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Johnetta J. v. Municipal Court for San Francisco Judicial District3/20/1990
y damage, may be compelled to submit to blood testing for alcohol and drugs without a warrant and without probable cause or any sort of individualized suspicion. "The Government's interest in regulating the conduct of railroad employees to ensure safety, like its supervision of probationers or regulated industries, or its operation of a government office, school, or prison, 'likewise presents "special needs" beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.' Griffin v. Wisconsin, 483 U.S. [at pp. 873-874 (97 L.Ed.2d at p. 717)]." (Skinner, supra, 489 U.S. at p. 620 [103 L.Ed.2d at p. 661, 109 S.Ct. at p. 1414].) "This governmental interest in ensuring the safety of the traveling public and of the employees themselves plainly justifies prohibiting . . . employees from using alcohol or drugs on duty, or while subject to being called for duty. This interest also 'require and justif the exercise of supervision to assure that the restrictions are in fact observed.'" (Id., at p. 621 [103 L.Ed.2d at p. 662, 109 S.Ct. at p. 1415, quoting Griffin at p. 875 [97 L.Ed.2d at p. 718].)
Having found a "special need" beyond that of ordinary law enforcement in the regulation of a nationwide transportation industry subject to hazardous events caused by the use of alcohol or drugs in railroad operations, the court then concluded that the need, balanced against the privacy intrusion
of blood testing, made the warrant and probable-cause requirements impractical and justified their disposal.
This court's task would thus seem to be to examine the Skinner analysis in light of the blood testing scheme of Proposition 96 and determine (1) whether the blood testing scheme arises from a "special need" beyond the needs of ordinary law enforcement and (2) if so, whether the intrusion of compulsory blood testing for AIDS, without probable cause or individualized suspicion that the AIDS virus will be found in the tested person's blood, is justified by that need. Petitioner, however, argues that Skinner does not apply here. She contends that a Skinner analysis would "ignore California Supreme Court precedent." Petitioner refers to a line of decisions which formulated a "probable cause-plus" test for forced bodily intrusions for the seizure of evidence.
The line begins with People v. Scott (1978) 21 Cal. 3d 284 [145 Cal. Rptr. 876, 578 P.2d 123], which involved the taking of a semen sample from a child molestation defendant to conduct a test for trichomoniasis, a sexually transmitted disease which the victim had contracted and which she could only have caught from her assailant. "The routine test for trichomoniasis . . . consisted of a manual massage of the prostate gland administered through the rectum and causing a discharge of a sample of semen" for testing for trichomoniasis organisms. (Id., at p. 289.) The People obtained a court order authorizing the test, and the order was challenged on appeal.
Scott marked the first time the Supreme Court considered the applicable legal standard for bodily intrusions with a warrant or an order of court. Beginning with Schmerber 's general proposition that bodily intrusions can violate the Fourth Amendment, the Scott court noted that in prior cases it had held that warrantless intrusions of the body had to be incident to a lawful arrest (People v. Superior Court (Hawkins) (1972) 6 Cal. 3d 757; 762-763 [100 Cal. Rptr. 281, 493 P.2d 1145]) and conducted under exigent circumstances. (People v. Bracamonte (1975) 15 Cal. 3d 394, 401-403 [
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