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U.S. Supreme Court
SCHMERBER v. CALIFORNIA, 384 U.S. 757 (1966)


  1. Page 758 California Vehicle Code § 23102(a) provides, in pertinent part, "It is unlawful for any person who is under the influence of intoxicating liquor . . . to drive a vehicle upon any highway. . . ." The offense is a misdemeanor.
  2. Page 758 Petitioner and a companion had been drinking at a tavern and bowling alley. There was evidence showing that petitioner was driving from the bowling alley about midnight November 12, 1964, when the car skidded, crossed the road and struck a tree. Both petitioner and his companion were injured and taken to a hospital for treatment.
  3. Page 759 This was the judgment of the highest court of the State in this proceeding since certification to the California District Court of Appeal was denied. See Edwards v. California, 314 U.S. 160.
  4. Page 760 We "cannot see that it should make any difference whether one states unequivocally that he objects or resorts to physical violence in protest or is in such condition that he is unable to protest." Breithaupt v. Abram, 352 U.S., at 441 (WARREN, C.J., dissenting). It would be a different case if the police initiated the violence, refused to respect a reasonable request to undergo a different form of testing, or responded to resistance with inappropriate force. Compare the discussion at Part IV, infra.
  5. Page 761 A dissent suggests that the report of the blood test was "testimonial" or "communicative," because the test was performed in order to obtain the testimony of others, communicating to the jury facts about petitioner's condition. Of course, all evidence received in court is "testimonial" or "communicative" if these words are thus used. But the Fifth Amendment relates only to acts on the part of the person to whom the privilege applies, and we use these words subject to the same limitations. A nod or head-shake is as much a "testimonial" or "communicative" act in this sense as are spoken words. But the terms as we use them do not apply to evidence of acts noncommunicative in nature as to the person asserting the privilege, even though, as here, such acts are compelled to obtain the testimony of others.
  6. Page 761 Many state constitutions, including those of most of the original Colonies, phrase the privilege in terms of compelling a person to give "evidence" against himself. But our decision cannot turn on the Fifth Amendment's use of the word "witness." "[A]s the Page 762 manifest purpose of the constitutional provisions, both of the States and of the United States, is to prohibit the compelling of testimony of a self-incriminating kind from a party or a witness, the liberal construction which must be placed upon constitutional provisions for the protection of personal rights would seem to require that the constitutional guaranties, however differently worded, should have as far as possible the same interpretation . . . ." Counselman v. Hitchcock, 142 U.S. 547, 584-585. 8 Wigmore, Evidence § 2252 (McNaughton rev. 1961).
  7. Page 763 Compare Wigmore's view, "that the privilege is limited to testimonial disclosures. It was directed at the employment of legal process to extract from the person's own lips an admission of guilt, which would thus take the place of other evidence." 8 Wigmore, Evidence § 2263 (McNaughton rev. 1961). California adopted the Wigmore formulation in People v. Trujillo, 32 Cal.2d 105, 194 P.2d 681 (1948); with specific regard to blood tests, see People v. Haeussler, 41 Cal.2d 252, 260 P.2d 8 (1953); People v. Duroncelay, 48 Cal.2d 766, 312 P.2d 690 (1957). Our holding today, however, is not to be understood as adopting the Wigmore formulation.
  8. Page 764 The cases are collected in 8 Wigmore, Evidence § 2265 (McNaughton rev. 1961). See also United States v. Chibbaro, 361 F.2d 365 (C.A. 3d Cir. 1966); People v. Graves, 64 Cal.2d 208, — , 411 P.2d 114, 116 (1966); Weintraub, Voice Identification, Writing Exemplars and the Privilege Against Self-Incrimination, 10 Vand. L. Rev. 485 (1957).
  9. Page 765 This conclusion would not necessarily govern had the State tried to show that the accused had incriminated himself when told that he would have to be tested. Such incriminating evidence may be an unavoidable by-product of the compulsion to take the test, especially for an individual who fears the extraction or opposes it on religious grounds. If it wishes to compel persons to submit to such attempts to discover evidence, the State may have to forgo the advantage of any testimonial products of administering the test — products which would fall within the privilege. Indeed, there may be circumstances in which the pain, danger, or severity of an operation would almost inevitably cause a person to prefer confession to undergoing the "search," and nothing we say today should be taken as establishing the permissibility of compulsion in that case. But no such situation is presented in this case. See text at n. 13 infra. Petitioner has raised a similar issue in this case, in connection with a police request that he submit to a "breathalyzer" test of air expelled from his lungs for alcohol content. He refused the request, and evidence of his refusal was admitted in evidence without objection. He argues that the introduction of this evidence and a comment by the prosecutor in closing argument upon his refusal is Page 766 ground for reversal under Griffin v. California, 380 U.S. 609. We think general Fifth Amendment principles, rather than the particular holding of Griffin, would be applicable in these circumstances, see Miranda v. Arizona, ante, at 468, n. 37. Since trial here was conducted after our decision in Malloy v. Hogan, supra, making those principles applicable to the States, we think petitioner's contention is foreclosed by his failure to object on this ground to the prosecutor's question and statements.
  10. Page 768 See, e.g., Gouled v. United States, 255 U.S. 298; Boyd v. United States, 116 U.S. 616; contra, People v. Thayer, 63 Cal.2d 635, 408 P.2d 108 (1965); State v. Bisaccia, 45 N.J. 504, 213 A.2d 185 (1965); Note, Evidentiary Searches: The Rule and the Reason, 54 Geo. L. J. 593 (1966).
  11. Page 768 See, e.g., Silverman v. United States, 365 U.S. 505; Abel v. United States, 362 U.S. 217, 235; United States v. Rabinowitz, 339 U.S. 56.
  12. Page 768 California law authorizes a peace officer to arrest "without a warrant . . . [w]henever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed." Cal. Penal Code § 836.3. Although petitioner was ultimately prosecuted for a misdemeanor, Page 769 he was subject to prosecution for the felony since a companion in his car was injured in the accident, which apparently was the result of traffic law violations. Cal. Vehicle Code § 23101. California's test of probable cause follows the federal standard. People v. Cockrell, 63 Cal.2d 659, 408 P.2d 116 (1965).
  13. Page 771 "The blood test procedure has become routine in our everyday life. It is a ritual for those going into the military service as well as those applying for marriage licenses. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same, though a longer, routine in becoming blood donors." Breithaupt v. Abram, 352 U.S., at 436.
  14. Page 771 See Karst, Legislative Facts in Constitutional Litigation, 1960 Sup.Ct. Rev. 75, 883.