§ 3.2.6 Personal Characteristics, including Blood, Breath, DNA, Urine, Gunshot Residue (GSR)
See also § 5.4.2.1, “DUI – Voluntariness of Consent/Implied Consent.” See also § 5.6.3 Evanescent Evidence – Exigency, including Blood-DUI.”
1. Personal Characteristics. Under the Fourth Amendment, it is generally not a search to obtain physical characteristics exposed to the public. See e.g. United States v. Dionisio, 410 U.S. 1 (1973) (no search to obtain voice exemplars and photograph of facial characteristics); United States v. Mara, 410 U.S. 19 (1973) (no search to obtain handwriting exemplars); Cupp v. Murphy, 412 U.S. 291 (1973) (no search to take fingerprints).
In Arizona, A.R.S. § 13-3905 sets forth procedures for seeking a judicial order to detain an individual to obtain evidence of identifying physical characteristics. State v. Jones, 203 Ariz. 1, 8-9, 49 P.3d 273, 280-81 (2002). See
§ 4.5, “Obtaining Physical Characteristics,” infra, for more information about physical characteristic orders under A.R.S. § 13-3905. If the defendant consents to have physical characteristics taken, then no court order under A.R.S. § 13-3905 is required. See State v. Navarro, 201 Ariz. 292, 34 P.3d 971, 977 (App. 2001) (Div. 2) (“Finally, contrary to Navarro’s assertion, because he voluntarily permitted the police to photograph and fingerprint him for identification purposes, A.R.S. § 13-3905 is inapplicable and did not require [the officer] to seek a court order to detain Navarro to obtain identification evidence.”).
But see Romley v. Schneider, 202 Ariz. 362, 45 P.3d 685, 688 (App. 2002) (Div. 1) (fingerprinting of victim at request of defendant violated Victim’s Bill of Rights).
2. Blood, Breath, Urine, GSR. For more on DUI and blood draw issues, see § 5.6.3(1) “Evanescent Evidence – Exigency (including Blood-DUI)” and § 5.4.2.1 “DUI – Voluntariness of Consent/Implied Consent.”
It is a search to draw blood. State v. Jones, 203 Ariz. 1, 49 P.3d 273 (2002) (in the absence of exigent circumstances, a warrant is needed to take blood samples); State v. Flannigan, 194 Ariz. 150, 978 P.2d 127 (App. 1998) (Div. 1) (discussing exigent circumstances). By contrast, “[b]reath tests do not implicate significant privacy concerns;” the “physical intrusion is almost negligible” and is “no more intrusive than collecting a DNA sample by rubbing a swab on the inside of a person’s cheek.” The same cannot be said for blood tests, which require “piercing the skin” and “extracting part...
