384 U.S. 757 (1966)
Petitioner Schmerber and a companion had been drinking at a tavern and bowling alley on November 12, 1964.1 Petitioner was driving from the bowling alley about midnight when the car skidded, crossed the road, and struck a tree.2 Both petitioner and his companion were injured and taken to a hospital for treatment.3
A police officer who arrived at the scene shortly after the accident smelled liquor on petitioner's breath and testified that petitioner's eyes were bloodshot, watery, and sort of a glassy appearance.4 The officer saw petitioner again at the hospital within two hours of the accident and noticed similar symptoms of drunkenness.5 He thereupon informed petitioner that he was under arrest and that he was entitled to the services of an attorney, that he could remain silent, and that anything he told the officer would be used against him in evidence.6
At the direction of a police officer, a blood sample was then withdrawn from petitioner's body by a physician at the hospital.7 The chemical analysis of this sample revealed a percent by weight of alcohol in his blood at the time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. 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 Petitioner objected to receipt of this evidence of the analysis on the ground that the blood had been withdrawn despite his refusal, on the advice of his counsel, to consent to the test.8
Petitioner was convicted in Los Angeles Municipal Court of the criminal offense of driving an automobile while under the influence of intoxicating liquor.9 The Appellate Department of the California Superior Court rejected petitioner's contentions and affirmed the conviction.10 The Supreme Court granted certiorari.11
Whether the withdrawal of blood from petitioner over his objection and the admission of the chemical analysis in evidence violated due process of law under the Fourteenth Amendment?12
The Due Process Clause of the Fourteenth Amendment is not offended when blood is withdrawn by a physician in a hospital environment in a simple medically acceptable manner even if the suspect objects.13
No. The extraction was made by a physician in a simple medically acceptable manner in a hospital environment after the officer observed symptoms of intoxication at the scene and again at the hospital.14 These facts parallel the circumstances in Breithaupt where the Court found no due process violation.15 Nothing in the present record indicates that the procedure offended any sense of justice or involved police violence or refusal of a reasonable alternative test request.16
The withdrawal of blood and admission of the analysis did not violate due process of law under the Fourteenth Amendment.17
Related opinions on this issue
Chief Justice Warren dissented on the due process claim. He believed it sufficient to reverse the conviction by reiterating his dissenting opinion in Breithaupt v. Abram.18
Whether the withdrawal of blood from petitioner over his objection and the admission of the chemical analysis in evidence violated petitioner's privilege against self-incrimination under the Fifth Amendment as made applicable to the States?19
The Fifth Amendment privilege against self-incrimination protects an accused only from being compelled to testify against himself or otherwise provide the state with evidence of a testimonial or communicative nature.20 The privilege does not bar compulsion to submit to fingerprinting or blood testing that yields physical evidence.21
No. 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.22 Petitioner's testimonial capacities were in no way implicated and his participation except as a donor was irrelevant to the results of the test which depend on chemical analysis and on that alone.23 The distinction between communicative testimony and real or physical evidence controls and the blood sample falls on the physical evidence side.24
The withdrawal of blood and admission of the analysis did not violate the privilege against self-incrimination under the Fifth Amendment.25
Related opinions on this issue
Justice Black dissented arguing that the compulsory extraction of blood had both a testimonial and communicative nature.26 The sole purpose of the project was to obtain testimony from the analyst to prove that petitioner had alcohol in his blood at the time of arrest.27 Black contended that the Court's narrow reading of the privilege departed from the liberal construction required by Boyd v. United States and Counselman v. Hitchcock.28
He maintained that blood analysis communicates guilt just as effectively as compelled papers or statements would.29 Black criticized the restrictive terminology as echoing Professor Wigmore's campaign to limit the privilege within the strictest possible bounds.30
Justice Harlan concurred in the Court's opinion on the self-incrimination issue. While agreeing with the Court that the taking of this blood test involved no testimonial compulsion he would go further and hold that apart from this consideration the case in no way implicates the Fifth Amendment.31 Harlan emphasized that the Fifth Amendment simply does not apply to the extraction of physical evidence such as blood.32
He viewed the entire claim as falling outside the amendment's protection regardless of any distinction between testimonial and physical evidence.33
Whether the withdrawal of blood from petitioner over his objection and the admission of the chemical analysis in evidence violated his right to counsel under the Sixth Amendment?34
No. Since petitioner was not entitled to assert the privilege against self-incrimination he has no greater right because counsel erroneously advised him that he could assert it.37 The 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.38
The withdrawal of blood and admission of the analysis did not violate the right to counsel under the Sixth Amendment.39
Whether the withdrawal of blood from petitioner over his objection and the admission of the chemical analysis in evidence violated his right to be free from unreasonable searches and seizures under the Fourth Amendment as made applicable to the States?40
No. There was plainly probable cause for the officer to arrest petitioner based on the smell of liquor and observation of bloodshot watery glassy eyes at the scene and similar symptoms at the hospital.43 The officer might reasonably have believed he was confronted with an emergency. Delay to obtain a warrant threatened destruction of evidence because the percentage of alcohol in the blood begins to diminish shortly after drinking stops.44 The test was performed by a physician in a hospital environment according to accepted medical practices.
Extraction of blood is a highly effective means involving virtually no risk trauma or pain for most people.45
The withdrawal of blood and admission of the analysis did not violate the right to be free from unreasonable searches and seizures under the Fourth Amendment.46
Related opinions on this issue
Justice Douglas dissented adhering to his views in Breithaupt.47 He argued that the forcible blood test constitutes a clear invasion of the right of privacy.48 This right is protected by the penumbra of the Bill of Rights including the Fifth Amendment zone of privacy and the Fourth Amendment security of persons.49
Douglas viewed the extraction as no clearer invasion of privacy than forcible bloodletting of the kind involved here.50 He linked the privacy interest directly to the guarantees in the Bill of Rights.51
Justice Fortas dissented stating that under the Due Process Clause the state as prosecutor has no right to extract blood from an accused over protest.52 The extraction is an act of violence and the state has no right to commit any kind of violence upon the person or to utilize the results of such a tort.53 Fortas would reverse on this independent due process ground.54
He emphasized that the state's role as prosecutor precludes any right to commit violence on the person of the accused.55