Justices OK Lawsuit Over Irvine Police DUI Testing

The Supreme Court cleared the way Monday for a lawsuit to proceed against the city of Irvine and its police officers for allegedly forcing drunk-driving suspects to take blood tests.

Motorists suspected of driving under the influence of alcohol must take a test. But under California law, the suspect “has the choice of whether the test shall be of his or her blood, breath or urine.” Officers are obliged to tell motorists of their options.

But two Orange County lawyers, Jeffrey Wilens of Irvine and Barry Simons of Laguna Beach, heard from a series of clients who said they were not told of the option when they were arrested by police in Irvine.

“It is a chronic complaint. They are made to take a blood test,” Wilens said of his clients. About 75% of the motorists tested in Irvine end up taking a blood test, compared with 33% elsewhere in the state, he said.

Based on the individual complaints and the statistics, the lawyers brought a suit against the city contending its officers were violating motorists’ constitutional rights. Wilens suggested some prosecutors and police officials were insisting on blood tests in the belief that blood evidence is seen as the most reliable in court.

In May, the U.S. 9th Circuit Court of Appeals, noting that the Constitution’s 4th Amendment forbids “unreasonable searches and seizures” by public officials, ruled that it is unreasonable to force motorists to undergo a blood test when other options are available.

The city appealed to the Supreme Court, insisting the ruling will “significantly undercut law enforcement’s ability to fight drunk driving.” But without a dissenting vote, the high court justices rejected the appeal in Irvine vs. Nelson and sent the case back to a trial judge in Santa Ana.

“The case is really a vindication for individual freedom,” Simons said. “So many of the cases in the drunk-driving area have eroded constitutional rights whenever they’ve gone to appellate courts. We’re really pleased that this case has the opportunity to stand as is.”

Lawyers on both sides said the case is far from ready for trial.

Joel Kuperberg, city attorney for Irvine, said the city will fight the main charge that officers force motorists to take the blood test. He discounted the complaints from the motorists in the lawsuit.

“I must say we are suspicious of factual assertions from people who are drunk,” he said.

He pointed out that the allegations still must be proved. “The city believes that when the facts do come out, they will show that the city acted altogether properly.”

Police Chief Charles Brobeck could not be reached for comment Monday. He has denied that his officers coerce suspects into taking blood tests, saying they follow law requiring them to explain the three choices.

The lawsuit, filed in 1996, includes as defendants Brobeck, three officers and California Forensic Phlebotomy Inc., which has a contract with Irvine to take blood samples from DUI suspects.

The suit says one plaintiff, David Nelson, was asked after his 1995 arrest if he “had a problem” with a blood test and was not advised of the right to select among blood, breath and urine tests.

“Had he been fully advised of his right to select which test to take, and had he been allowed to exercise that right free of coercion, he would have selected the breath or urine test,” the lawsuit states.

Another plaintiff, Mauricio Baez Fernandez, was arrested in 1996 after failing a preliminary breath test in the field. He was taken to the police station, where he was approached by a technician with a syringe, according to the lawsuit.

“The officer advised Fernandez that the technician was ‘going to get a sample’ from him. This was phrased as a command, not a question or a request,” the lawsuit states.

Wilens said his office has spoken to more than 100 people arrested in Irvine who contend that blood tests were forced on them.

But Jeff Wertheimer, a lawyer for the city, said he is “skeptical” about Wilens’ claims. “We’ve gone through all of this and so far he’s got two people,” he said. “There has certainly been a lot of smoke, but they have never been able to produce anything.”