Facts—Armando Schmerber had been convicted of driving an automobile while under the influence of intoxicating liquor. He had been arrested at a hospital while receiving treatment for injuries suffered in an accident involving the automobile he had apparently been driving. Under police direction a physician at the hospital took a blood sample from Schmerber over his protests. Analysis of the sample of blood indicated intoxication, and the trial court admitted this analysis in evidence.

Questions—Does taking a blood sample under these circumstances (a) deny the accused due process of law, (b) abridge the privilege against self incrimination, (c) deny the right to counsel, and (d) constitute unreasonable search and seizure?

Decisions—(a) No; (b) No; (c) No; (d) No.

Reasons—J. Brennan (5–4). (a) The case of Breithaupt v. Abram (352 U.S. 432, 1957) is controlling here. There a similar blood sample was taken while the individual was unconscious. This did not constitute offense against a “sense of justice” and thus there was no denial of due process.

(b) Breithaupt also controls the self-incrimination aspect of the case. The privilege protects an accused person only from being compelled to testify against himself or otherwise provide the state with evidence of a testimonial or communicative nature. The taking and use of the blood sample did not involve compulsion to these ends.

(c) Here there was no issue presented of counsel’s ability to assist Schmerber in respect of any rights he did possess.

(d) As to the search and seizure claim, there was plainly probable cause for the officer to arrest the accused. Further, the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of the evidence’. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.”

Finally, the Court noted that the test was performed in a reasonable manner in a hospital environment according to accepted medical practices and emphasized that the judgment was only on the basis of the facts of the present case.

J. Black argued in dissent that the Court was giving too narrow a reading to the Fifth Amendment provision against self-incrimination and its application to the states.

Note—Schmerber (conscious) must be contrasted with Breithaupt v. Abram (unconscious) and Rochin v. California (protesting and “shock the conscience”). Can a robbery suspect be forced to undergo surgery in order to extract a bullet but in doing so run the risk of incriminating himself? The Court said “No” in Winston v. Lee, 470 U.S. 653 (1985).