Breithaupt v. Abram , 77 S. Ct. 408 ( 1957 )

Mr. Justice Clark

delivered the opinion of the Court.

Petitioner, while driving a pickup truck on the highways of New Mexico, was involved in a collision with a passenger car. Three occupants of the car were killed and petitioner was seriously injured. A pint whiskey bottle, almost empty, was found in the glove compartment of the pickup truck. Petitioner was taken to a hospital and while he was lying unconscious in the emergency room the smell of liquor was detected on his breath. A state patrolman requested that a sample of petitioner’s blood be taken. An attending physician, while petitioner was unconscious, withdrew a sample of about 20 cubic centimeters of blood by use of a hypodermic needle. This sample was delivered to the patrolman and subsequent laboratory analysis showed this blood to contain about .17% alcohol.

Petitioner was thereafter charged with involuntary manslaughter. Testimony regarding the blood test and its result was admitted into evidence at trial over petitioner’s objection. This included testimony of an expert that a person with .17% alcohol in his blood was under the influence of intoxicating liquor. Petitioner was convicted and sentenced for involuntary manslaughter. He did not appeal the conviction. Subsequently, however, he sought release from his imprisonment by a petition for a writ of habeas corpus to the Supreme Court of New Mexico.¹ That court, after argument, denied the writ. 58 N. M. 385, 271 P. 2d 827 (1954). Petitioner contends that his conviction, based on the result of the involuntary blood test, deprived him of his liberty without that due process of law guaranteed him by the Fourteenth Amendment to the Constitution. We granted certiorari, 351 U. S. 906, to determine whether the requirements of the Due Process Clause, as it concerns state criminal proceedings, necessitate the invalidation of the conviction.

It has been clear since Weeks v. United States, 232 U. S. 383 (1914), that evidence obtained in violation of rights protected by the Fourth Amendment to the Federal Constitution must be excluded in federal criminal prosecutions. There is argument on behalf of petitioner that the evidence used here, the result of the blood test, was obtained in violation of the Due Process Clause of the Fourteenth Amendment in that the taking was the result of an unreasonable search and seizure violative of the Fourth Amendment. Likewise, he argues that by way of the Fourteenth Amendment there has been a violation of the Fifth Amendment in that introduction of the test result compelled him to be a witness against himself. Petitioner relies on the proposition that “the generative principles” of the Bill of Rights should extend the protections of the Fourth and Fifth Amendments to his case through the Due Process Clause of the Fourteenth Amendment. But Wolf v. Colorado, 338 U. S. 25 (1949), answers this contention in the negative. See also Twining v. New Jersey, 211 U. S. 78 (1908); Palko v. Connecticut, 302 U. S. 319 (1937); Irvine v. California, 347 U. S. 128 (1954). New Mexico has rejected, as it may, the exclusionary rule set forth in Weeks, supra. State v. Dillon, 34 N. M. 366, 281 P. 474 (1929). Therefore, the rights petitioner claims afford no aid to him here for the fruits of the violations, if any, are admissible in the State’s prosecution.

Petitioner’s remaining and primary assault on his conviction is not so easily unhorsed. He urges that the conduct of the state officers here offends that “sense of justice” of which we spoke in Rochin v. California, 342 U. S. 165 (1952). In that case state officers broke into the home of the accused and observed him place something in his mouth. The officers forced open his mouth after considerable struggle in an unsuccessful attempt to retrieve whatever was put there. A stomach pump was later forcibly used and among the matter extracted from his stomach were found narcotic pills. As we said there, “this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities.” Id:, at 172. We set aside the conviction because such conduct “shocked the conscience” and was so “brutal” and “offensive” that it did not comport with traditional ideas of fair play and decency. We therefore found that the conduct was offensive to due process. But we see nothing comparable here to the facts in Rochin.

Basically the distinction rests on the fact that there is nothing “brutal” or “offensive” in the taking of a sample of blood when done, as in this case, under the protective eye of a physician. To be sure, 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;² and certainly the test as administered here would not be considered offensive by even the most delicate. Furthermore, due process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of “decency and fairness” that has been woven by common experience into the fabric of acceptable conduct. It is on this bedrock that this Court has established the concept of due process. 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. Likewise, we note that a majority of our States have either enacted statutes in some form authorizing tests of this nature or permit findings so obtained to be admitted in evidence.³ We therefore con-elude that a blood test taken by a skilled technician is not such “conduct that shocks the conscience," Rochin, supra, at 172, nor such a method of obtaining evidence that it offends a “sense of justice,” Brown v. Mississippi, 297 U. S. 278, 285-286 (1936).⁴ This is not to say that the indiscriminate taking of blood under different conditions or by those not competent to do so may not amount to such “brutality” as would come under the Rochin rule. The chief law-enforcement officer of New Mexico, while at the Bar of this Court, assured us that every proper medical precaution is afforded an accused from whom blood is taken.⁵

The test upheld here is not attacked on the ground of any basic deficiency or of injudicious application, but admittedly is a scientifically accurate method of detecting alcoholic content in the blood, thus furnishing an exact measure upon which to base a decision as to intoxication. Modern community living requires modern scientific methods of crime detection lest the public go unprotected. The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield.⁶ The States, through safety measures, modern scientific methods, and strict enforcement of traffic laws, are using all reasonable means to make automobile driving less dangerous.⁷

As against the right of an individual that his person be held inviolable, even against so slight an intrusion as is involved in applying a blood test of the kind to which millions of Americans submit as a matter of course nearly every day, must be set the interests of society in the scientific determination of intoxication, one of the great causes of the mortal hazards of the road. And the more so since the test likewise may establish innocence, thus affording protection against the treachery of judgment based on one or more of the senses. Furthermore, since our criminal law is to no small extent justified by the assumption of deterrence, the individual’s right to immunity from such invasion of the body as is involved in a properly safeguarded blood test is far outweighed by the value of its deterrent effect due to public realization that the issue of driving while under the influence of alcohol can often by this method be taken out of the confusion of conflicting contentions.

For these reasons the judgment is

Affirmed.

1 Petitioner sought and was denied a writ of habeas corpus from the District Court for Santa Fe County, New Mexico, on March 7, 1952.

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 a part of a sensible and civilized system protecting himself as well as other citizens not only from the hazards of the road due to drunken driving, but also from some use of dubious lay testimony. In fact, the State of Kansas has by statute declared that any person who operates a motor vehicle on the public highways of that State shall be deemed to have given his consent to submit to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of-his blood. If, after arrest for operation of a motor vehicle while under the influence of intoxicating liquor, the arresting officer has reasonable grounds for the arrest, and the driver refuses to submit to the test, the arresting officer must report this fact to the proper official who shall suspend the operator’s permit. Kan. Gen. Stat., 1949 (Supp. 1955), § 8-1001 through § 8-1007.

3 Forty-seven States use chemical tests, including blood tests, to aid in the determination of intoxication in cases involving charges of driving while under the influence of alcohol. Twenty-three of these States sanction the use of the tests by statute. These, for the most part, are patterned after § 11-902 of the Uniform Vehicle Code prepared by the National Committee on Uniform Traffic Laws and Ordinances. This section makes it unlawful to operate a motor vehicle while under the influence of intoxicating liquor. The finding of the presence of a certain percentage of alcohol, by weight, in the blood of a person gives rise to a presumption that he was under the influence of intoxicating liquor. The twenty-three state statutory provisions include: Ariz. Rev. Stat. Ann., 1956, § 28-692; Del. Code Ann., 1953 (Cum. Supp. 1956), Tit. 11, § 3507; Ga. Code Ann., 1937 (Cum. Supp. 1955), §68-1625; Idaho Code, 1948 (Cum. Supp. 1955), §49-520.2; Burns’ Ind. Stat. Ann., 1952 (Cum. Supp. 1955), §47-2003; Kan. Gen. Stat., 1949 (Supp. 1955), §8-1001 through §8-1007; Ky. Rev. Stat. Ann., 1955, § 189.520; Me. Rev. Stat., 1954, e. 22, § 150; Minn. Stat. Ann., 1945 (Cum. Supp. 1956), § 169.12; Neb. Rev. Stat., 1943 (Reissue of 1952), §39-727.01; N. H. Rev. Stat. Ann., 1955, §262:20; N. J. Stat. Ann., 1937 (Cum. Supp. 1955), §39:4-50.1; McKinney’s N. Y. Laws, Veh. and Traffic Law, § 70 (5); N. D. Laws 1953, c. 247; Ore. Rev. Stat., 1955, § 483.630; S. C. Code, 1952, §46-344; S. D. Code, 1939 (Supp. 1952), §44.0302-1; Tenn. Code Ann., 1955, § 59-1032 to § 59-1033; Utah Code Ann., 1953, § 41-6-44; Va. Code, 1950 (Supp. 1956), §18-75.1 to §18-75.3; Wash. Rev. Code, 1951, §46.56.010; Wis. Laws 1955, c. 510; Wyo. Comp. Stat., 1945 (Cum. Supp. 1955), § 60-414. Other States have accepted the use of chemical tests for intoxication without statutory authority but with court approval. See, e. g., People v. Haeussler, 41 Cal. 2d 252, 260 P. 2d 8 (1953) (blood); Block v. People, 125 Colo. 36, 240 P. 2d 512 (1951) (blood); Touchton v. Florida, 154 Fla. 547, 18 So. 2d 752 (1944) (blood); Illinois v. Bobczyk, 343 Ill. App. 504, 99 N. E. 2d 567 (1951) (breath); Iowa v. Haner, 231 Iowa 348, 1 N. W. 2d 91 (1941) (blood); Breithaupt v. Abram, 58 N. M. 385, 271 P. 2d 827 (1954) (blood); Bowden v. State, 95 Okla. Cr. 382, 246 P. 2d 427 (1952) (blood and urine); McKay v. State, 155 Tex. Cr. R. 416, 235 S. W. 2d 173 (1950) (breath). Still other States accept the practice of the use of chemical tests for intoxication though there does not appear to have been litigation on the problem. See the summary in a report of the Committee on Tests for Intoxication of the National Safety Council, 1955 Uses of Chemical Tests for Intoxication.

The fact that so many States make use of the tests negatives the suggestion that there is anything offensive about them. For additional discussion of the use of these blood tests see Inbau, Self-Incrimination (1950), 72-86.

4 Several States have considered the very problem here presented but none have found that the conduct of the state authorities was so offensive as to necessitate reversal of convictions based in part on blood tests. People v. Duroncelay, 146 A. Cal. App. 96, 303 P. 2d 617 (1956); Block v. People, 125 Colo. 36, 240 P. 2d 512 (1951); State v. Ayres, 70 Idaho 18, 211 P. 2d 142 (1949) (test results were favorable to accused); State v. Cram, 176 Ore. 577, 160 P. 2d 283 (1945). See also State v. Sturtevant, 96 N. H. 99, 70 A. 2d 909 (1950); cf. United States v. Williamson, 4 U. S. C. M. A. 320, 15 C. M. R. 320 (1954). But see Iowa v. Weltha, 228 Iowa 519, 292 N. W. 148 (1940); Wisconsin v. Kroening, 274 Wis. 266, 79 N. W. 2d 810 (1956). But cf. United States v. Jordan, 7 U. S. C. M. A. 452, 22 C. M. R. 242 (1957).

The withdrawal of blood for use in blood-grouping tests in state criminal prosecutions is widespread. See, e. g., Maryland v. Davis, 189 Md. 640, 57 A. 2d 289 (1948); New Jersey v. Alexander, 7 N. J. 585, 83 A. 2d 441 (1951); Commonwealth v. Statti, 166 Pa. Super. 577, 73 A. 2d 688 (1950).

Many States authorize blood tests in civil actions such as paternity proceedings. See, e. g., the discussion in Cortese v. Cortese, 10 N. J. Super. 152, 76 A. 2d 717 (1950). Other States authorize such tests in bastardy proceedings. See, e. g., Jordan v. Davis, 143 Me. 185, 57 A. 2d 209 (1948); State ex rel. Van Camp v. Welling, 6 Ohio Op. 371, 3 Ohio Supp. 333 (1936). For a general discussion of blood tests in paternity proceedings see Schatkin, Disputed Paternity Proceedings (3d ed. 1953), 193-282.

5 In explanation, he advised that by regulation the state police are permitted to obtain blood for analysis only when the blood is withdrawn by a physician. He further advised that it is the customary administrative practice among municipalities to allow blood to be taken only by a doctor. In all cases a competent technician is required to make the laboratory analysis incident to the test. We were assured that in no instance had a municipality or the state police permitted the test to be made without these precautions.

6 National Safety Council, Accident Facts 1956, 43-71.

7 Governors’ Conference Committee, Report on Highway Safety (Nov. 1956); National Committee on Uniform Traffic Laws and Ordinances, Uniform Vehicle Code (Rev. 1956); White House Conference on Highway Safety, Organize Your Community for Traffic Safety (1954).