Schmerber v. California/Dissent Fortas

Mr. Justice FORTAS, dissenting.

I would reverse. In my view, petitioner's privilege against self-incrimination applies. I would add that, under the Due Process Clause, the State, in its role as prosecutor, has no right to extract blood from an accused or anyone else, over his protest. As prosecutor, the State has no right to commit any kind of violence upon the person, or to utilize the results of such a tort, and the extraction of blood, over protest, is an act of violence. Cf. Chief Justice Warren's dissenting opinion in Breithaupt v. Abram, 352 U.S. 432, 440, 77 S.Ct. 408, 412, 1 L.Ed.2d 448.