The opinion
Eager, J. (dissenting).
A consideration of general and constitutional law leads me to conclude that the determinations of the Fire Commissioner may not be sustained.
It is noted that there is a duly promulgated regulation of the Fire Department that 4 4 Members in uniform, or when on' duty, shall not at any time, indulge in, or be under the influence of intoxicating liquors. ’ ’ (Regulations for the Uniformed Force Fire Department of the City of New York, § 25.1.4.) But the challenged determinations are not grounded on a violation of this regulation. The petitioner Vyse was not charged with being intoxicated in violation of said regulation and the petitioner Krolick was found not guilty of the charge alleging that he ¡was 4 4 under the influence of intoxicating liquors” in violation of the particular regulation.
Certainly, the intoxication of a fireman while on duty is fraught with serious consequences, and public interest would justify a proper law or regulation requiring a fireman to submit a blood sample for laboratory analysis where there are *327 reasonable grounds to believe that he is incapacitated by reason of intoxication. But, clearly, the authority for such a test should be grounded in a duly enacted statute, ordinance or other law, or in a duly promulgated rule having the force of law; and the law or rule must certainly lay down proper and reasonable safeguards and guidelines as preliminary to the demanding and taking of the test. We are a government ruled by law and the requirement of “ due process of law ” precludes interference with the rights of persons on the basis of a mere order or direction of a public agency or officer. Therefore, in my opinion, in the absence of a proper law or duly promulgated rule, a chief of the Fire Department does not have the authority to issue a general direction authorizing an officer of the department to order a fireman to submit a blood sample for testing.
It is settled that the taking of a blood sample from an individual is subject to the proscriptions of the Fourth and Fourteenth Amendments of the United States Constitution; that testing procedures in the withdrawal of blood “plainly constitute searches of ‘ persons ’, and depend antecedently upon seizures of ‘persons,’ within the meaning of that Amendment [the Fourth Amendment]. ’ ’ (Schmerber v. California, 384 U. S. 757, 767 . See, also, Davis v. Mississippi, 394 U. S. 721 ; People v. Gates, 24 N Y 2d 666.) It is also well settled that administrative officials, although acting in the public interest, are subject to the constitutional restraint against unreasonable searches and seizures. (See Camara v. Municipal Court, 387 U. S. 523 ; Matter of Leogrande v. State Liq. Auth., 25 A D 2d 225, revd. on other grounds 19 N Y 2d 418; Matter of Finn’s Liq. Shop v. State Liq. Auth., 24 N Y 2d 647.)
‘ ‘ A search, not authorized by consent or a search warrant, is deemed reasonable only if conducted as ‘ incident to a lawful arrest ’ ” (People v. Malinsky, 15 N Y 2d 86, 91). This is the well-established rule (People v. Loria, 10 N Y 2d 368, 373; People v. Bowles, 29 A D 2d 996; People v. Richter’s Jewelers 265 App. Div. 767, 771-772 , affd. 291 N. Y. 161 ) and, certainly, an exception to such general rule cannot be based on the circumstances present here.
Of course, the intoxication of a fireman, while on duty, is of such serious concern as to warrant legislation or proper promulgation of rules in the matter. On this basis, certainly, provision could be made for the submission of a fireman to blood sampling where he is arrested for a related criminal offense (see, e.g., Vehicle and Traffic Law, §§ 1192, 1194); a search and seizure of one’s person following his lawful arrest violates no law.
*328 Furthermore, it may be borne in mind that an individual may waive any constitutional right which is solely personal (see 16 C. J. S., Constitutional Law, §§ 89-91) and, on the basis of proper law and regulation, it would seem that it would be reasonable to put a person engaging in public employment to the choice of submitting to a blood sampling under reasonable requirements or of losing the right to serve as a public employee. This could be spelled out by a statute, law, ordinance or rule, setting forth reasonable safeguards and guidelines for the protection of the rights of the fireman.
In view of the foregoing, I would annul the determinations of the Fire Commissioner in these cases.
Telzer and Steuer, JJ., concur with Stevens, P. J.; Eager, J., dissents in opinion; MoGtvebn, J., dissents in part in dissenting opinion and votes to annul the determination with respect to petitioner William Krolick.
Determinations of the respondent confirmed, without costs and without disbursements, and the petitions dismissed.