Court Leaves Intact Ban on Police Taking Blood Forcibly

Police may not use physical force to draw blood from a drunk driving suspect under a ruling in a Newport Beach case that the U. S. Supreme Court let stand Monday.

Under California law, police can insist that apparently intoxicated motorists submit to a test--whether of their breath, urine or blood--as a condition of maintaining their driving licenses.

But the U. S. 9th Circuit Court of Appeals said that Newport Beach police went too far when they handcuffed a drunk driving suspect to a hospital chair and allegedly held him by the shoulders as a nurse drew blood from his arm.

The suspect, Timothy Hammer, had been arrested at 4 a.m. on June 23, 1985, allegedly for driving erratically. He initially refused to take a breath test. Officers then took him to Hoag Hospital in Newport Beach to have a blood sample taken.

Based on the results, Hammer pleaded guilty to driving under the influence of alcohol but filed a damage suit against the city and its police officers for violating his constitutional rights. The Fourth Amendment forbids “unreasonable searches,” and in May the federal appeals court upheld a $2,500 award against the city. By a 6-5 margin, the appeals court said that the force used to restrain Hammer was “unreasonable.”

Despite an appeal by Newport Beach, joined by attorneys for California and 10 other states, the Supreme Court without comment or dissent let stand the appeals court ruling and the damage verdict in the case.

State attorneys said that the decision could “seriously impede” the enforcement of the laws against drunk driving and could “encourage physical resistance and game-playing by drunk driving suspects.”

Judge Ferdinand F. Fernandez, speaking for the five dissenters on the appeals court, said that “the effect of the decision is that blood cannot be extracted from a drunk who refuses to have it done . . particularly so if the drunk is willing to become the least bit physical about it.”

Los Angeles attorney Stephen Yagman, who represented Hammer, agreed, adding: “I think police in California are not going to use force at all anymore to compel a drunk driving suspect to submit to a blood test.”

In 1990, police in California made 353,886 arrests for misdemeanor drunk driving and 12,799 arrests for felony drunken driving, usually because the intoxicated motorist caused an accident that injured another person.

Attorneys for Newport Beach and the state of California said the high court’s action leaves the law muddled on what police officers can do when confronted with a recalcitrant drunk driver.

“This makes the law confused and murky. That’s why we wanted the (Supreme) court to hear this case,” said Newport Beach City Atty. Robert Burnham.

In 1966, the Supreme Court said police could use limited force to restrain a drunk driving suspect and to require that he submit to a blood test.

But more recently, the justices have said that such a use of force must be “objectively reasonable” in light of the facts of a case.

Applying that somewhat hazy standard, the appeals court said that Newport Beach police went too far when they forcibly took blood from Hammer’s arm even after he belatedly announced that he would agree to a breath test.

“I still think the police can use reasonable force to require the suspect to undergo a chemical test, so long as the officer has considered the alternative tests,” Burnham said. “But I agree the issue is clouded now.”

Since the first civil lawsuits were filed, said Sgt. Andy Gonis, a Newport Beach police spokesman, the department has modified its policy regarding the taking of blood samples from drunk driving suspects.

“We thought we had ample case law at the time to support” the taking of blood, Gonis said. “Now, we have come to find out there is conflicting case law as well. Drunk driving is a serious problem. We used only minimum force, and an unfortunate situation resulted. The officer felt he was acting properly and with an earnest concern for the safety of the community.” Yagman suggested that police officers who use force to obtain blood samples may now face personal liability.

The jury in Hammer’s case against Newport police, then-Chief Charles Gross and Officer Armando Zatarian awarded him $15,500 in damages. But that verdict was reduced by a federal appeals court to $2,500. The court also dismissed Gross and Zatarian as defendants because police officials had not been put on notice that the use of force in such a situation violated the Fourth Amendment.

“This decision makes clear that police who use physical force to compel a blood test are breaking the law. They are on notice now that they can be held personally liable,” Yagman said.

Times staff writer Dan Weikel in Orange County contributed to this story.