LEGALITY OF BLOOD TESTS AND BREATH TESTS IN DRUNKEN DRIVING PROSECUTIONS

LEGALITY OF BLOOD TESTS AND BREATH TESTS IN DRUNKEN DRIVING PROSECUTIONS

(1) One may not be compelled to submit to blood tests or urine tests in drunken driving prosecutions, but one may be compelled to submit to a breath test.

(2) Results of such tests, if secured without compulsion, are admissible in evidence, and no violation of the self-incrimination clause is involved.

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                                                              September 18, 1950

Honorable Patrick M. Steele
Prosecuting Attorney
Pierce CountyCourt House
Tacoma, Washington                                                                                                              Cite as:  AGO 49-51 No. 333

Attention:  Mr. Neil H. Hoff, Deputy

Dear Sir:

            In your letter of August 11, 1950, you requested our opinion concerning the legality of blood tests and breath tests in drunken driving prosecutions.

            It is our interpretation of your inquiry that at least two questions are pertinent, namely:  (1) May one under arrest be compelled against his will to submit to such tests? and (2) May the results of such tests be used in evidence if the original taking was with the consent of the arrested party or taken in such a manner as not to raise the issue of compulsion?

            Our conclusions may be summarized as follows:

             [[Orig. Op. Page 2]]

            1. One may not be compelled to submit to blood tests or urine tests but may be compelled to take the breath test.

            2. The result of such tests, if taken without compulsion or under circumstances where the issue of compulsion is not involved, may be used as evidence without violating the self-incrimination clause.

                                                                     ANALYSIS

            1. You will note that our conclusions are generally the same as expressed in an earlier opinion dated March 16, 1946.

            Since that time recent legislation in this state has strengthened our conclusion as to the problem of compelling one to submit to blood tests.  Our statute, section 4, chapter 196, Laws of 1949, amending section 119, chapter 189, Laws of 1937 (Rem. Rev. Stat. Supp. 6360-119), allows the taking of blood tests, urine tests and breath tests to determine alcoholic content; however, the statute provides further that:

            "* * * Nothing herein contained shall be construed as requiring any person to submit to a chemical analysis of his blood, and the refusal to submit to such an analysis shall not be admissible in evidence in any criminal prosecution for a violation of the provisions of this section or in any civil action."

            In the quoted section just referred to, nothing is said concerning urine tests.  Nevertheless, it is our opinion that urine tests as well cannot be forced upon an individual.

            It is true that some of the more recent decisions dealing with this problem hold that urine and blood test results are admissible in evidence even though secured by compulsion.  The effect of these holdings would, on their face, seem then to say it is lawful to compel one to submit to such tests.  See State v. Cram, 160 P. (2d) 283 (Ore.); Commonwealth v. Statti, 73 A. (2d) 688 (Pa.); People v. One Mercury Sedan, 168 P. (2d) 443 (Cal.).  However, this conclusion is not borne out upon a careful reading of the authorities cited.

             [[Orig. Op. Page 3]]

            These decisions and others not cited can only be said to show that the self-incrimination clause is no barto the admission in evidence of these tests, resting their conclusions on the premise that the self-incrimination clause was limited solely to testimonial evidence and not real evidence.  These cases do not say there is no other rule that would prevent the use of such evidence, nor do they say because the evidence is admissible it is therefore lawful to compel the taking of such tests.

            InState v. Cram,supra, the court said:

            "In holding that the testimony concerning the blood sample was admissible we are not deciding that an accused can be forced to undergo a physical examination or to submit to a blood test."

            InCommonwealth v. Statti, supra, the court was of the opinion that evidence secured by an unlawful search and seizure was nevertheless admissible and the self-incrimination clause was no bar.

            It should be noted here that Washington is committed to the rule that the state cannot use evidence unlawfully obtained.  State v. Miles, 29 Wn. (2d) 921.

            In theMercury Sedan case, supra, the accused was compelled to submit to a stomach pumping to determine whether he had swallowed any marihuana.  The results were admitted in evidence, and the court held that the self-incrimination clause was no bar since that constitutional guarantee was limited to testimonial compulsion only.  Though this case goes far, its significance is lessened by the later California case ofPeople v. Tucker, 198 P. (2d) 941, where the court admitted the results of blood tests but stated on page 947:

            "* * * It is generally held in other states that where the accused is compelled to submit to such tests against his will, it violates his constitutional rights.  * * *"

             [[Orig. Op. Page 4]]

            We have discussed this point at length to show that the authorities have only based their rulings on the fact that the self-incrimination clause is no bar to admission in evidence of the results of these tests.  Most of these cases make it clear that the rule that they adhere to does not give a green light on the power or right to compel submission to blood or urine tests.

            As pointed out, our statute has determined the blood test problem.  We also feel the same applied to urine tests, even though the statute is silent on this point.  This conclusion is based upon the principles expressed in Bendarik v. Bendarik, 16 A. (2d) 80 (N.J.), which held that compelling one to submit to a blood test would be a violation of a person's right to personal privacy and security.  Taking a urine sample is no less a violation of ones personal privacy and security.  Furthermore, the dissenting opinion in State v. Cram,supra, points out that such tests constitute an unlawful search and seizure, and if the objection had been placed properly before the court the decision in that case might well have been different.

            As to breath tests, it would seem they are no greater a violation of one's personal security and privacy than the taking of fingerprints, which is clearly permissible.  U. S. v. Kelley, 55 F. (2d) 67.  It also is our opinion that no unlawful search or seizure is involved with this test in light of the cases collected inState v. Cram, supra.

            2. On the second question regarding the admissibility of the results in evidence, where there is no compulsion involved the rule seems well accepted, and stated simply is that there is no violation of the self-incrimination privilege where the evidence is real or non-testimonial in character.  State v. Sturtevant, 70 A. (2d) 909 (N.H.).  The results of blood tests, urine tests, and breath tests are not testimonial on the part of the accused, and thus are admissible.  This rule applies generally, even though the test was taken while the accused was unconscious and thus incapable of consent.  State v. Ayers, 211 P. (2d) 142 (Idaho).

            Our court has also adopted the testimonial doctrine in determining whether the self-incrimination clause is involved.  State v. Clark, 156 Wash. 543.

             [[Orig. Op. Page 5]]

            As pointed out earlier in this opinion, in many jurisdictions, even though the tests were taken without the consent of the individual, the evidence was admissible.

            In Washington, as to blood tests taken without the consent of the individual, it is our opinion that the results would not be admissible.  This conclusion is based on Rem. Rev. Stat. Supp. 6390-119,supra.

            As to urine samples, since it is our conclusion that they cannot be taken without the individual's consent, the results could not be used in evidence under the rule ofState v. Miles, supra.  This conclusion is also supported by the case of Apodaca v. State, 146 S.W. (2d) 381 (Tex.), decided on the ground that compelling one to take such a test violates the guarantee of the self-incrimination clause.

Very truly yours,

SMITH TROY
Attorney General

ROBERT L. SIMPSON
Assistant Attorney General