Sobolik, Dennis M

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North Dakota Law Review Volume 33 Number 4 Article 4 1957 Constitutional Law - Due Process of Law - Admissibility of Blood Sample Obtained from an Unconscious Person Dennis M. Sobolik Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Sobolik, Dennis M. (1957) "Constitutional Law - Due Process of Law - Admissibility of Blood Sample Obtained from an Unconscious Person," North Dakota Law Review: Vol. 33 : No. 4 , Article 4. Available at: https://commons.und.edu/ndlr/vol33/iss4/4 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. RECENT CASESRECENT CASESCONSTITUTIONAL LAW - DUE PROCESS OF LAW - ADMISSIBILITY OF BLOODSAMPLE OBTAINED FROM AN UNCONSCIOUS PERSON. - Petitioner was convictedof involuntary manslaughter as a result of an automobile collision which killedthree occupants in the other car and seriously injured the petitioner. Aphysician, at the request of a state patrolman, withdrew a sample of bloodfrom the petitioner while he was unconscious. Subsequent laboratory analysisdisclosed that the blood contained .17 per cent alcohol. Petitioner, after havingbeen denied habeas corpus by the Supreme Court of New Mexico, obtaineda writ of certiorari to the United States Supreme Court where he contendedthat his conviction, based as it was on the involuntary blood test, deprivedhim of his liberty without due process of law as guaranteed by the fourteenthamendment. The Court held that the results of a blood test, withdrawn fromthe petitioner while unconscious, were admissible as evidence and did notviolate the requirement of due process of law. Chief Justice Warren, JusticesDouglas and Black dissented. Breithaupt v. Abram, 77 S.Ct. 408 (1957).Evidence secured by federal agents in violation of the Constitution is in-admissible in federal courts.' Since the first ten amendments to the UnitedStates Constitution have no bearing on the states, they are bound only bythe due process clause of the fourteenth amendment,2 thus such evidence isadmissible if obtained by state officers. 3 It is generally recognized that theaccused can consent to various tests and thereby waive his constitutionalrights;4 but the admissibility of evidence obtained from an accused whileunconscious is unsettled. 5The majority of the states are in accord with the common law rule whichstates that illegally obtained evidence is admissible.e The injured party's onlyrecourse is a tort action against the wrongdoer. 7 It is an assault and batteryto subject a person to a blood test against his will, and it is also an invasion1. Weeks v. United States, 232 U.S. 383 (1914).2. Twining v. New Jersey, 211 U.S. 78, 114 (1908). In Jackman v. Rosenbaum, 260U.S. 22 (1922) the Court held that if a practice is of ancient standing in a state, that isa reason for holding it unaffected by the 14th amendment. In Miller v. United States,50 F.2d 505 (3d Cir. 1931) the court stated that the protection against unreasonablesearch and seizures afforded by the 4th amendment is not directed to the individual mis-conduct of state officers.3. Compare Willis v. United States, 85 F.Supp. 745 (S.D. Cal. 1949) with In ReGuzzardi, 84 F.Supp. 294 (N.D. Tex. 1949).4. E.g., Piester v.State, 161 Tex. Crim. R 436, 277 S.W.2d 723 (1955); Brown v.State, 156 Tex. Crim. R 144, 240 S.W.2d 310 (1951).5. State v. Weltha, 228 Ia. 519, 292 N.W. 148 (1940) (Such evidence was inad-missible). Accord, State v. Kroening, 274 Wis. 266, 79 N.W.2d 810 (1956). Contra,People v. Haeussler, 41 Cal.2d 252, 260 P.2d 8 (1953), cert. denied, 247 U.S. 931(1954).6. Wigmore, Evidence § 2183 (3d ed., 1940).7. Nueslein v. District of Columbia, 115 F.2d 690, 695 (D.C. Cir. 1940). But tofollow this procedure means delay, expense, unwanted publicity and to the non-legalmind this affords no remedy to one whose security has already been violated and is al-ready convicted. Furthermore, research denotes very few have sought this redress; fewerstill have been satisfied. However, subsection c of rule 25 of the Uniform Rules of Evi-dence is in accordance with the common law rule. It states, "no person has a privilege torefuse to furnish or to permit the taking of samples of body fluids or substances foranalysis."1957]NORTH DAKOTA LAW REVIEWof the right of privacy.8 At present, many states, including North Dakota,have passed legislation which limits the courts and law enforcement agenciesin procurring evidence by use of chemical tests without consent.9The instant case held that the absence of conscious consent, without more,does not render the taking of fluid a violation of a constitutional right. 1°In Rochin v. California"l the Court would not sanction the use of evidenceprocurred by forcibly pumping the stomach of the accused. The Court statedthat this procedure violated the due process clause as it "shocks the cons-cience of the courts and is bound to offend even hardened sensibilities". Thedissent in the instant case points out that in both the Rochin case and theinstant case evidence which had been obtained from the accused involuntarilywas used to convict him. The dissenting Justices refuse to distinguish betweeninvoluntary extraction of: words from the lips of the accused, contents ofhis stomach, and fluids of his body, when the evidence obtained is usedto convict him.No doubt, it is socially desirable to supress crime, but there is a greatersocial need the law shall not be flouted by enforcement agencies. 12 It issubmitted that the majority decision in the instant case places undue emphasison the needs of speedy and efficient law enforcement at the expense of per-sonal integrity and other constitutional guarantees.DENNIS M. SOBOLIKDAMAGES - INADEQUATE AND EXCESSIVE - ADDITUR. - Plaintiff, a guest,sued his host and the driver of another automobile for injuries sustained inan automobile accident. The trial judge denied plaintiff's motion for a newtrial on the condition that the defendants consent to an increase in the jury'sverdict from $3,000 to $9,830.92. The defendants consented to the "additur"and the plaintiff appealed from the resulting order of the trial court. TheSupreme Court of Minnesota, in affinning the lower court's decision, held8. Bednarik v. Bednarik, 18 N.J.Misc. 633, 16 A.2d 80 (1940). This case repre-sents very sound logic and should he considered in future litigation of this type, however,the case was over-ruled in Cortese v. Cortese, 10 N.J.Super. 152, 76 A.2d 717 (1950).Justice Douglas in Rochin v. Calif., 342 U.S. 165, 179 (1952) (concurring opinion)stated that ". . . words taken from his lips, capsules taken from his stomach and bloodtaken from his veins are all inadmissible provided they are taken from him without hisconsent."9. See N.D. Rev. Code § 39-0801 (1953 Supp.). However, in State v. Severson, 75N.W.2d 316 (N.D. 1956) the court held that evidence of refusal of defendants to takeblood test is inadmissible.10. Still, the courts do protect certain fundamental rights and will not permit articlesto be introduced in evidence which have been obtained without a valid search war-rant, United States v. Di Re, 332 U.S. 581 (1948), nor do they permit the use of in-voluntary confessions, Brown v. Mississippi, 297 U.S. 278 (1936), McNabb v. UnitedStates, 318 U.S. 332 (1943).11. 342 U.S. 165 (1952).12. People v. Defore, 242 N.Y. 13, 150 N.E. 585 (1926). In Watts v. Indiana, 338U.S. 49 (1949), the Court pointed out that society carries the burden of proving itscharge against the accused. Justice Jackson in United States v. Di Re, 332 U.S. 581,595 (1949) stated in regard to finding incriminating evidence without a search warrantthat, "It is said that if such arrests and searches cannot be made, law enforcement willbe more difficult and uncertain. But the forefathers after consulting the lessons of history,designed our Constitution to place obstacles in the way of a too permeating police sur-veillance, which they seemed to think was a greater danger to a free people than theescape of a few criminals from punishment."[VOL. 33

Constitutional Law - Due Process of Law - Admissibility of Blood Sample Obtained from an Unconscious Person

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Constitutional Law - Due Process of Law - Admissibility of Blood Sample Obtained from an Unconscious Person

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