ARTICLE: IS THERE A DOCTOR IN THE (STATION) HOUSE?: REASSESSING THE CONSTITUTIONALITY OF COMPELLED DWI BLOOD DRAWS FORTY-FIVE YEARS AFTER SCHMERBER Skip over navigation
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Copyright (c) 2011 West Virginia Law Review
West Virginia Law Review

ARTICLE: IS THERE A DOCTOR IN THE (STATION) HOUSE?: REASSESSING THE CONSTITUTIONALITY OF COMPELLED DWI BLOOD DRAWS FORTY-FIVE YEARS AFTER SCHMERBER

Winter, 2011

West Virginia Law Review

113 W. Va. L. Rev. 381

Author

Michael A. Correll*

Excerpt

A nearly forty-five year-old debate with constitutional implications was rekindled recently by a decision from an intermediate appellate court in Fort Worth, Texas. On November 5, 2009, the Court of Appeals of Texas, Second District, ruled that police officers violated Christi Lynn Johnston's Fourth Amendment protection against unreasonable seizure when, following a DWI arrest, the officers physically restrained her at the police station and drew her blood themselves. 1 Johnston's arrest and the decision to draw her blood without her consent were nothing remarkable. Instead, it was the decision of the officers--trained in basic blood draws but hardly qualified phlebomists--to personally undertake the task of procuring a blood sample in a medically unacceptable way that elevated a simple DWI to a matter of constitutional importance. 2 The Johnston case, though lacking far-reaching precedential value, represents the full realization of the precise constitutional concerns that accompanied the Supreme Court's original acceptance of compelled bodily invasions for the recovery of evidence in Schmerber v. California. 3

With the advances in forensic science in the intervening decades since the Schmerber decision, the human body has become an increasingly important source of valuable, necessary, and expected evidence. In that same time, the Fourth Amendment jurisprudence underlying bodily seizures has diverged along numerous and incongruous paths in the various federal circuits and state court systems. Nowhere has this development been more prolific or more divergent than the area of DWI blood draws for the purpose of accurately assessing blood alcohol content (BAC). The widespread ...
 
 
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