Driver Wins Case Against Newport in Blood-Test Suit

A federal jury in Los Angeles Thursday awarded $15,500 to a Hawaii restaurateur who was forced to take a blood test after Newport Beach police stopped him for drunk driving.

The jury in the civil rights case awarded Timothy Hammer, 27, a former Orange County resident who now runs a restaurant in Oahu, $3,500 in compensatory damages and $12,000 in punitive damages.

Jurors deliberated two hours and 50 minutes before assessing $10,500 in punitive and compensatory damages against Charles R. Gross, now a law enforcement consultant living in Newport Beach, who was the police chief in June, 1985, when Hammer was arrested.

Jurors also assessed $2,500 in punitive and compensatory damages against Armando Zatarain, the officer who stopped Hammer and ordered his blood drawn, and $2,500 in compensatory damages against the city.

“The lesson to be learned from this case is that police are not outside the law, and when police illegally cause a forced blood test to be given, they’ll be punished for it,” said Stephen Yagman, Hammer’s attorney.

The jury decided that by forcing Hammer to submit to the blood test, police had used excessive force and violated Hammer’s Fourth Amendment rights barring illegal search and seizure, Yagman said.

Hammer had sought $10 million in damages.

City Atty. Robert Burnham said that the city would immediately ask the federal court judge to overrule the jury’s decision and that if that fails, “I will recommend (that) the City Council appeal the decision.

“The amount of force used was minimal,” Burnham said. “The individual was held briefly to allow the sample to be drawn.”

Hammer was stopped on suspicion of drunk driving in June, 1985 and taken to Hoag Memorial Hospital Presbyterian in Newport Beach. There, handcuffed to a chair, Hammer was forced to submit to a blood test even though he said he did not not want his blood to be drawn, Yagman said.

Under California law, anyone arrested for drunk driving who refuses to take a blood-alcohol test can lose his driver’s license for six months.

Hammer was later convicted of driving under the influence of alcohol. He had never denied driving under the influence, so that conviction was not an issue in his civil rights suit.

Yagman said the jury’s finding that a forced blood test was excessive force will be binding in the case of another Orange County resident, Steven Nick Bohunis, who was arrested for drunk driving in February, 1985. He alleges that he was “beaten senseless” by six Newport Beach police officers while being forced to submit to a blood test.

Bohunis’ $10-million civil rights suit against the Newport Beach Police Department is scheduled to go to trial later this month.

Burnham disagreed that any precedent had been set, adding, “I think this decision is going to be on appeal before the Bohunis case goes to trial.”

Burnham also said he would be recommending to the council that the city, rather than Gross or Zatarain, pay punitive damages in Hammer’s case.

Yagman, however, insisted that state law bars a city from reimbursing its employees for punitive damages. And Yagman said he would seek to collect damages from Gross, the former police chief, in the next 10 days.

“We’re going to attach his yacht,” Yagman said cheerfully.

Gross said Thursday night that he would not comment on the jury’s ruling, but he added, “I don’t have a yacht.”

‘Shock the Conscience’

Gross lives on a street named Yacht Mischief, which Yagman apparently confused with a real boat.

Told of this, Yagman said: “So he doesn’t own a yacht. He lives in a house. So we’ll attach his house.”

Gross took the stand Wednesday and denied that officers had used excessive force to obtain blood samples. Explaining department policy, he said, “Force may be used to take the blood as long as the force does not shock the conscience.”

Under questioning by Yagman, Gross declined to define what he meant by “shock the conscience.”

According to Yagman, a Hoag nurse testified in the two-day trial that in the last 2 1/2 years she had administered 200 to 300 of the forced blood tests at the direction of Newport Beach police officers.

“They’ve been doing this for years,” Yagman said. “This is the first time they’ve been nailed.”

Gross, who was police chief for 10 years, retired in July, 1986. In March of that year, a 700-page audit by the National League of Cities suggested that his department’s aggressive policing policy should be re-examined because of excessive lawsuits and complaints against it.

“The continuous complaints and claims of excessive force are--whether unfounded or not--contributing to an undesirable image for the department,” the report said.

More than 100 lawsuits and claims accusing the Police Department of excessive force, false arrest or civil rights violations were filed against the department in 1978-86.