Shults v. Superior Court

113 Cal. App. 3d 696, 170 Cal. Rptr. 297, 1980 Cal. App. LEXIS 2581

• Court: California Court of Appeal
• Decided: December 19, 1980
• Docket: Civ. 19478
• Status: Published

Opinions

Opinion

PARAS, Acting P. J.

Petitioner herein is the mother of two minor children, a son from a dissolved marriage, and a daughter (Tanya) born in July 1977. Petitioner had been receiving monthly aid to families with dependent children grants under the “absent parent” category for the son since March of 1976 and for Tanya since March of 1977.

Charges of welfare fraud (Welf. & Inst. Code, § 11483) and perjury (Pen. Code, § 118) were filed against petitioner in October 1979, and a preliminary hearing was held on November 8 and 9, 1979. Petitioner was held to answer, and on November 13, 1979, an information was filed charging one count of “fraudulent receipt of aid for child” between November 1976 and July 1979 and 35 counts of perjury from January 1977 to July 1979. The charges for the period preceding March 1977 apparently relate to petitioner’s alleged failure to report the presence of an unrelated adult male in her home; the later charges apparently relate to an additional allegation of failure to report the presence there of Tanya’s father.

On February 5, 1980, the Butte County District Attorney noticed a motion for an order for production of blood samples from petitioner and Tanya to compare with a sample previously obtained pursuant to a search warrant from Tanya’s alleged father and cohabitor.¹ The notice indicated a human leucocyte antigen test would be performed on the samples, which has the potential to supply positive indication of paternity. (See Cramer v. Morrison (1979) 88 Cal.App.3d 873, 878 [153 Cal.Rptr. 865].) The court ordered petitioner to present herself and Tanya for the drawing of blood.

Petitioner applied to this court for a stay order and writ of prohibition. We denied the application. Petitioner then applied to our Supreme Court which ordered us to issue an alternative writ. We complied and now consider the issues presented.

Petitioner contends the order for blood drawing and testing violates Fourth and Fifth Amendment federal constitutional rights and that the court has no jurisdiction to order blood tests of nonparties to a criminal action to facilitate a paternity determination. Amicus curiae Legal Services of Northern California argue that a determination of paternity has little relevance to a charge of falsely reporting the absence of an unrelated adult male from the home and that petitioner’s daughter’s rights are violated by an order which circumvents the statutory procedures and safeguards for paternity determinations. Amicus curiae American Civil Liberties Union Foundation of Northern California, Inc. also argues that the blood test results are irrelevant to the present action and further contends that the order authorizes an unconstitutional search and violates protected privacy rights.

We first note that there is no question but that the court has jurisdiction to order the blood tests. (People v. Bynon (1956) 146 Cal.App.2d 7 [303 P.2d 75]; Evid. Code, § 896.) The issue here involves the Fourth Amendment.

The case is controlled by People v. Scott (1978) 21 Cal.3d 284 [145 Cal.Rptr. 876, 578 P.2d 123]. There the Supreme Court considered requirements for judicially authorized bodily intrusions. (21 Cal.3d at p. 292.) It held that where such authorization is sought, “the issuing authority after finding probable cause to believe the intrusion will reveal evidence of crime, must apply an additional balancing test to determine whether the character of the requested search is appropriate. Factors which must be considered include the reliability of the method to be employed, the seriousness of the underlying criminal offense and society’s consequent interest in obtaining a conviction (cf. Breithaupt v. Abram, supra, 352 U.S. 432, 439 [1 L.Ed.2d 448, 453]; People v. Duroncelay, supra, 48 Cal.2d 766, 772 [312 P.2d 690]), the strength of law enforcement suspicions that evidence of crime will be revealed, the importance of the evidence sought, and the possibility that the evidence may be recovered by alternative means less violative of Fourth Amendment freedoms. (Cf. Bracamonte, supra, 15 Cal.3d at pp. 403-404 [124 Cal.Rptr. 528, 540 P.2d 624].) [If] These considerations must, in turn, be balanced against the severity of the proposed intrusion. Thus, the more intense, unusual, prolonged, uncomfortable, unsafe or undignified the procedure contemplated, or the more it intrudes upon essential standards of privacy, the greater must be the showing for the procedure’s necessity.” (21 Cal.3d at p. 293; italics added.)

The Scott considerations obviously are applicable as much to third parties from whom the prosecution seeks evidence as to criminal defendants. (See People v. Browning (1980) 108 Cal.App.3d 117 [116 Cal.Rptr. 293].) We thus consider the Scott factors as they apply to petitioner and Tanya.² First, the type of blood test ordered yields scientifically reliable results. (Cramer v. Morrison, supra, 88 Cal. App.3d at pp. 877-878.) Second, fraud and perjury, while not life-threatening crimes, are certainly serious offenses violative of the basic fabric of modern society. Third, the “law enforcement suspicions” that the tests will reveal the paternity of the alleged father are supported by testimony at the preliminary examination that he and petitioner lived together since the spring of 1976 and referred to Tanya as their daughter. Fourth, although the evidence will not be determinative of the ultimate issues of fraud and perjury, it is relevant to the threshold issue of Tanya’s paternity and thus petitioner’s alleged false reporting. Fifth, we conceive of no possible alternative means less violative of Fourth Amendment freedoms than the drawing of blood samples to obtain the evidence sought.

Balancing the above considerations, all of which are favorable to the court’s order, against the severity of the proposed intrusion, we conclude the balance is in favor of the taking of samples in a medically approved manner. The taking of blood samples by skilled technicians has long been a routine procedure (Breithaupt v. Abram (1956) 352 U.S. 432, 436-437 [1 L.Ed.2d 448, 451-452, 77 S.Ct. 408]), presenting only a minor bodily intrusion (Scott, supra, 21 Cal.3d at p. 292). It is neither intense, unusual, prolonged, uncomfortable or undignified.³ As long as the usual medical precautions are observed (which is implicit in the phrase “in a medically approved manner”), we find no impediment to the ordering of the tests.

The petition is denied and the alternative writ is discharged.

Carr, J., concurred.

1 Charges against the alleged father had been brought and dismissed when the search warrant was served on him at petitioner’s preliminary hearing.

2 We are not impressed by the asserted difference between the case of Tanya, who is not an actual party to the litigation, and that of petitioner, who is. Regarding evidentiary matters, both generally occupy the same position. (Evid. Code, § 700.)

3 We cannot avoid making the comparison of the blood drawing procedure, involving a simple needle prick and perhaps 10 to 20 seconds of time, with the degrading 15 minute procedure involved in Scott.