2nd Drunk Driving Test Requires Need, Court Says

A person arrested for drunk driving must submit to one test for blood-alcohol level but cannot be legally forced to submit to a second kind of test just because police decide the second test might make for better evidence in court, a state appeal court in San Diego ruled Monday.

Reversing the drunk-driving conviction of a San Diego man, the 4th District Court of Appeal said that San Diego police were wrong to have physically forced a blood test after obtaining a consentual urine sample.

The convenience of obtaining a better result from a second test is not enough to satisfy the 4th Amendment to the federal Constitution, which bars unreasonable searches and seizures, a three-judge panel of the court ruled unanimously. To be legal, police must show a need for the second test, the panel ruled.

The decision overturned the drunk-driving conviction of Alfred D. Fiscalini, who slammed into an oncoming car two years ago, seriously injuring two elderly women. Fiscalini is serving a six-year prison sentence, prosecutors said.

Barry J. T. Carlton, a deputy state attorney general, said Monday a further appeal, to the California Supreme Court, will be considered. The decision was “a bit of a surprise” because the U.S. Supreme Court has, since 1966, as a general rule allowed police to draw a suspect’s blood without his or her consent, he said.

Tracy L. Emblem, Fiscalini’s Escondido lawyer, said she was “thrilled” but also surprised because the court made no mention of her novel claim--that the second test was illegal because a blood test might have exposed Fiscalini to the AIDS virus.

“I’ve got teen-age children, and I wouldn’t want police to take a blood test and expose them to AIDS,” Emblem said. “But I guess that will be for another time.”

The case stemmed from an accident April 9, 1989, on Imperial Avenue in San Diego. Driving while his license was suspended, Fiscalini crossed the center lane, smacking head-on into a 1976 Datsun driven by Shirley Smartt. Smartt was just back from church and on her way to the market with Rutha Shipley, Carlton said.

The crash left Smartt with cuts and several broken bones. Shipley was unconscious for four days, had several bones broken and needed plastic surgery for facial cuts, Carlton said.

At the police station, an officer asked Fiscalini to provide either a blood, breath or urine test. California law gives a drunk-driving suspect the option of those three. Fiscalini chose the urine test.

Later, police asked Fiscalini to also provide a blood sample, because the officer believed that was the best means of testing blood-alcohol level, the 4th District court said.

Fiscalini refused. Police handcuffed him, walked him to a chair and made him sit in it with his hands behind the back of the chair. While a technician drew blood from Fiscalini’s arm, police “placed a baton in front of the chair to keep Fiscalini from kicking,” Judge Daniel J. Kremer said for the court.

Emblem offered a different version of events. She said Monday that police pressure on the billy club was so severe it dislocated Fiscalini’s shoulder.

Chemical analysis put Fiscalini’s blood-alcohol level at 0.13, above the legal limit, which was then 0.10. The current limit, which went into effect last year, is 0.08.

On Oct. 19, 1989, San Diego Superior Court Judge Michael J. Wellington denied Fiscalini’s bid to suppress the test results, ruling that both the police use of force and the second test itself were reasonable.

After a trial, Fiscalini was convicted Nov. 7, 1989, of drunk driving causing injury to more than one victim and several lesser charges, including being under the influence of a controlled substance, driving with a suspended license, and possessing marijuana. The next month, he was sentenced to six years in state prison.

Without elaboration, Kremer said Monday that the police use of force had been reasonable. But he said that the second test itself was unreasonable because one officer’s opinion that blood was the best test for detecting alcohol showed no compelling need for a second sample.

Without that need, the second test violated Fiscalini’s constitutional rights and the drunk-driving conviction had to be overturned, Kremer said.