U.S. Supreme Court Schmerber v. California, 384
U.S. 757 (1966) Schmerber v.
California No. 658 Argued April 25, 1966 Decided June 20, 1966 384
U.S. 757 CERTIORARI TO THE APPELLATE
DEPARTMENT OF THE SUPERIOR COURT OF CALIFORNIA,
COUNTY OF LOS ANGELES Syllabus Petitioner was hospitalized following an accident involving an
automobile which he had apparently been driving. A police officer
smelled liquor on petitioner's breath and noticed other symptoms of
drunkenness at the accident scene and at the hospital, placed him
under arrest, and informed him that he was entitled to counsel,
that he could remain silent, and that anything he said would be
used against him. At the officer's direction, a physician took a
blood sample from petitioner despite his refusal on advice of
counsel to consent thereto. A report of the chemical analysis of
the blood, which indicated intoxication, was admitted in evidence
over objection at petitioner's trial for driving while intoxicated.
Petitioner was convicted, and the conviction was affirmed by the
appellate court, which rejected his claims of denial of due
process, of his privilege against self-incrimination, of his right
to counsel, and of his right not to be subjected to unreasonable
searches and seizures. Held: 1. Breithaupt v. Abram, 352 U.
S. 432 , in which a claim of denial of due process of law
was rejected in a similar situation is controlling as to the due
process aspect. Pp. 384 U. S.
759 -760.

															2. The privilege against self-incrimination is not available to
an accused in a case such as this, where there is not even a shadow
of compulsion to testify against himself, or otherwise provide the
State with evidence of a testimonial or communicative nature. Pp. 384 U. S.
760 -765

															3. Petitioner's limited claim, that he was denied his right to
counsel by virtue of the withdrawal of blood over his objection on
his counsel's advice is rejected, since he acquired no right merely
because counsel advised that he could assert one. Pp. 384 U. S.
765 -766.

															4. In view of the substantial interests in privacy involved,
petitioner's right to be free of unreasonable searches and seizures
applies to the withdrawal of his blood, but, under the facts in
this case, there was no violation of that right. Pp. 384 U. S.
766 -772.

															(a) There was probable cause for the arrest, and the same facts
as established probable cause justified the police in requiring Page 384 U. S. 758 petitioner to submit to a test of his blood alcohol content. In
view of the time required to bring petitioner to a hospital, the
consequences of delay in making a blood test for alcohol, and the
time needed to investigate the accident scene, there was no time to
secure a warrant, and the clear indication that, in fact, evidence
of intoxication would be found rendered the search an appropriate
incident of petitioner's arrest. Pp. 384 U. S.
770 -771.

															(b) The test chosen to measure petitioner's blood alcohol level
was a reasonable one, since it was an effective means of
determining intoxication, imposed virtually no risk, trauma or
pain, and was performed in a reasonable manner by a physician in a
hospital. P. 384 U. S.
771 .

															Affirmed.

															MR. JUSTICE BRENNAN delivered the opinion of the Court.

															Petitioner was convicted in Los Angeles Municipal Court of the
criminal offense of driving an automobile while under the influence
of intoxicating liquor. [ Footnote
1 ] He had been arrested at a hospital while receiving treatment
for injuries suffered in an accident involving the automobile that
he had apparently been driving. [ Footnote 2 ] At the direction of a police officer, a blood
sample was then withdrawn from petitioner's body by a physician at
the hospital. Page 384 U. S. 759 The chemical analysis of this sample revealed a percent by
weight of alcohol in his blood at the time of the offense which
indicated intoxication, and the report of this analysis was
admitted in evidence at the trial. Petitioner objected to receipt
of this evidence of the analysis on the ground that the blood had
been withdrawn despite his refusal, on the advice of his counsel,
to consent to the test. He contended that, in that circumstance,
the withdrawal of the blood and the admission of the analysis in
evidence denied him due process of law under the Fourteenth
Amendment, as well as specific guarantees of the Bill of Rights
secured against the States by that Amendment: his privilege against
self-incrimination under the Fifth Amendment; his right to counsel
under the Sixth Amendment; and his right not to be subjected to
unreasonable searches and seizures in violation of the Fourth
Amendment. The Appellate Department of the California Superior
Court rejected these contentions and affirmed the conviction.
[ Footnote 3 ] In view of
constitutional decisions since we last considered these issues in Breithaupt v. Abram, 352 U. S. 432 -- see Escobedo v. Illinois, 378 U.
S. 478 ; Malloy v. Hogan, 378 U. S.
1 , and Mapp v. Ohio, 367 U.
S. 643 -- we granted certiorari. 382 U.S. 971. We
affirm. I THE DUE PROCESS CLAUSE CLAIM Breithaupt was also a case in which police officers
caused blood to be withdrawn from the driver of an automobile
involved in an accident, and in which there was ample justification
for the officer's conclusion that the driver was under the
influence of alcohol. There, as here, the extraction was made by a
physician in a simple, medically acceptable manner in a hospital
environment. Page 384 U. S. 760 There, however, the driver was unconscious at the time the blood
was withdrawn, and hence had no opportunity to object to the
procedure. We affirmed the conviction there resulting from the use
of the test in evidence, holding that, under such circumstances,
the withdrawal did not offend "that sense of justice' of which
we spoke in Rochin v. California, 342 U.
S. 165 ." 352 U.S. at 352 U. S. 435 . Breithaupt thus requires the rejection of petitioner's due
process argument, and nothing in the circumstances of this case
[ Footnote 4 ] or in supervening
events persuades us that this aspect of Breithaupt should
be overruled. II THE PRIVILEGE AGAINST SELF-INCRIMINATION CLAIM Breithaupt summarily rejected an argument that the
withdrawal of blood and the admission of the analysis report
involved in that state case violated the Fifth Amendment privilege
of any person not to "be compelled in any criminal case to be a
witness against himself," citing Twining v. New Jersey, 211 U. S. 78 . But
that case, holding that the protections of the Fourteenth Amendment
do not embrace this Fifth Amendment privilege, has been succeeded
by Malloy v. Hogan, 378 U. S. 1 , 378 U. S. 8 . We
there held that

															"[t]he Fourteenth Amendment secures against state invasion the
same privilege that the Fifth Amendment guarantees against federal
infringement -- the right of a person to remain silent unless he
chooses to speak in the unfettered exercise of his own will, Page 384 U. S. 761 and to suffer no penalty . . . for such silence."

															We therefore must now decide whether the withdrawal of the blood
and admission in evidence of the analysis involved in this case
violated petitioner's privilege. We hold that the privilege
protects an accused only from being compelled to testify against
himself, or otherwise provide the State with evidence of a
testimonial or communicative nature, [ Footnote 5 ] and that the withdrawal of blood and use of
the analysis in question in this case did not involve compulsion to
these ends.

															It could not be denied that, in requiring petitioner to submit
to the withdrawal and chemical analysis of his blood, the State
compelled him to submit to an attempt to discover evidence that
might be used to prosecute him for a criminal offense. He submitted
only after the police officer rejected his objection and directed
the physician to proceed. The officer's direction to the physician
to administer the test over petitioner's objection constituted
compulsion for the purposes of the privilege. The critical
question, then, is whether petitioner was thus compelled "to be a
witness against himself." [ Footnote
6 ] Page 384 U. S. 762 If the scope of the privilege coincided with the complex of
values it helps to protect, we might be obliged to conclude that
the privilege was violated. In Miranda v. Arizona, ante, at 384 U. S. 460 ,
the Court said of the interests protected by the privilege:

															"All these policies point to one overriding thought: the
constitutional foundation underlying the privilege is the respect a
government -- state or federal -- must accord to the dignity and
integrity of its citizens. To maintain a 'fair state-individual
balance,' to require the government 'to shoulder the entire load,'
. . . to respect the inviolability of the human personality, our
accusatory system of criminal justice demands that the government
seeking to punish an individual produce the evidence against him by
its own independent labors, rather than by the cruel, simple
expedient of compelling it from his own mouth."

															The withdrawal of blood necessarily involves puncturing the skin
for extraction, and the percent by weight of alcohol in that blood,
as established by chemical analysis, is evidence of criminal guilt.
Compelled submission fails on one view to respect the
"inviolability of the human personality." Moreover, since it
enables the State to rely on evidence forced from the accused, the
compulsion violates at least one meaning of the requirement that
the State procure the evidence against an accused "by its own
independent labors."

															As the passage in Miranda implicitly recognizes,
however, the privilege has never been given the full scope which
the values it helps to protect suggest. History Page 384 U. S. 763 and a long line of authorities in lower courts have consistently
limited its protection to situations in which the State seeks to
submerge those values by obtaining the evidence against an accused
through

															"the cruel, simple expedient of compelling it from his own
mouth. . . . In sum, the privilege is fulfilled only when the
person is guaranteed the right 'to remain silent unless he chooses
to speak in the unfettered exercise of his own will.'" Ibid. The leading case in this Court is Holt v.
United States, 218 U. S. 245 .
There the question was whether evidence was admissible that the
accused, prior to trial and over his protest, put on a blouse that
fitted him. It was contended that compelling the accused to submit
to the demand that he model the blouse violated the privilege. Mr.
Justice Holmes, speaking for the Court, rejected the argument as
"based upon an extravagant extension of the Fifth Amendment," and
went on to say:

															"[T]he prohibition of compelling a man in a criminal court to be
witness against himself is a prohibition of the use of physical or
moral compulsion to extort communications from him, not an
exclusion of his body as evidence when it may be material. The
objection in principle would forbid a jury to look at a prisoner
and compare his features with a photograph in proof."

															218 U.S. at 218 U. S.
252 -253. [ Footnote
7 ]

															It is clear that the protection of the privilege reaches an
accused's communications, whatever form they might Page 384 U. S. 764 take, and the compulsion of responses which are also
communications, for example, compliance with a subpoena to produce
one's papers. Boyd v. United States, 116 U.
S. 616 . On the other hand, both federal and state courts
have usually held that it offers no protection against compulsion
to submit to fingerprinting, photographing, or measurements, to
write or speak for identification, to appear in court, to stand, to
assume a stance, to walk, or to make a particular gesture.
[ Footnote 8 ] The distinction
which has emerged, often expressed in different ways, is that the
privilege is a bar against compelling "communications" or
"testimony," but that compulsion which makes a suspect or accused
the source of "real or physical evidence" does not violate it.

															Although we agree that this distinction is a helpful framework
for analysis, we are not to be understood to agree with past
applications in all instances. There will be many cases in which
such a distinction is not readily drawn. Some tests seemingly
directed to obtain "physical evidence," for example, lie detector
tests measuring changes in body function during interrogation, may
actually be directed to eliciting responses which are essentially
testimonial. To compel a person to submit to testing in which an
effort will be made to determine his guilt or innocence on the
basis of physiological responses, whether willed or not, is to
evoke the spirit and history of the Fifth Amendment. Such
situations call to mind the principle that the protection of the
privilege "is as broad as the mischief against which it seeks to
guard." Counselman v. Hitchcock, 142 U.
S. 547 , 142 U. S.
562 . Page 384 U. S. 765 In the present case, however, no such problem of application is
presented. Not even a shadow of testimonial compulsion upon or
enforced communication by the accused was involved either in the
extraction or in the chemical analysis. Petitioner's testimonial
capacities were in no way implicated; indeed, his participation,
except as a donor, was irrelevant to the results of the test, which
depend on chemical analysis and on that alone. [ Footnote 9 ] Since the blood test evidence,
although an incriminating product of compulsion, was neither
petitioner's testimony nor evidence relating to some communicative
act or writing by the petitioner, it was not inadmissible on
privilege grounds. III THE RIGHT TO COUNSEL CLAIM This conclusion also answers petitioner's claim that, in
compelling him to submit to the test in face of the fact that his
objection was made on the advice of counsel, Page 384 U. S. 766 he was denied his Sixth Amendment right to the assistance of
counsel. Since petitioner was not entitled to assert the privilege,
he has no greater right because counsel erroneously advised him
that he could assert it. His claim is strictly limited to the
failure of the police to respect his wish, reinforced by counsel's
advice, to be left inviolate. No issue of counsel's ability to
assist petitioner in respect of any rights he did possess is
presented. The limited claim thus made must be rejected. IV THE SEARCH AND SEIZURE CLAIM In Breithaupt, as here, it was also contended that the
chemical analysis should be excluded from evidence as the product
of an unlawful search and seizure in violation of the Fourth and
Fourteenth Amendments. The Court did not decide whether the
extraction of blood in that case was unlawful, but rejected the
claim on the basis of Wolf v. Colorado, 338 U. S.
25 . That case had held that the Constitution did not
require, in state prosecutions for state crimes, the exclusion of
evidence obtained in violation of the Fourth Amendment's
provisions. We have since overruled Wolf in that respect,
holding in Mapp v. Ohio, 367 U. S. 643 ,
that the exclusionary rule adopted for federal prosecutions in Weeks v. United States, 232 U. S. 383 ,
must also be applied in criminal prosecutions in state courts. The
question is squarely presented therefore, whether the chemical
analysis Page 384 U. S. 767 introduced in evidence in this case should have been excluded as
the product of an unconstitutional search and seizure.

															The overriding function of the Fourth Amendment is to protect
personal privacy and dignity against unwarranted intrusion by the
State. In Wolf, we recognized "[t]he security of one's
privacy against arbitrary intrusion by the police" as being "at the
core of the Fourth Amendment" and "basic to a free society." 338
U.S. at 338 U. S. 27 . We
reaffirmed that broad view of the Amendment's purpose in applying
the federal exclusionary rule to the States in Mapp. The values protected by the Fourth Amendment thus substantially
overlap those of the Fifth Amendment helps to protect. History and
precedent have required that we today reject the claim that the
Self-Incrimination Clause of the Fifth Amendment requires the human
body in all circumstances to be held inviolate against state
expeditions seeking evidence of crime. But if compulsory
administration of a blood test does not implicate the Fifth
Amendment, it plainly involves the broadly conceived reach of a
search and seizure under the Fourth Amendment. That Amendment
expressly provides that "[t]he right of the people to be secure in
their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated. . . ."
(Emphasis added.) It could not reasonably be argued, and indeed
respondent does not argue, that the administration of the blood
test in this case was free of the constraints of the Fourth
Amendment. Such testing procedures plainly constitute searches of
"persons," and depend antecedently upon seizures of "persons,"
within the meaning of that Amendment.

															Because we are dealing with intrusions into the human body,
rather than with state interferences with property relationships or
private papers -- "houses, papers, and Page 384 U. S. 768 effects" -- we write on a clean slate. Limitations on the kinds
of property which may be seized under warrant, [ Footnote 10 ] as distinct from the
procedures for search and the permissible scope of search,
[ Footnote 11 ] are not
instructive in this context. We begin with the assumption that,
once the privilege against self-incrimination has been found not to
bar compelled intrusions into the body for blood to be analyzed for
alcohol contest, the Fourth Amendment's proper function is to
constrain not against all intrusions as such, but against
intrusions which are not justified in the circumstances, or which
are made in an improper manner. In other words, the questions we
must decide in this case are whether the police were justified in
requiring petitioner to submit to the blood test, and whether the
means and procedures employed in taking his blood respected
relevant Fourth Amendment standards of reasonableness.

															In this case, as will often be true when charges of driving
under the influence of alcohol are pressed, these questions arise
in the context of an arrest made by an officer without a warrant.
Here, there was plainly probable cause for the officer to arrest
petitioner and charge him with driving an automobile while under
the influence of intoxicating liquor. [ Footnote 12 ] The police officer who arrived Page 384 U. S. 769 at the scene shortly after the accident smelled liquor on
petitioner's breath, and testified that petitioner's eyes were
"bloodshot, watery, sort of a glassy appearance." The officer saw
petitioner again at the hospital, within two hours of the accident.
There, he noticed similar symptoms of drunkenness. He thereupon
informed petitioner

															"that he was under arrest and that he was entitled to the
services of an attorney, and that he could remain silent, and that
anything that he told me would be used against him in
evidence."

															While early cases suggest that there is an unrestricted

															"right on the part of the government, always recognized under
English and American law, to search the person of the accused when
legally arrested, to discover and seize the fruits or evidences of
crime," Weeks v. United States, 232 U.
S. 383 , 232 U. S. 392 ; People v. Chiagles, 237 N.Y. 193, 142 N.E. 583 (1923)
(Cardozo, J.), the mere fact of a lawful arrest does not end our
inquiry. The suggestion of these cases apparently rests on two
factors -- first, there may be more immediate danger of concealed
weapons or of destruction of evidence under the direct control of
the accused, United States v. Rabinowitz, 339 U. S.
56 , 339 U. S. 72 -73
(Frankfurter, J., dissenting); second, once a search of the
arrested person for weapons is permitted, it would be both
impractical and unnecessary to enforcement of the Fourth
Amendment's purpose to attempt to confine the search to those
objects alone. People v. Chiagles, 237 N.Y. at 197-198,
142 N.E. at 584. Whatever the validity of these considerations in
general, they have little applicability with respect to searches
involving intrusions beyond the body's surface. The interests
in Page 384 U. S. 770 human dignity and privacy which the Fourth Amendment protects
forbid any such intrusions on the mere chance that desired evidence
might be obtained. In the absence of a clear indication that in
fact such evidence will be found, these fundamental human interests
require law officers to suffer the risk that such evidence may
disappear unless there is an immediate search.

															Although the facts which established probable cause to arrest in
this case also suggested the required relevance and likely success
of a test of petitioner's blood for alcohol, the question remains
whether the arresting officer was permitted to draw these
inferences himself, or was required instead to procure a warrant
before proceeding with the test. Search warrants are ordinarily
required for searches of dwellings, and, absent an emergency, no
less could be required where intrusions into the human body are
concerned. The requirement that a warrant be obtained is a
requirement that inferences to support the search

															"be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise
of ferreting out crime." Johnson v. United States, 333 U. S.
10 , 333 U. S. 13 -14; see also Aguilar v. Texas, 378 U.
S. 108 , 378 U. S.
110 -111. The importance of informed, detached and
deliberate determinations of the issue whether or not to invade
another's body in search of evidence of guilt is indisputable and
great.

															The officer in the present case, however, 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 evidence," Preston v. United
States, 376 U. S. 364 , 376 U. S. 367 .
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. Particularly in a case such as this,
where time had Page 384 U. S. 771 to be taken to bring the accused to a hospital and to
investigate the scene of the accident, there was no time to seek
out a magistrate and secure a warrant. Given these special facts,
we conclude that the attempt to secure evidence of blood alcohol
content in this case was an appropriate incident to petitioner's
arrest.

															Similarly, we are satisfied that the test chosen to measure
petitioner's blood alcohol level was a reasonable one. Extraction
of blood samples for testing is a highly effective means of
determining the degree to which a person is under the influence of
alcohol. See Breithaupt v. Abram, 352 U.S. at 352 U. S. 436 ,
n. 3. Such tests are a commonplace in these days of periodic
physical examination, [ Footnote
13 ] and experience with them teaches that the quantity of blood
extracted is minimal, and that, for most people, the procedure
involves virtually no risk, trauma, or pain. Petitioner is not one
of the few who on grounds of fear, concern for health, or religious
scruple might prefer some other means of testing, such as the
"Breathalyzer" test petitioner refused, see n 9, supra. We need not decide
whether such wishes would have to be respected. [ Footnote 14 ]

															Finally, the record shows that the test was performed in a
reasonable manner. Petitioner's blood was taken by a physician in a
hospital environment according to accepted medical practices. We
are thus not presented with the serious questions which would arise
if a search involving use of a medical technique, even of the
most Page 384 U. S. 772 rudimentary sort, were made by other than medical personnel or
in other than a medical environment -- for example, if it were
administered by police in the privacy of the stationhouse. To
tolerate searches under these conditions might be to invite an
unjustified element of personal risk of infection and pain.

															We thus conclude that the present record shows no violation of
petitioner's right under the Fourth and Fourteenth Amendments to be
free of unreasonable searches and seizures. It bears repeating,
however, that we reach this judgment only on the facts of the
present record. The integrity of an individual's person is a
cherished value of our society. That we today told that the
Constitution does not forbid the States minor intrusions into an
individual's body under stringently limited conditions in no way
indicates that it permits more substantial intrusions, or
intrusions under other conditions. Affirmed. [ Footnote 1 ]

															California Vehicle Code § 23102(a) provides, in pertinent part,
"It is unlawful for any person who is under the influence of
intoxicating liquor . . . to drive a vehicle upon any highway. . .
." The offense is a misdemeanor.

															[ Footnote 2 ]

															Petitioner and a companion had been drinking at a tavern and
bowling alley. There was evidence showing that petitioner was
driving from the bowling alley about midnight November 12, 1964,
when the car skidded, crossed the road and struck a tree. Both
petitioner and his companion were injured and taken to a hospital
for treatment.

															[ Footnote 3 ]

															This was the judgment of the highest court of the State in this
proceeding since certification to the California District Court of
Appeal was denied. See Edwards v. California, 314 U.
S. 160 .

															[ Footnote 4 ]

															We

															"cannot see that it should make any difference whether one
states unequivocally that he objects or resorts to physical
violence in protest or is in such condition that he is unable to
protest." Breithaupt v. Abram, 352 U.S. at 352 U. S. 441 .
(WARREN, C.J., dissenting). It would be a different case if the
police initiated the violence, refused to respect a reasonable
request to undergo a different form of testing, or responded to
resistance with inappropriate force. Compare the
discussion at 384 U. S. infra. [ Footnote 5 ]

															A dissent suggests that the report of the blood test was
"testimonial" or "communicative," because the test was performed in
order to obtain the testimony of others, communicating to the jury
facts about petitioner's condition. Of course, all evidence
received in court is "testimonial" or "communicative" if these
words are thus used. But the Fifth Amendment relates only to acts
on the part of the person to whom the privilege applies, and we use
these words subject to the same limitations. A nod or headshake is
as much a "testimonial" or "communicative" act in this sense as are
spoken words. But the terms as we use them do not apply to evidence
of acts noncommunicative in nature as to the person asserting the
privilege, even though, as here, such acts are compelled to obtain
the testimony of others.

															[ Footnote 6 ]

															Many state constitutions, including those of most of the
original Colonies, phrase the privilege in terms of compelling a
person to give "evidence" against himself. But our decision cannot
turn on the Fifth Amendment's use of the word "witness."

															"[A]s the manifest purpose of the constitutional provisions,
both of the states and of the United States, is to prohibit the
compelling of testimony of a self-incriminating kind from a party
or a witness, the liberal construction which must be placed upon
constitutional provisions for the protection of personal rights
would seem to require that the constitutional guaranties, however
differently worded, should have as far as possible the same
interpretation. . . ." Counselman v. Hitchcock, 142 U.
S. 547 , 142 U. S.
584 -585. 8 Wigmore, Evidence § 2252 (McNaughton rev.
1961).

															[ Footnote 7 ] Compare Wigmore's view,

															"that the privilege is limited to testimonial disclosures. It
was directed at the employment of legal process to extract from the
person's own lips an admission of guilt, which would thus take the
place of other evidence."

															8 Wigmore, Evidence § 2263 (McNaughton rev. 1961). California
adopted the Wigmore formulation in People v.
Trujillo, 32 Cal. 2d
105 , 194 P.2d 681 (1948); with specific regard to blood tests, see People v. Haeussler, 41 Cal. 2d
252 , 260 P.2d 8 (1953); People v.
Duroncelay, 48 Cal. 2d
766 , 312 P.2d 690 (1957). Our holding today, however, is not to
be understood as adopting the Wigmore formulation.

															[ Footnote 8 ]

															The cases are collected in 8 Wigmore, Evidence § 2265
(McNaughton rev. 1961). See also United States v.
Chibbaro, 361 F.2d 365 (C.A.3d Cir. 1966); People v.
Graves, 64 Cal. 2d
208 , 49 Cal. Rptr. 386, 388, 411 P.2d 114, 116 (1966);
Weintraub, Voice Identification, Writing Exemplars and the
Privilege Against Self-Incrimination, 10 Vand.L.Rev. 485
(1957).

															[ Footnote 9 ]

															This conclusion would not necessarily govern had the State tried
to show that the accused had incriminated himself when told that he
would have to be tested. Such incriminating evidence may be an
unavoidable by-product of the compulsion to take the test,
especially for an individual who fears the extraction or opposes it
on religious grounds. If it wishes to compel persons to submit to
such attempts to discover evidence, the State may have to forgo the
advantage of any testimonial products of administering the test --
products which would fall within the privilege. Indeed, there may
be circumstances in which the pain, danger, or severity of an
operation would almost inevitably cause a person to prefer
confession to undergoing the "search," and nothing we say today
should be taken as establishing the permissibility of compulsion in
that case. But no such situation is presented in this case. See text at n 13 infra. Petitioner has raised a similar issue in this case in connection
with a police request that he submit to a "breathalyzer" test of
air expelled from his lungs for alcohol content. He refused the
request, and evidence of his refusal was admitted in evidence
without objection. He argues that the introduction of this evidence
and a comment by the prosecutor in closing argument upon his
refusal is ground for reversal under Griffin v.
California, 380 U. S. 609 . We
think general Fifth Amendment principles, rather than the
particular holding of Griffin, would be applicable in
these circumstances, see Miranda v. Arizona, ante at 384 U. S. 468 ,
n. 37. Since trial here was conducted after our decision in Malloy v. Hogan, supra, making those principles applicable
to the States, we think petitioner's contention is foreclosed by
his failure to object on this ground to the prosecutor's question
and statements.

															[ Footnote 10 ] See, e.g., Gouled v. United States, 255 U.
S. 298 ; Boyd v. United States, 116 U.
S. 616 ; contra, People v.
Thayer, 63 Cal. 2d
635 , 47 Cal. Rptr. 780, 408 P.2d 108 (1965); State v.
Bisaccia, 45 N.J. 504, 213 A.2d
185 (1965); Note, Evidentiary Searches: The Rule and the
Reason, 54 Geo.L.J. 593 (1966).

															[ Footnote 11 ] See, e.g. Silverman v. United States, 365 U.
S. 505 ; Abel v. United States, 362 U.
S. 217 , 362 U. S. 235 ; United States v. Rabinowitz, 339 U. S.
56 .

															[ Footnote 12 ]

															California law authorizes a peace officer to arrest

															"without a warrant . . . [w]henever he has reasonable cause to
believe that the person to be arrested has committed a felony,
whether or not a felony has in fact been committed."

															Cal.Penal Code § 836.3. Although petitioner was ultimately
prosecuted for a misdemeanor he was subject to prosecution for the
felony since a companion in his car was injured in the accident,
which apparently was the result of traffic law violations.
Cal.Vehicle Code § 23101. California's test of probable cause
follows the federal standard. People v.
Cockrell, 63 Cal. 2d
659 , 47 Cal. Rptr. 788, 408 P.2d 116 (1965).

															[ Footnote 13 ]

															The blood test procedure has become routine in our everyday
life. It is a ritual for those going into military service, as well
as those applying for marriage licenses. Many colleges require such
tests before permitting entrance, and literally millions of us have
voluntarily gone through the same, though a longer, routine in
becoming blood donors. Breithaupt v. Abram, 352 U.S. at 352 U. S.
436 .

															[ Footnote 14 ] See Karst, Legislative Facts in Constitutional
Litigation, 1960 Sup.Ct.Rev. 75, 82-83.

															MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins,
concurring.

															In joining the Court's opinion, I desire to add the following
comment. While agreeing with the Court that the taking of this
blood test involved no testimonial compulsion, I would go further
and hold that, apart from this consideration, the case in no way
implicates the Fifth Amendment. Cf. my dissenting opinion
and that of MR. JUSTICE WHITE in Miranda v. Arizona, ante, pp. 384 U. S. 504 , 384 U. S.
526 .

															MR. CHIEF JUSTICE WARREN, dissenting.

															While there are other important constitutional issues in this
case, I believe it is sufficient for me to reiterate my dissenting
opinion in Breithaupt v. Abram, 352 U.
S. 432 , 352 U. S. 440 ,
as the basis on which to reverse this conviction. Page 384 U. S. 773 MR. JUSTICE BLACK with whom MR. JUSTICE DOUGLAS joins,
dissenting.

															I would reverse petitioner's conviction. I agree with the Court
that the Fourteenth Amendment made applicable to the States the
Fifth Amendment's provision that "No person . . . shall be
compelled in any criminal case to be a witness against himself. . .
." But I disagree with the Court's holding that California did not
violate petitioner's constitutional right against
self-incrimination when it compelled him, against his will, to
allow a doctor to puncture his blood vessels in order to extract a
sample of blood and analyze it for alcoholic content, and then used
that analysis as evidence to convict petitioner of a crime.

															The Court admits that

															"the State compelled [petitioner] to submit to an attempt to
discover evidence [in his blood] that might be [and was] used to
prosecute him for a criminal offense."

															To reach the conclusion that compelling a person to give his
blood to help the State convict him is not equivalent to compelling
him to be a witness against himself strikes me as quite an
extraordinary feat. The Court, however, overcomes what had seemed
to me to be an insuperable obstacle to its conclusion by holding
that

															". . . the privilege protects an accused only from being
compelled to testify against himself, or otherwise provide the
State with evidence of a testimonial or communicative nature, and
that the withdrawal of blood and use of the analysis in question in
this case did not involve compulsion to these ends."

															(Footnote omitted.) I cannot agree that this distinction and
reasoning of the Court justify denying petitioner his Bill of
Rights' guarantee that he must not be compelled to be a witness
against himself. Page 384 U. S. 774 In the first place, it seems to me that the compulsory
extraction of petitioner's blood for analysis so that the person
who analyzed it could give evidence to convict him had both a
"testimonial" and a "communicative nature." The sole purpose of
this project, which proved to be successful, was to obtain
"testimony" from some person to prove that petitioner had alcohol
in his blood at the time he was arrested. And the purpose of the
project was certainly "communicative" in that the analysis of the
blood was to supply information to enable a witness to communicate
to the court and jury that petitioner was more or less drunk.

															I think it unfortunate that the Court rests so heavily for its
very restrictive reading of the Fifth Amendment's privilege against
self-incrimination on the words "testimonial" and "communicative."
These words are not models of clarity and precision, as the Court's
rather labored explication shows. Nor can the Court, so far as I
know, find precedent in the former opinions of this Court for using
these particular words to limit the scope of the Fifth Amendment's
protection. There is a scholarly precedent, however, in the late
Professor Wigmore's learned treatise on evidence. He used
"testimonial" which, according to the latest edition of his
treatise revised by McNaughton, means "communicative" (8 Wigmore,
Evidence § 2263 (McNaughton rev. 1961), p. 378), as a key word in
his vigorous and extensive campaign designed to keep the privilege
against self-incrimination "within limits the strictest possible."
8 Wigmore, Evidence § 2251 (3d ed. 1940), p. 318. Though my
admiration for Professor Wigmore's scholarship is great, I regret
to see the word he used to narrow the Fifth Amendment's protection
play such a major part in any of this Court's opinions.

															I am happy that the Court itself refuses to follow Professor
Wigmore's implication that the Fifth Amendment Page 384 U. S. 775 goes no further than to bar the use of forced self-incriminating
statements coming from a "person's own lips." It concedes, as it
must so long as Boyd v. United States, 116 U.
S. 616 , stands, that the Fifth Amendment bars a State
from compelling a person to produce papers he has that might tend
to incriminate him. It is a strange hierarchy of values that allows
the State to extract a human being's blood to convict him of a
crime because of the blood's content, but proscribes compelled
production of his lifeless papers. Certainly there could be few
papers that would have any more "testimonial" value to convict a
man of drunken driving than would an analysis of the alcoholic
content of a human being's blood introduced in evidence at a trial
for driving while under the influence of alcohol. In such a
situation, blood, of course, is not oral testimony given by an
accused, but it can certainly "communicate" to a court and jury the
fact of guilt.

															The Court itself, at page 384 U. S. 764 ,
expresses its own doubts, if not fears, of its own shadowy
distinction between compelling "physical evidence" like blood which
it holds does not amount to compelled self-incrimination, and
"eliciting responses which are essentially testimonial." And, in
explanation of its fears, the Court goes on to warn that

															"To compel a person to submit to testing [by lie detectors, for
example] in which an effort will be made to determine his guilt or
innocence on the basis of physiological responses, whether willed
or not, is to evoke the spirit and history of the Fifth Amendment.
Such situations call to mind the principle that the protection of
the privilege 'is as broad as the mischief against which it seeks
to guard.' Counselman v. Hitchcock, 142 U. S.
547 , 142 U. S. 562 ."

															A basic error in the Court's holding and opinion is its failure
to give the Fifth Amendment's protection against Page 384 U. S. 776 compulsory self-incrimination the broad and liberal construction
that Counselman and other opinions of this Court have
declared it ought to have.

															The liberal construction given the Bill of Rights' guarantee in Boyd v. United States, supra, which Professor Wigmore
criticized severely, see 8 Wigmore, Evidence, § 2264 (3d
ed. 1940), pp. 366-373, makes that one among the greatest
constitutional decisions of this Court. In that case, 116 U.S. at 116 U. S.
634 -635, all the members of the Court decided that civil
suits for penalties and forfeitures incurred for commission of
offenses against the law,

															". . . are within the reason of criminal proceedings for all the
purposes of . . . that portion of the fifth amendment which
declares that no person shall be compelled in any criminal case to
be a witness against himself; . . . within the meaning of the fifth
amendment to the constitution. . . . * "

															Obviously, the Court's interpretation was not completely
supported by the literal language of the Fifth Amendment.
Recognizing this, the Court announced a rule of constitutional
interpretation that has been generally followed ever since,
particularly in judicial construction of Bill of Rights
guarantees:

															"A close and literal construction [of constitutional provisions
for the security of persons and property] deprives them of half
their efficacy, and leads to gradual depreciation of the right, as
if it consisted more in sound than in substance. It is the duty of
courts to be watchful for the constitutional rights of the citizen,
and against any stealthy encroachments Page 384 U. S. 777 thereon." Boyd v. United States, supra, at 116 U. S.
635 .

															The Court went on to say, at 116 U. S. 637 ,
that to require

															"an owner to produce his private books and papers, in order to
prove his breach of the laws, and thus to establish the forfeiture
of his property, is surely compelling him to furnish evidence
against himself."

															The Court today departs from the teachings of Boyd. Petitioner Schmerber has undoubtedly been compelled to give his
blood "to furnish evidence against himself," yet the Court holds
that this is not forbidden by the Fifth Amendment. With all
deference, I must say that the Court here gives the Bill of Rights'
safeguard against compulsory self-incrimination a construction that
would generally be considered too narrow and technical even in the
interpretation of an ordinary commercial contract.

															The Court apparently, for a reason I cannot understand, finds
some comfort for its narrow construction of the Fifth Amendment in
this Court's decision in Miranda v. Arizona, ante, p. 384 U. S. 436 . I
find nothing whatever in the majority opinion in that case which
either directly or indirectly supports the holding in this case. In
fact, I think the interpretive constitutional philosophy used in Miranda, unlike that used in this case, gives the Fifth
Amendment's prohibition against compelled self-incrimination a
broad and liberal construction in line with the wholesome
admonitions in the Boyd case. The closing sentence in the
Fifth Amendment section of the Court's opinion in the present case
is enough by itself, I think, to expose the unsoundness of what the
Court here holds. That sentence reads:

															"Since the blood test evidence, although an incriminating
product of compulsion, was neither petitioner's testimony nor
evidence relating to some communicative act or writing by the
petitioner, it was not inadmissible on privilege grounds. " Page 384 U. S. 778 How can it reasonably be doubted that the blood test evidence
was not in all respects the actual equivalent of "testimony" taken
from petitioner when the result of the test was offered as
testimony, was considered by the jury as testimony, and the jury's
verdict of guilt rests in part on that testimony? The refined,
subtle reasoning and balancing process used here to narrow the
scope of the Bill of Rights' safeguard against self-incrimination
provides a handy instrument for further narrowing of that
constitutional protection, as well as others, in the future.
Believing with the Framers that these constitutional safeguards
broadly construed by independent tribunals of justice provide our
best hope for keeping our people free from governmental oppression,
I deeply regret the Court's holding. For the foregoing reasons, as
well as those set out in concurring opinions of BLACK and DOUGLAS,
JJ., in Rochin v. California, 342 U.
S. 165 , 342 U. S. 174 , 342 U. S. 177 ,
and my concurring opinion in Mapp v. Ohio, 367 U.
S. 643 , 367 U. S. 661 ,
and the dissenting opinions in Breithaupt v. Abram, 352 U. S. 432 , 352 U. S. 440 , 352 U. S. 442 ,
I dissent from the Court's holding and opinion in this case.

															* A majority of the Court applied the same constitutional
interpretation to the search and seizure provisions of the Fourth
Amendment over the dissent of Mr. Justice Miller, concurred in by
Chief Justice Waite.

															MR. JUSTICE DOUGLAS, dissenting.

															I adhere to the views of THE CHIEF JUSTICE in his dissent in Breithaupt v. Abram, 352 U. S. 432 , 352 U. S. 440 ,
and to the views I stated in my dissent in that case ( id., 352 U. S.
442 ), and add only a word.

															We are dealing with the right of privacy which, since the Breithaupt case, we have held to be within the penumbra of
some specific guarantees of the Bill of Rights. Griswold v.
Connecticut, 381 U. S. 479 .
Thus, the Fifth Amendment marks "a zone of privacy" which the
Government may not force a person to surrender. Id., 381 U. S. 484 .
Likewise the Fourth Amendment recognizes that right when it
guarantees the right of the people to be Page 384 U. S. 779 secure "in their persons." Ibid. No clearer invasion of
this right of privacy can be imagined than forcible bloodletting of
the kind involved here.

															MR. JUSTICE FORTAS, dissenting.

															I would reverse. In my view, petitioner's privilege against
self-incrimination applies. I would add that, under the Due Process
Clause, the State, in its role as prosecutor, has no right to
extract blood from an accused or anyone else, over his protest. As
prosecutor, the State has no right to commit any kind of violence
upon the person, or to utilize the results of such a tort, and the
extraction of blood, over protest, is an act of violence. Cf. CHIEF JUSTICE WARREN's dissenting opinion in Breithaupt v. Abram, 352 U. S. 432 , 352 U. S.
440 .