Hammer v. Gross

KOZINSKI, Circuit Judge,

with whom Circuit Judge D.W. NELSON joins, concurring in part:

For me, this case turns on a single fact: Hammer agreed to submit to an alternative alcohol test to avoid having blood drawn from his vein, but he was nonetheless subjected to the forcible extraction of his blood. The defense offered no evidence that Hammer’s consent came too late be *852 cause an alternative test was unavailable or would no longer be effective. Indeed, since the blood was drawn in a hospital emergency room, one can assume the rather rudimentary equipment necessary for obtaining a urine sample was close at hand. While the record does not reveal the breathalyzer’s whereabouts, the police had offered to administer that test to Hammer earlier; it’s reasonable to infer that the equipment was still in their possession or nearby. 1

These situations are inherently difficult for everyone involved. The suspect may be confused, disoriented and, in all likelihood, terrified. If an alternative test is readily available and a suspect requests it, police officers may not arbitrarily refuse to administer it simply because the suspect did not have the presence of mind to make a decision more promptly or because he changed his mind. The standard, as always under the fourth amendment, is reasonableness. Defendants have offered no explanation for officer Zatarain’s refusal to comply with Hammer’s request. Based on the evidence, the jury could conclude that officer Zatarain’s refusal to administer an alternative test was unreasonable.

While I reach the same result as four of my colleagues who make up the plurality, I am unable to join part III of Judge Canby’s opinion because I cannot subscribe to its multifactor analysis. 2 Of the five factors Judge Canby lists, only two are relevant in this particular case. The government’s need for the blood is, of course, critical: It would be senseless, cruel and unreasonable for the government to draw blood without needing it. Yet, that’s what the jury could have found happened here: Because Hammer consented to a breath test, the government had no need for the blood but nonetheless obtained it forcibly. I also agree that the suspect’s request for an alternative form of testing is relevant, although this is just another way of asking whether the government needed the blood. Saying the same thing twice gives it no more weight.

The remaining factors — the seriousness of the offense, whether the suspect resists and whether he poses a threat to the officers — gratuitously complicate the plurality’s analysis, casting a shroud of uncertainty over a very important area of the law: how officers must handle recalcitrant drunk driving suspects.

I don’t see why the seriousness of the offense is a relevant consideration. Would the police have been free to ignore Hammer’s request for a breath test if only the offense had been more serious? Certainly not. No matter how serious the offense, the availability of an equally effective, consensual method of obtaining the evidence conclusively renders use of the nonconsen-sual method unreasonable. If the suspect requests a breath or urine test and it will do the job just as well, it must be used in lieu of a blood test — even where the suspected crime is murder in the first degree. There is, in my view, never an excuse for using a more intrusive test when a less intrusive one will do. Any other rule would invite police to harass suspects of very serious crimes by subjecting them to the most onerous test available.

Even if the seriousness of the offense were a legitimate factor, the plurality places far too much weight on the fact that drunk driving is a misdemeanor. The plurality cannot dispute that drunk drivers kill tens of thousands of innocent people — and maim hundreds of thousands more — every year. L.A. Times, Dec. 26, 1988, pt. V, at 14, col. 1 (23,632 killed and 560,000 injured by drunk drivers in 1987). Nor can it deny *853 that the state has a real and substantial interest in punishing and deterring drunk driving. See Michigan Dep’t of State Police v. Sitz, — U.S. -, 110 S.Ct. 2481, 2485-86 , 110 L.Ed.2d 412 (1990). Yet, the opinion implies that because California classifies drunk driving as a misdemeanor, it can claim only a minimal interest in enforcing its drunk driving laws. This just isn’t so. California may have chosen to classify drunk driving as a misdemeanor because drunk drivers normally can be rehabilitated, a goal that might be impaired by the harsh penalties and stigma associated with the felony label. Then again, the state might have been concerned that juries would be reluctant to subject defendants who look much like themselves to felony convictions. We can only speculate about the state’s reasons. Surely, however, drunk driving is as serious a problem as many crimes that are labeled felonies, e.g., stealing $400 of possessions from a corpse; 3 impersonating a bride or bridegroom; 4 or selling Vio of an ounce of marijuana. 5 The importance of the state’s interest — to the extent it is relevant at all— must be judged by reference to reality, not labels.

The second factor considered by the plurality — whether the suspect resists — is certainly relevant in determining how much force the police may use in those many cases where the police have a legitimate need for the blood. But I don’t see how it has any relevance in this case. Because the police had no need for blood, they weren’t entitled to use any force to obtain it. Why, then, does it matter that Hammer resisted? Only if the police have a reason to draw blood need we consider the suspect’s resistance, and then only in judging whether the amount of force used is reasonable.

The remaining factor — whether the individual is a threat to the officers — has no bearing at all here. The plurality strips this factor from Graham v. Connor, 490 U.S. 386 , 109 S.Ct. 1865, 1872 , 104 L.Ed.2d 443 (1989), without paying any attention to Graham’s context. There, the Supreme Court dealt with use of force during an investigatory stop. Under those circumstances, a suspect may pose a danger to the officers or the public and that risk should be considered in determining whether the force used was reasonable. But I just can’t imagine a case where the police need to administer a blood test in self-defense.

The bottom line is that officer Zatarain acted properly in every respect but one: He failed to give Hammer an alternative test when Hammer consented to it and when (it appears from the record) the alternative was readily available. The plurality’s analysis calls into question other aspects of the officer’s behavior, turning virtually every seizure of blood into a jury case. After all, most blood tests will be for run-of-the-mill DUIs (mere misdemeanors); and none will involve the taking of blood to neutralize a threat to the officers. That’s two out of five factors favoring the plaintiff — probably enough to preclude summary judgment — just about every time the police take blood.

By raising the specter of litigation as to virtually every blood seizure, the plurality threatens to disrupt state procedures for dealing with recalcitrant drunk driving suspects. Drunk driving is a serious problem; there is no reason to gum up the process for obtaining proof of blood alcohol content because of a solitary mistake by one officer in a single case. The plurality does just that by pulling into the balance various factors that have no bearing at all in this, or any other, drunk driving case. Because *854 the plurality’s failure to distinguish relevant factors from irrelevant ones will have serious and adverse consequences for enforcement of our drunk driving laws, I cannot join part III of the opinion. Which, of course, means that the plurality’s analysis does not become the law of the circuit.

Nor can I agree with my dissenting colleagues. As I see it, the dissent places undue reliance on the “one bite” rule embodied in Cal.Veh.Code § 13353. See dissent'at 854-55 (“The California courts have also wisely indicated that section 13353 grants a person a single opportunity to submit to a blood alcohol test. Once a person refuses, the police are not obligated to give the person a second opportunity to comply with the statute.”). Rules of this sort have no bearing on our constitutional analysis; state law cannot render reasonable that which is not. 6 If the government is going to use force to pin someone to a chair, stick a needle in his arm and drain blood from his vein, against his will and despite his acquiescence in an effective alternative, it had better have a reason. Because the government offered none, I agree that the jury’s verdict for Hammer must be affirmed.

. My dissenting colleagues note that "evidence of intoxication is ... evanescent” and that “delays substantially affect the accuracy of testing." Dissent at 854 n. 1. I fail to understand the relevance of these observations. The deteriorating nature of the evidence might affect the timing of the test, but it has no bearing on the type of test selected. Nothing in the record suggests that the passage of time renders one type of test less reliable than the others; nor is there any proof that administering the test Hammer eventually agreed to would have caused a material delay.

. I do, however, join the rest of the opinion, particularly its reaffirmation of our longstanding rule that there is no plain error exception to Fed.R.Civ.P. 51. Canby opinion at 847-848.

.Cal.Pen.Code § 642 (West 1988) makes it a felony to commit grand theft from a dead person; under Cal.Pen.Code § 487 (West Supp.1991), grand theft is the theft of possessions worth more than 8400. If those possessions happen to be avocados or crustaceans, $100 worth will do; and if it’s one of the listed farm animals, its value is immaterial. See id. It follows that the nonconsensual removal of a goat from a corpse would be a felony in California.

. Id. § 528 (marrying or pretending to marry someone by falsely impersonating another is a felony).

. Id. § 11359.

. The one bite rule doesn’t purport to be a creature of the fourth amendment; it’s a rule about administrative sanctions. Under it, a suspect’s driver’s license can be suspended if he refuses to submit to a blood, breath or urine test, even if he consents to one later on. See Dunlap v. Department of Motor Vehicles, 156 Cal.App.3d 279, 283 , 202 Cal.Rptr. 729 (1984); Morphew v. Department of Motor Vehicles, 137 Cal.App.3d 738, 743-44 , 188 Cal.Rptr. 126 (1982). But no one disputes that Hammer’s initial refusal put him in violation of California’s implied consent law and that his driver’s license could be suspended despite his belated consent. The question is whether it was reasonable to use force to draw blood despite his willingness to submit to another test. That issue is governed by the Constitution, not the California Vehicle Code. We should not confuse one for the other.