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State v. DiStefano12/20/2000
ty into non-property.
The majority, however, advances the problematic contention that because they are "not satisfied that one's bodily fluid is property" or "evidence of the commission of a crime" it cannot be seized pursuant to § 12-5-2. What that contention ignores, however, is that it is not the blood that is the evidence being sought by the search warrant, but instead the amount of alcohol or cocaine that is contained in, and is foreign property in the blood. That alcohol and that cocaine was "property" when it went into the defendant's blood stream, and it is still property when later detected, isolated and identified by chemical analysis. The bodily fluid or blood is not the evidence sought by the search warrant, it is instead the alcohol and illegal cocaine that is contained in the blood and which constitutes evidence of a defendant's commission of the crime of driving-under-the-influence. Accordingly, § 12-5-2 permits it to be seized from wherever that incriminating evidence reasonably can be found.
IV. Conclusion
For the reasons above set out, Justice Lederberg and I would respond to Certified Questions One and Two in the negative. Because of the nature of our response to those questions, we need not respond to Certified Question Three, but our response to that question reasonably might be indicated from our brief discussion relating to that question.
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