July 14, 2004		2004-R-0558
DRUNK DRIVING TESTING REQUIREMENTS IN CONNECTICUT AND OTHER STATES
By: Kevin E. McCarthy, Principal Analyst

You asked (1) whether a police officer can compel a driver arrested for driving under the influence (DUI) to submit to an alcohol test if the driver has not been involved in an accident but requests to be taken to a hospital, e.g., if he complains of chest pains suggesting a heart attack, (2) if other states require submission to an alcohol test when the driver has not been involved in an accident, and (3) whether there are constitutional issues raised by compelling a driver to submit to an alcohol test.

SUMMARY

Connecticut does not requires alcohol testing of a driver in the scenario you describe. It does require that a driver submit to an alcohol test if his vehicle was involved in an accident that caused a serious physical injury or death of another person and the police officer has probable cause to believe that the driver was driving while under the influence. In addition, any driver arrested for DUI who refuses to take a test is subject to administrative license suspension.

Most states have laws similar Connecticut, i.e., they only mandate alcohol testing in the context of an accident but subject drivers arrested for DUI who refuse to take an alcohol test to administrative license suspension. A few states also subject drivers who refuse to submit to a test to criminal penalties. It appears that no state requires testing in cases in which there has not been an accident.

Mandatory alcohol testing raises two possible constitutional questions: whether it violates a person's right under the Fourth Amendment to the United States Constitution 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, 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 DUI 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.

CONNECTICUT LAW

The law (CGS § 14-227c) requires that a blood or breath sample be obtained from any surviving driver whose vehicle is involved in an accident that caused a serious physical injury or death of another person, if the police officer has probable cause to believe that the person was driving the vehicle while under the influence of alcohol, drugs, or both. The law specifies who can conduct the test and how it must be conducted.

In addition, under CGS § 14-227b(j), evidence regarding the amount of alcohol in the blood or urine of a driver involved in an accident in which he suffered or allegedly suffered a physical injury is admissible in a DUI prosecution under certain circumstances. These are (1) the blood or urine sample was taken at the scene of the accident, en route to the hospital, or at the hospital; (2) the sample was taken or provided for the purpose of diagnosis or treatment; (3) the taking of a blood sample conformed to Department of Health regulations; (4) the police officer demonstrates to the court that there is reason to believe that the person was driving under the influence and that the sample constitutes evidence of this offense; and (5) the court authorizes a search warrant to seize the chemical analysis of the sample. This provision does not apply to the scenario described above, because the driver was not injured.

In other circumstances, the police cannot compel the driver to submit to an alcohol test. However, under CGS § 14-227b, if the officer arrests a driver for DUI and he refuses to submit to the test, his license is subject to an administrative license suspension. The suspension is six months for an initial refusal, one year for a second refusal, and three years for a third or subsequent refusal. These provisions do not apply to a driver whose physical condition, according to competent medical advice, makes alcohol testing inadvisable. A driver can contest the suspension at an administrative hearing, and if unsuccessful appeal to the courts. Separate provisions, with stiffer suspension penalties, apply under CGS § 14-44k to drivers of commercial vehicles, such as school buses and large trucks, who fail to submit to a test when arrested for DUI.

We have found two cases addressing the applicability of the license suspension penalties when a driver asserts that he has a medical condition that contraindicates an alcohol test. In Bennett v. Commissioner, Motor Vehicles, judicial district of Hartford/New Britain at Hartford, docket no. CV 94 0705079 (March 24, 1995), the court upheld the license suspension of driver who asserted, at his administrative hearing, that his refusal to submit to a test was based on a heart arrhythmia. The police took the driver to the hospital were he was examined and released. They then took him to police headquarters and requested that he submit to a breath test. He refused to submit unless he first contacted his cardiologist. The police deemed this to be a refusal and suspended his license. The hearing officer affirmed the suspension. On appeal, the court stated that if the driver had refused the test and subsequently shown by competent evidence that it would have been medically inadvisable for him to take the test, the department would not have been allowed to suspend his license. But in this case, the driver never presented any evidence that his physical condition should have excused him from the test, and the court upheld the suspension. In Dore v. Salinas, judicial district of New Britain, docket no. CV 98 0492730S (May 18, 1989), the driver refused to take an alcohol test and told the officer that he was not ill, was not taking medications, and did not have

diabetes or other relevant medical condition. However, at his hearing, he introduced a letter from his physician stating that it would have been medically inadvisable for him to have submitted to the test. The hearing officer upheld the suspension based on the arresting officer's report. The court, on appeal, found that the record supported the hearing officer's decision and dismissed the appeal.

In addition to the administrative suspension, a driver can be convicted of DUI if the prosecution proves that he was operating a vehicle while under the influence of alcohol, even in the absence of a blood test.

TESTING REQUIREMENTS IN OTHER STATES

Connecticut's testing requirements are similar to those in most other states. Connecticut is one of 40 states to require testing of surviving drivers in cases involving accidents where a driver has been killed or seriously injured. It is one of 37 states to require testing of drivers killed in accidents. However, staff at the National Conference of State Legislatures and the National Highway Traffic Safety Administration are aware of no state that requires testing in cases that do not involve an accident.

Connecticut is one of 41 states that administratively suspends or revokes the license of a driver who refuses to submit to an alcohol test after being arrested for DUI. A few states, including Florida and Virginia, also impose criminal penalties for refusing to take a test for a second or subsequent offense. In Rhode Island, refusing to take a test is an infraction. Delaware, California, Kansas, Oklahoma, Virginia, and Wisconsin have statutory provisions on the administration of a test when a person is physically unable to provide a sample.

CONSTITUTIONALITY OF MANDATORY 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 DUI 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).

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.

While states may adopt higher standards under state law for police conduct than those required by the Fourth Amendment (Cooper v. California, 386 U. S. 58 (1967), Sibron v. New York, 392 U. S. 40 (1968)), we have found no cases indicating that Connecticut has done so in this area. OLR memo 2003-R-0775 discusses cases from other states that address, in the context of the Fourth Amendment, the permissibility of using force to obtain an alcohol sample and whether the driver must be placed under arrest before a sample can be taken.

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. The Court reiterated this holding in Marshall v. Lonberger, 459 U.S. 422 (1988).

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.

KM:ts