Opinion
No. CV 0822361 S
February 27, 2004
RULING ON MOTION FOR ORDER TO OBTAIN EVIDENCE
The defendant has requested an order of the court to compel the plaintiff to provide a blood sample. The context of the request is as follows. The plaintiff has alleged that she fell outside a McDonald's restaurant and is claiming damages. Information has been presented to the effect that no one witnessed the fall, and shortly after the fall an investigating officer thought that a thin cut line on the plaintiff's face was perhaps not consistent with a fall. He discovered a razor blade in her shoe. The police seized the razor blade and still have it. The police have no current interest in the razor blade other than to comply with the court's wishes. The defendant wishes to have its expert perform DNA testing on the blade and on a sample of the plaintiff's blood to see if there is a match. The plaintiff does not wish to have a sample of her blood taken.
My analysis of the situation is fairly simple. Although this is in the first instance a discovery issue, it is clear that Fourth Amendment considerations are implicated. See, e.g., Erisoty's Appeal from Probate, 216 Conn. 514, 521-22 (1990):
The first legally protected interest that the plaintiff seeks to vindicate is the right to resist an intrusion into his body. The existence of such a legally protected interest is established by Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In Schmerber, a police officer directed a physician to take a blood sample from the defendant, who had been Page 522 arrested for driving while intoxicated, over his objection. Id., 758. The United States Supreme Court held that "compulsory administration of a blood test . . . plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment." Id., 767. The court framed the question as whether the police were justified in requiring Schmerber to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant fourth amendment standards of reasonableness. Id., 768. The court found that these tests were met and affirmed Schmerber's conviction of the charge against him. In so doing, the court stated that "[t]he integrity of an individual's person is a cherished value of our society. Id., 772. This court buttressed this view strongly in State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980), where we stated that "[a] blood test, the most intrusive of the procedures here involved, does not merely constitute an order of discovery; it also constitutes a search and seizure under the federal and state constitutions." See also State v. Acquin, 177 Conn. 352, 354, 416 A.2d 1209 (1979).
The underlying premise of these decisions is the principle that a person has interests in human dignity and privacy that are protected by the fourth amendment to the United States constitution; Schmerber v. California, supra, 769-70; State v. Acquin, supra, 355; and that these interests are adversely affected by an order to submit to a blood test.
See also In re Dalene C., 11 Conn. L. Rptr. 91, 1994 Ct. Sup. 1642 (1994), in which Judge Foley required a fact-intensive hearing before reflexively ordering the taking of blood samples in a paternity action.
Because of the constitutional dimension, I think it is appropriate to require a greater showing of need, and the lack of less intrusive means, before rather cavalierly ordering the requested procedure. A determination of reasonableness, in the Fourth Amendment context, requires such an inquiry. See, e.g., Schmerber, supra; Winston v. Lee, 470 U.S. 753, 758-67 (1986). The movant has the obligation to show, first, the need for the procedure to be performed. Although the pleadings and representations show that the information might be relevant in an evidential sense, there has not yet been demonstrated by admissible evidence the sort of need which typically has justified such intrusions — typically the need is to establish or to defeat the element of identity, a direct consequence of the testing. The need here, at least on what I have seen so far, is somewhat less direct, and some of the evidence to support the defendant's contention is already available.
Second, the lack of less intrusive alternatives has not been advanced by admissible evidence. What is the probability that hair or mouth swab would suffice? What sort of clinical safeguards would be in place? What sort of procedure would be used to take the sample? These are all open questions, and all have an effect on the reasonableness of the proposed search and seizure.
Finally, what is the nature of the plaintiff's objection? Is there a religious basis, or a particular allergy or other concern?
It may be necessary for the parties to schedule an evidentiary hearing to address these concerns. In any event, I agree with Judge Foley that it is not appropriate for a branch of the government to compel such an intrusion into personal matters without a factual showing of reasonableness. The motion is denied without prejudice.
Beach, J.