CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, September 28, 2011

Correll on Compelled DWI Blood Draws

Michael A. Correll has posted Is There a Doctor in the (Station) House?: Reassessing the Constitutionality of Compelled DWI Blood Draws Forty-Five Years after Schmerber (West Virginia Law Review, Vol. 113, p. 381, 2011) on SSRN. Here is the abstract:

The vast majority of Fourth Amendment jurisprudence of the last century has been dedicated to parsing the physical and intangible boundaries of the home, developing the expectation of privacy, and, as of late, exploring the constitutional implications of an increasingly electronic society. In the midst of this development, one major area has quietly fallen by the wayside - the preservation of bodily integrity. As technology has rendered the human body an ever-increasing source of crucial evidence, the Supreme Court has remained largely silent on the government’s power to harvest information through medical procedures. Since the Court’s consideration of the constitutionality of compelled blood draws in Schmerber v. California, 384 U.S. 757 (1966), the Fourth Amendment questions attendant to bodily evidence have been largely left to the states. This Article examines a narrow subset of that state-level development: non-consensual DWI blood draws. A review of the state statutory and jurisprudential applications of Schmerber reveals increasing disagreement over the scope of the Fourth Amendment when police seek to recover fleeting evidence of blood alcohol content. Based on this review, this Article suggests a number of policy proposals designed to better insure police stay within the Fourth Amendment strictures of Schmerber while also procuring the most effective evidence possible.

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In addition to the 4th Amendment violations for the forceable drawing of blood for public order "crimes", what happens to this evidence once it has been collected? Blood can be used for DNA testing as well and the burden should be on the State to prove this evidence won't be entered into some database and used at a later date for some entirely different and unrelated incident. Defence Counsel would then be forced to dedicate resources to having this unlawfully collected evidence excluded. i.e. guilty until proven innocent?

Posted by: BlindSquirl | Sep 30, 2011 6:57:46 AM

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