Schmerber v. California

RESPONDENT: California
LOCATION: Where Penn was killed

DECIDED BY: Warren Court (1965-1967)
LOWER COURT: State trial court

CITATION: 384 US 757 (1966)
ARGUED: Apr 25, 1966
DECIDED: Jun 20, 1966

Facts of the case

Schmerber had been arrested for drunk driving while receiving treatment for injuries in a hospital. During his treatment, a police officer ordered a doctor to take a blood sample which indicated that Schmerber had been drunk while driving. The blood test was introduced as evidence in court and Schmerber was convicted.


Did the blood test violate the Fifth Amendment guarantee against self-incrimination?

Media for Schmerber v. California

Audio Transcription for Oral Argument - April 25, 1966 in Schmerber v. California

Earl Warren:

-- 658 Armando Schmerber, Petitioner, versus California.

Mr. McGurrin.

Thomas M. McGurrin:

Yes, Mr. Chief Justice, if it please the Court.

This case is a case which arose in the San Fernando Valley, County of Los Angeles wherein the defendant was driving an automobile somewhere in the neighborhood of midnight and struck a tree.

The defendant actually -- or the petitioner denied the fact that he was driving a car, but it was held that he had in fact then driving the car.

Sometimes subsequent to the petitioner exiting from the car, two police officers arrived at the scene -- one of them observed the petitioner standing by an ambulance and then the petitioner was placed in the ambulance and transported to a hospital.

At the hospital, the officer who had observed the petitioner at the scene, inquired of the passenger of the car and talked with the petitioner and asked the petitioner whether or not he would be willing to take a breathalyzer test to which the petitioner said no.

The officer asked him whether or no he would be willing to take a blood test, according to the officer, the petitioner said yes and the officer went out to obtain a doctor and a nurse.

But when the doctor and the nurse returned, the petitioner then stated no, he would not take a blood test because his attorney had told him not to submit to such a test.

The petitioner in his testimony or in his affidavit indicated that he always refused to take the test.

But, be that as it may, the officer then went out, spoke to his superior officer who apparently directed him to proceed with the test anyway, and the officer advised the doctor to proceed and to extract blood from the petitioner.

The blood was taken and the Los Angeles police officer chemist ran an analysis on the blood test or blood, and arrived at a reading of 0.18 which the chemist testified to would indicate that a person was at the alcohol reading -- at the time, he would be under the influence of intoxicating liquor.

When this blood test initiated to the person, (Inaudible) are there any struggle or --

Thomas M. McGurrin:

No, there was no struggle.

The defendant stipulated at the trial that it was administered in a orderly fashion.

And also though in the affidavit of the defendant, if this may become an issue as far as Your Honor is concerned, the fact is that the defendant had a broken leg or ankle and one fractured rib and was -- and have various lacerations on his body and he told the police, “I won't fight with you but I don't want you to take test in essence.”

Abe Fortas:

That is also the testimony of the police officer, wasn't it?

Thomas M. McGurrin:


There is no dispute about the fact that he said, “Don't, my attorney told me not to.”

Abe Fortas:

And also that he said, “I won't fight you, because even if you take blood, the police officers agreed but they had noted that it was being taken on his objection.

Thomas M. McGurrin:

That's correct.

Yes, Your Honor.

Tom C. Clark:

The test is taken only for the purpose of the violation?

Thomas M. McGurrin:


Tom C. Clark:

And they want to take it in the regular course or the administration of the --

Thomas M. McGurrin:

No, it was taken on the direction of the police officer.

Tom C. Clark:

It wasn't taken like in Breithaupt, along with the usual techniques that the doctor used in determining the illness?

Thomas M. McGurrin:


There was apparently no question relative at that time to any injury which would necessitate the removal of blood and there was never any testimony anywhere in the case or any indication that it was for any other purpose other than the purpose of extracting the blood for the blood alcohol test, because in the officer's testimony, in the presence of the jury, he said that -- for the first time, he said this, that he asked him first with a breathalyzer test which the defendant refused and then he followed that with immediately with the request for the blood.

Tom C. Clark:

He was -- though unconscious at that time?