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State v. Dearmas2/13/2004
, 764 A.2d at 1163, 1170. Nevertheless, two justices of this Court in DiStefano were of the opinion that § 12-5-2 did not authorize the seizure of a blood sample, while a third justice, although believing that the issue was not properly before the Court, noted that § 12-5-2's "apparent property-seizure limitations * * * as Justice Goldberg's opinion elucidates, raises very difficult and troubling questions about the propriety of issuing search warrants at all to seize a person's blood." DiStefano, 764 A.2d at 1172 (Flanders, J., concurring in part and dissenting in part). Moreover, despite a plea from Chief Justice Weisberger, in his separate DiStefano opinion, for the Legislature to amend § 12-5-2 and the driving-under-theinfluence laws to provide expressly for the seizure of a suspect's blood, DiStefano, 764 A.2d at 1171, no such statutory change has occurred to date.
And so this case squarely and unavoidably presents the question that a majority in DiStefano addressed but did not decide: whether blood is "property" within the meaning of that term as it is used in § 12-5-2. On that issue, we believe the analysis of that statute that is set forth in the plurality opinion authored by Justice Goldberg in DiStefano remains sound, and that the state has not presented us with a compelling reason to deviate from it.
As that opinion elucidates, construing blood and other body parts seized from living human beings as "property" would raise a host of practical and interpretative problems. Similarly, as this Court observed over a century ago in Pierce with respect to dead bodies, we do not believe that living human beings own their bodies, body parts, and bodily fluids in a manner that would allow us to construe a person's blood as property -- at least in the absence of any evidence that the individual in question had consented to sell or transfer such fluids to any authority seeking the involuntary seizure of that person's blood.
Moreover, were we to construe blood samples to be seized from unconsenting living people as "property," then we would soon face arguments that courts can issue even more intrusive warrants for the seizure of other body parts and biological material, and, indeed, of even living persons themselves if needed to prove a criminal case. In Rochin v. California, 342 U.S. 165, 172, 174 (1952), for example, the Supreme Court of the United States held that the forcible extraction of a prisoner's stomach contents violated his due-process rights. Although we acknowledge that drawing blood does not implicate the same degree of privacy and due-process concerns that were present in Rochin, the forcible extraction and seizure of blood nevertheless involves "an intrusion beyond the body's surface that affects one's human dignity and privacy." DiStefano, 764 A.2d at 1167.
In addition, public-policy concerns militate against construing blood samples as falling within the ambit of the search-warrant statute. Violent confrontations could result if the state were allowed to forcibly extract a blood sample from an unwilling suspect or defendant. See DiStefano, 764 A.2d at 1169 (citing State v. Locke, 418 A.2d 843 (R.I. 1980)). Permitting the state to involuntarily extract blood pursuant to a search warrant or a blood-seizure order also would "create many dangerous and unintended consequences that should be dealt with and prevented by legislative enactment, not by judicial fiat." Id. Given the aforementioned concerns implicated by allowing search warrants to issue for the forcible seizure of blood samples, we are reluctant to conclude that the Legislature intended to extend the warrant authority of our trial courts to include the seizure of blood samples from people suspected o
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