Court Orders Retrial in Use of Force to Draw Blood : Appeal: Ruling in Newport Beach case involving blood taken from motorist held by police is overturned.

A motorist’s charge that Newport Beach police used excessive force in making him take a blood-alcohol test will be tried again, a federal appeals court has ruled.

The 9th Circuit Court of Appeals said that use of excessive force in making a driver take a blood-alcohol test is unconstitutional and that the trial court judge in a 1988 case involving Newport Beach police did not give proper instructions about this to the jury.

In issuing its ruling May 20, the appeals court threw out the jury verdict, which found in favor of Newport Beach and its officers.

The case involves Steven Bohunis, 33, of Long Beach. In 1985, Newport Beach police arrested Bohunis after his car ran off Jamboree Road.

In court testimony, Bohunis said he was willing to take a Breathalyzer test at the time but was unable to because police held him in a chokehold. He said police handcuffed him and took him to Hoag Hospital to draw blood for a test.

Bohunis admitted in court that he resisted the test and that it took seven police officers to hold him down while a nurse extracted a blood sample.

The test showed Bohunis was intoxicated. But Bohunis sued the city and police in federal court, charging his civil rights had been violated because of “excessive force” in making him take the test.

Bohunis’ lawyer was Stephen Yagman, who in 1987 won a similar case for another motorist who had accused the Newport Beach police of using excessive force in requiring a blood-alcohol test. That driver, Timothy T. Hammer of Hawaii, won $15,500 in damages.

U.S. District Judge Terry J. Hatter Jr. was the judge in the both Hammer’s case in 1987 and Bohunis’ in 1988. But Bohunis’ lawyer charged that Hatter gave different, and erroneous, jury instructions in the 1988 case.

The 9th Circuit Court agreed with Yagman’s argument. The appeals court, in a decision made public Tuesday, said that Hatter erred in not telling the jury in the Bohunis case “that the use of excessive force renders a blood test unconstitutional.”

In a statement Tuesday, Yagman said, “It was inconceivable to me that Judge Hatter, in two cases that were identical and went to trial right after each other, gave two different jury instructions on the crucial issue of excessive force.”

A date for the retrial has not yet been set.

The Newport Beach cases have statewide interest because many police agencies will have blood samples drawn, even if the motorist refuses.

The federal appeals court said that such required tests become unconstitutional if excessive force is used in making the motorist submit to a blood test.