holding “the driver here was unconscious when the blood was taken, but the absence of conscious consent, without more, does not necessarily render the taking a violation of a constitutional right.” Reasoning in footnote number 2: “it might be a fair assumption that a driver on the highways, in obedience to a policy of the State, would consent to have a blood test made as part of a sensible and civilized system protecting himself as well as other citizens… from the hazards of the road due to drunken driving”
How later courts described this case
- holding “the driver here was unconscious when the blood was taken, but the absence of conscious consent, without more, does not necessarily render the taking a violation of a constitutional right.” Reasoning in footnote number 2: “it might be a fair assumption that a driver on the highways, in obedience to a policy of the State, would consent to have a blood test made as part of a sensible and civilized system protecting himself as well as other citizens… from the hazards of the road due to drunken driving”
- recognizing that “there is nothing ‘brutal’ or ‘offensive in the taking of a sample of blood when done, . . . under the protective eye of a physician” and holding that “a blood test taken by a skilled technician is not such ‘conduct that shocks the conscience’ . . . [or] such a method of obtaining evidence that it offends a ‘sense of justice.’”
- explaining that those entering the military, marrying, or going to college must take blood tests and millions voluntarily donate blood so the ―blood test procedure has become routine in our everyday life‖
- reiterating that conduct that “ ‘shocked the conscience’ and was so ‘brutal’ and ‘offensive’ that it did not comport with traditional ideas of fair play and decency” would violate substantive due process
Written by the judges who cited it.
Later courts went against this
Reported overruled by Mapp v. Ohio, 367 U.S. 643 (1961) — not on the Supreme Court's list
However, the pertinent part of Wolf, which had influenced Breithaupt, had been subsequently overruled in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, as was so pointed out in the later Schmerber opinion, thus neutralizing any vitality of Breithaupt.
Questioned in part by United States v. Miller, 15 C.M.A. 320 (1965)
On the facts of this case, however, it is unnecessary to consider the present scope of Williamson, supra, or the continued validity of so much of Breithaupt as holds that “a blood test [sample] taken by a skilled technician is not such ‘conduct that shocks the conscience,’ . . . nor such a method of obtaining evidence that it offends a ‘sense of justice .
The opinion
Mr. Chief Justice Warren,
with whom Mr. Justice Black and Mr. Justice Douglas join, dissenting.
The judgment in this case should be reversed if Rochin v. California, 342 U. S. 165 , is to retain its vitality and stand as more than an instance of personal revulsion against particular police methods. I cannot agree with the Court when it says, “we see nothing comparable here to the facts in Rochin.” It seems to me the essential elements of the cases are the same and the same result should follow.
There is much in the Court’s opinion concerning the hazards on our nation’s highways, the efforts of the States to enforce the traffic laws and the necessity for the use of modern scientific methods in the detection of crime. Everybody can agree with these sentiments, and yet they do not help us particularly in determining whether this case can be distinguished from Rochin . That case grew out of police efforts to curb the narcotics traffic, in which there is surely a state interest of at least as great magnitude as the interest in highway law enforcement. Nor does the fact that many States sanction the use of blood test evidence differentiate the cases. At the time Rochin was decided illegally obtained evidence was admissible in the vast majority of States. In both Rochin and this case the officers had probable cause to suspect the defendant of the offense of which they sought evidence. In Rochin the defendant was known as a narcotics law violator, was arrested under suspicious circumstances and was seen by the officers to swallow narcotics. In neither case, of course, are we concerned with the defendant’s guilt or innocence. The sole problem is whether the proceeding *441 was tainted by a violation of the defendant’s constitutional rights.
In reaching its conclusion that in this case, unlike Rochin , there is nothing “brutal” or “offensive” the Court has not kept separate the component parts of the problem. Essentially there are two: the character of the invasion of the body and the expression of the victim’s will; the latter may be manifested by physical resistance. Of course, one may consent to having his blood extracted or his stomach pumped and thereby waive any due process objection. In that limited sense the expression of the will is significant. But where there is no affirmative consent, I 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. The Court, however, states that “the absence of conscious consent, without more, does not necessarily render the taking a violation of a constitutional right.” This implies that a different result might follow if petitioner had been conscious and had voiced his objection. I reject the distinction.
Since there clearly was no Consent to the blood test, it is the nature of the invasion of the body that should be determinative of the due process question here presented. The Court’s opinion suggests that an invasion is “brutal” or “offensive” only if the police use force to overcome a suspect’s resistance. By its recital of the facts in Rochin — the references to a “considerable struggle” and the fact that the stomach pump was “forcibly used” * — the Court finds Rochin distinguishable from this case. I cannot accept an analysis that would make physical resistance by a prisoner a prerequisite to the existence of his constitutional rights.
*442 Apart from the irrelevant factor of physical resistance, the techniques used in this case and in Rochin are comparable. In each the operation was performed by a doctor in a hospital. In each there was an extraction of body fluids. Neither operation normally causes any lasting ill effects. The Court denominates a blood test as a scientific method for detecting crime and cites the frequency of such tests in our everyday life. The stomach pump too is a common and accepted way of making tests and relieving distress. But it does not follow from the fact that a technique is a product of science or is in common, consensual use for other purposes that it can be used to extract evidence from a criminal defendant without his consent. Would the taking of spinal fluid from an unconscious person be condoned because such tests are commonly made and might be used as a scientific aid to law enforcement?
Only personal reaction to the stomach pump and the blood test can distinguish them. To base the restriction which the Due Process Clause imposes on state criminal procedures upon such reactions is to build on shifting sands. We should, in my opinion, hold that due process means at least that law-enforcement officers in their efforts to obtain evidence from persons suspected of crime must stop short of bruising the body, breaking skin, puncturing tissue or extracting body fluids, whether they contemplate doing it by force or by stealth.
Viewed according to this standard, the judgment should be reversed.
Actually, the struggle in Rochin occurred in the defendant’s home after the officers had broken in. He was arrested and taken to a hospital, and there was no evidence that he struggled there.