The Forcible Extraction of Blood in Impaired Driving Cases: How Much Force Is Too Much Force?

The lead story in the January 30, 2012 issue of North Carolina Lawyer’s Weekly was headlined “Necessary’s Restraint:  The night police officer Richard Necessary sat on a drunk-driving suspect in order to get a blood sample might prove to be the night when courts realized enough is enough.” The newspaper reported that a superior court judge recently dismissed impaired driving charges against Kelvin Wilson, apparently after determining that the withdrawal of Wilson’s blood violated his constitutional rights. The Winston-Salem Journal’s coverage of the story is available here. Both newspapers report that the State has appealed the order dismissing the case to the court of appeals.

Given recent attention focused on the issue of forcible blood draws, I thought it might be useful to review the constitutional framework for evaluating whether an officer’s use of force in this context violates the Fourth Amendment. An officer who has (1) probable cause to believe a person has committed an offense involving impaired driving, (2) a clear indication that the blood sample will provide evidence of the defendant’s impairment, and (3) either a search warrant or exigent circumstances, may compel a person to submit to a forced extraction of blood. Schmerber v. California, 384 U.S. 757 (1966).

To satisfy the Fourth Amendment, the forced extraction itself must be performed in a reasonable manner. See Schmerber, 384 U.S. at 771; see also Graham v. Connor, 490 U.S. 386 (1989) (claims that a law enforcement officer has used excessive force in the course of an arrest or other seizure should be analyzed under the Fourth Amendment’s reasonableness standard).  Schmerber determined that the extraction of the defendant’s blood “by a physician in a hospital environment according to accepted medical practices,” was a reasonable search. Id. at 771.  Because, however, the petitioner in Schmerber, while objecting to the withdrawal of his blood, did not forcibly resist, Schmerber provides little guidance in determining the degree of force that may be utilized to obtain a nonconsensual blood sample.

While North Carolina’s courts have acknowledged the constitutionality of a compelled blood draw performed by a medical professional in a medical setting, see State v. Fletcher, 202 N.C. App. 107 (2010) and State v. Davis, 142 N.C. App. 81 (2001), no North Carolina appellate court opinion has addressed the extent of the force that may be utilized in association with the compulsion.

Courts in several other jurisdictions have addressed this issue, though the analysis varies too greatly to glean any generally applicable principles beyond the framework set forth above.  For example, the Michigan Court of Appeals has adopted a comparatively more expansive view of what constitutes reasonable force, holding in People v. Hanna, 567 N.W.2d 12 (Mich. App. 1997), that police acted reasonably in briefly using “Do-Rite” sticks (a device consisting of plastic rods connected with a cord that is utilized by wrapping the cord around a person’s pressure points and pulling or twisting the rods) to subdue a defendant for purposes of withdrawing his blood pursuant to a search warrant.  The Hanna Court determined that the nature and quality of the intrusion was not severe, unnecessary, or unduly intrusive, explaining:  “[D]efendant was so combative that handcuffs and bed restraints would not have effectively prevented him from moving during the drawing of his blood.  Even if the two officers were large and strong enough to control the defendant without using Do-Rite sticks, it is doubtful whether the force exerted in physically overpowering, positioning, and holding the combative defendant would have been less violent or caused less pain than the Do-Rite sticks.” Id. at 15.

Similarly, a federal district court in Laskey v. Legates, 519 F. Supp.2d 449 (D. Del. 2007), determined that the plaintiff failed to demonstrate for purposes of his civil action under 42 U.S.C. § 1983 that the amount of force used by the officers in securing his blood for analysis in an impaired driving prosecution was unreasonable. The plaintiff told the arresting officer on the way to the hospital, “You better get the big boys because there is no way you are getting blood from [me].” After a struggle with the plaintiff in the hospital parking lot, officers shackled his legs and carried him into the hospital.  The officers placed the plaintiff on a bed, and three of them held his arms and legs down while a nurse drew blood.  The court granted summary judgment in favor of the officers, finding that no material fact existed as to whether the amount of force was unreasonable “in light of the facts and circumstances confronting the officers.”

In contrast, the New Jersey Supreme Court in State v. Ravatto, 777 A.2d 301 (N.J. 2001), adopted a narrower view of the reasonable degree of force in such circumstances, holding that the use of several people and mechanical constraints to restrain the DWI defendant for purposes of extracting blood as he flailed and shouted was unreasonable given the defendant’s fear of needles, his violent reaction, and his expressed willingness to submit to a breath test.  The court considered this last factor relevant despite the fact that no breath-testing instrument was available at the hospital to which the defendant had been transported for medical treatment. Id. at 245.

Decades ago, the United States Court of Appeals for the Ninth Circuit, sitting en banc in Hammer v. Gross, 932 F.2d 942 (9^th Cir. 1991), was stymied in its efforts to collectively define excessive force in this context.  A majority of the court ruled that there was evidence from which a rational jury could find that officers used unreasonable force in extracting the plaintiff’s blood in connection with his arrest for impaired driving, but only a four-judge plurality agreed on a four-factor analysis for making that determination:  (1) the plaintiff actively resisted the extraction of his blood;  (2) the plaintiff was arrested for a misdemeanor offense; (3) the defendant agreed, after some force had been applied, to submit to a breath test; and (4) if the authorities had obtained a breath sample, they likely would not have needed the blood sample.  Id. at 846 (plurality op.). Two other judges concluded that the forcible extraction of the plaintiff’s blood was rendered unreasonable solely by the plaintiff’s agreement to submit to an alternative test. Id. at 851 (Kozinski, J., concurring in part).

The reports regarding Wilson’s case suggest that the North Carolina Court of Appeals may be called upon to provide guidance regarding the force officers may use to extract blood in an impaired driving case.  If that happens, I’ll be sure to revisit this issue in a future post.