The United States Supreme Court is reviewing the policy of taking blood samples from DUI arrestees without a warrant. Here in the Bay area, policies vary from police department to police department. In San Jose, Palo Alto, or San Mateo, you may be forced to give a blood sample depending on whether you’re arrested by a local police department (such as the Los Altos Police Department), the County Sheriff, of the California Highway Patrol (CHP). The CHP has a consistent policy of forcing blood from people who do not consent to take a test.

It is a brutal policy, and hardly sanitary. The original U.S. Supreme Court case that found a non consensual blood draw to be constitutional was Schmerber v. California, 384 U.S. 757 (1966). In that case, the blood was drawn by a physician in a hospital. There, the justices said:

Finally, the record shows that the test was performed in a reasonable manner. Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

Whenever the courts give law enforcement an inch, they take a mile. Here’s how the CHP forces blood out of people: they handcuff the arrestee and three officers force them face down onto a wrestling-style mat while a “phlebotomist” then sticks the needle into an often struggling human being and extracts the blood. I’ve never heard any testimony that anyone cleans the mat before or after use. It’s disgusting, but typical of law enforcement, including district attorneys and other prosecutors, to argue—in the name of the people—that such practices are constitutional in spite of the plain language of Schmerber about tests at the stationhouse and concern for risk of infection or pain.

Here’s a link to the Oral Argument in Missouri v. McNeely, the pending U.S. Supreme Court case on warrantless blood draws by law enforcement. While the first half sounds encouraging, keep in mind that the Justices press BOTH sides as hard as they can. Working on the front lines of the justice system, I am most frustrated by the fact that the justices are arguing over imaginary police, and imaginary arrestees. They are so far removed from the real world that the best they can do is try to imagine what police would do and pretend they know how an arrestee might react. The sad truth is that the gentle imaginings of the nine smart, thoughtful, but out of touch Supreme Court Justices get twisted, stretched, and split wide open by police, prosecutors, and trial court judges—all to the detriment of our freedom. Still, it’s a good listen:

www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=11-1425