People v. Haeussler

CARTER, J.

I dissent.

I cannot agree that the admission of testimony concerning the results of the blood test taken without defendant’s consent was not a denial of due process. Defendant was uncon *264 scious when the blood sample was taken by the insertion of a hypodermic needle. This necessitated the use of force, however slight, and was an invasion of the privacy of her body. It may be admitted that the force used here was not so brutal or shocking as that used in People v. Rochin, 101 Cal.App.2d 140, 143 [ 225 P.2d 1, 913 ] ; Rochin v. California, 342 U.S. 165 [ 72 S.Ct. 205 , 96 L.Ed. 183 , 25 A.L.R.2d 1396 ], but it still remains that force was used on the body of a person unable to protect herself, or even to remonstrate against the use of such force.

The illustrations used by the majority to demonstrate that the taking of blood tests, in a medically approved manner, do not “smack” of brutality, are not persuasive. First, it is suggested that millions of young men have been subjected to such tests as an incident to induction into military service, that blood tests are required of those applying for a marriage license, of pregnant women during prenatal care, or prior to their delivery. Not one of these groups was accused of a crime—not one of them was composed of unconscious persons. All of them had a choice—that of compliance or refusal. Defendant here had no such choice. A sample of blood was taken from her while in an unconscious state and the results of that test were given in evidence against her. In my opinion, this violates her personal guarantee, not only of due process of law, as guaranteed by both Constitutions, but of the privilege against self-incrimination found in the California Constitution.

Any evidence obtained illegally, and it was certainly as illegally obtained here as if obtained by reason of the search of a person or a home without a search warrant, is in my opinion inadmissible in evidence. I have long been in favor of legislation designed to make such evidence inadmissible in all the courts of this state so that personal privacy may be protected as it was intended to be protected by the Fourth Amendment to the Constitution of the United States and section 19 of article I of the Constitution of California.

In my opinion, the forcible taking of blood for the purpose of making a blood test to use in evidence against that person “shocks the conscience . . . and is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.’’ ( Rochin v. California, supra, at p. 172 .) To take blood from an unconscious person for the purpose of saving that person’s life is justified only on the ground of the humanitarian pur *265 pose involved; to take it for the purpose of making out a criminal case against that person is something else again. As Mr. Justice Jackson said (United States v. Di Re, 332 U.S. 581 [ 68 S.Ct. 222 , 92 L.Ed. 210 ]) our forefathers, “after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment.” I agree with this concept and believe that it delineates the line of demarcation between the American way of life and what we are told may be expected under a totalitarian regime.

Because I believe in the dignity and security of the individual and agree with the framers of the Bill of Rights that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” should “not be violated,” (emphasis added) I cannot sanction the conduct of the prosecution officers in this case, and would, therefore, reverse the judgment.

Schauer, J., concurred.

Appellant’s petition for a rehearing was denied July 28, 1953.