On December 20, 2007, the Chief Judge of the Delaware Court of Common Pleas issued a well reasoned decision in the matter of State v. Crespo in which the Court held it was unreasonable, pursuant to 21 Del. C. Section 2742, to restrain and forcibly extract blood from a non-consenting 125 pound woman defendant in an unsanitary police station for a misdemeanor first offense DUI.
On the night of May 25, 2005, at approximately 11 pm, a Delaware State Trooper testified that he saw the Defendant’s vehicle strike the median and flatten two tires while making a turn from Ruthar Drive onto Harmony Road. The vehicle continued on for a short distance to Brookhaven Drive where it stopped at a private residence. When the police officer approached the female Defendant, who was then out of the car, she explained that she did not stop when her tires went flat because she did not feel safe, as a female, in stopping her vehicle so late at night on the highway and a relative lived a relatively short distance away. The police officer asked the defendant to perform field tests which she refused because she was not then driving the vehicle and she was on private property. The police officer arrested the defendant and took her back to the State Police Troop No. 6 where she refused to take a breath test and also refused to consent to the extraction of her blood. Upon her refusal the police officer along with a colleague held her down in a chair in the police station and directed a medical technician, under contract to the State Police, to withdraw blood from the defendant. By admission, there is no policy or procedure, written or otherwise, regarding when and how blood is to be taken by the Delaware State Police.
21 Del. C. Section 4742 states:
(a) If a person refuses to permit chemical testing, after being informed of the penalty of revocation for such refusal, the test shall not be given but the police officer shall report the refusal to the Department. The police officer may, however, take reasonable steps to conduct such chemical testing even without the consent of the person if the officer seeks to conduct such test or tests without informing the person of the penalty of revocation for such refusal and thereby invoking the implied consent law. [emphasis added]
The court stated; “The seminal case addressing the issue of blood extraction without consent is the 1966 U.S. Supreme Court case of Schmerber v. California, 384 U.S. 757 (1966).” Schmerber dealt with a DUI arrest and subsequent non-consensual blood extraction from a defendant by a doctor in a hospital. The Schmerber court condoned the forced extraction of blood by a physician in a hospital in a DUI prosecution, but applied a reasonableness standard, with limits, as evidenced the the language quoted from that decision by the Crespo court:
We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the mostrudimentary 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.
The court went on to analyze two more U.S. Supreme Court decisions dealing with the reasonableness test in Fourth Amendment cases. Winston v. Lee, 470 U.S. 753 (1985) and Graham v. Connor, 490 U.S. 386 (1989).
The court then analyzed and distinguished the Delaware Supreme Court case of McCann v. State, Del. Supr., 588 A.d 1100 (1991), in which the Delaware Supreme Court condoned the use of a stun gun upon a Defendant at a hospital to protect the medical technician from the defendant while the technician was extracting blood. The court cites and distinguishes several other Delaware cases by the fact that they all involved the extraction of blood while the defendant was at a hospital and/or the crime at issue was a felony.
The specific holding of the court was:
“I find, absent a policy by the Delaware State Police governing the force[d] [sic] extraction of blood, forcing the Defendant to give her blood at a police station house for a first offense charge of Driving While Under the Influence of Alcohol is unreasonable pursuant to 21 Del. C. Section 2742.”
The case is presently on appeal to the Delaware Superior Court by the State of Delaware.