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Johnetta J. v. Municipal Court for San Francisco Judicial District3/20/1990
Petitioner's contention that Scott-Melton prevails over Skinner, however, must fail. First, it is clear that the Scott-Melton line of decisions is based almost entirely on the federal constitutional decisions beginning with Schmerber. Scott 's analysis rests on Schmerber and on California cases such as Bracamonte, which derive their reasoning from federal law. While Bracamonte discusses the state as well as the federal Constitution, it does not enunciate a separate, more stringent test for bodily intrusions than those under federal law. Melton 's mention of the state Constitution, standing alone, does not indicate that California courts would impose a different test than their federal counterparts.
Although Winston and the Scott-Melton line of cases remain valid precedent for the more severe intrusions or actual surgery, Skinner has relegated blood testing to a realm of lesser protection under the Fourth Amendment. " showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable. [Citation.] In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion." (Skinner, supra, 489 U.S. at p. 624 [103 L.Ed.2d at p. 664, 109 S.Ct. at p. 1417].) Skinner declares that the removal of blood for chemical testing is of so minimal a nature that, under certain circumstances, the intrusion can be justified without probable cause in the face of a special need beyond the normal requirements of law enforcement. Harkening back to Schmerber, the Skinner court noted that "the intrusion occasioned by a blood test is not significant, since such 'tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.'" (Skinner, supra, U.S. at p. 625 [103 L.Ed.2d at p. 665, 109 S.Ct. at p. 1417], quoting Schmerber v. California, supra, 384 U.S. at p. 771 [16 L.Ed.2d at p. 920].) "The blood test procedure has become routine in our everyday life." (Breithaupt v. Abram (1957) 352 U.S. 432, 436 [1 L.Ed.2d 448, 451, 77 S.Ct. 408].)
Petitioner argues that the blood testing in this case is not minimal because it is more intrusive than that in Skinner or in the typical driving-under-the-influence
case in that (1) the psychological impact of receiving a positive AIDS test result "has been compared to receiving a death sentence" (Doe v. Roe (1988) 139 Misc.2d 1072 [526 N.Y.S.2d 718, 722]), and (2) the Proposition 96 confidentiality measures are in petitioner's view insufficient and likely to lead to substantial disclosure of the test result and possible discrimination and opprobrium. The former factor is indeed significant, and prompted the Doe court to rule that mandatory AIDS testing in the context of civil litigation conducted absent explicit statutory authority can only be ordered on "a showing of compelling need." (Id., at p. 725; but see People v. Thomas (1988) 139 Misc.2d 1072 [529 N.Y.S.2d 429, 431] [mandatory AIDS testing for criminal defendant accused of sexual assault "entirely reasonable and proper" under the Fourth Amendment].) As will be seen below, however, the governmental interests behind Proposition 96, including the assaulted officer's fear that he or she has in fact been infected, outweighs the psychological impact of the assailant's receipt of a positive test for HIV.
The confidentiality argument merits consideration although, st
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