence sought, not the existence or absence of an arrest…justifies [the test] (State v. Milligan, 748 P. 2d 130 (1987)).
Lastly, the Colorado Supreme Court has upheld the constitutionally of an involuntary test where the police had probable cause to arrest. The facts do not indicate whether the defendant was arrested for DWI, rather they are that the defendant was charged with vehicular homicide and assault more than one month after a blood sample was taken (People v. Shepard, 906 P. 2d 607 (1995).
Use Force to Secure Blood Sample. The Delaware Supreme Court has upheld the use of a stun gun as a reasonable step to secure a blood sample (McCann v. State, 588 A. 2d 1100 (1991)). In State v. Lanier, 452 N. W. 2d 144 (1990, the South Dakota Supreme Court upheld the admissibility of a blood test when five or six officers restrained a DWI suspect while blood was being withdrawn. Similarly, in Carleton v. Superior Court, 170 Cal. App. 3d 1182 (1985), the California Appeals Court upheld the admission of chemical analysis results of a blood sample procured after six police officers restrained a DWI suspect with a carotid hold around his neck. In all three cases the suspects had been aggressive, and the Courts ruled that under the totality of the circumstances, the force used was reasonable.
On the other hand, the New Jersey Supreme Court has found unreasonable force in a case where a defendant refused a blood test, expressing his fear of needles, and offered to take a breath test. The Court found that the totality of the circumstances, the defendant’s fear, the relatively minor offense committed (accident with no injuries), and the fact that test results were not needed to make the state’s case, made the test and the force used by police to obtain the sample, unreasonable (State v. Ravotto, 777 A. 2d 301 (2001)).
Fifth Amendment Analysis
The U. S. Supreme Court in Schmerber held that the Fifth Amendment privilege against self-incrimination protects an accused only from being compelled to testify against himself or otherwise provide the state with evidence of a testimonial or communicative nature. The Court reasoned that blood tests, like fingerprints, do not require physiological responses and thus are neither testimony nor evidence relating to some communicative act or writing by the petitioner.
Courts in states that require or permit blood tests in DWI cases have allowed the test results to be admitted as evidence in subsequent criminal prosecutions if the Schmerber test for obtaining the chemical sample was met.