NEEDLES ARE STICKING POINT WITH ATTORNEY

Law: An O.C. lawyer says two Irvine cases pose a constitutional issue.

Barry Simons hates needles.

So when the Laguna Beach attorney heard that Irvine police allegedly forced
a client to take a blood test before charging him with driving under the
influence,he saw more than just a DUI defence.

He saw a constitutional issue.

"A blood test is a serious intrusion," Simons said. "I hate needles. That's
one of the reasons I got involved in this. To say someone has to submit to
that when there are other options is a violation of the law and the
Constitution."

Simons will have a chance to argue his civil-rights suit in federal court
after a favorable ruling Monday by the U.S. Supreme Court.

The suit started out with eight plaintiffs, but six were knocked out of the
suit by an appeals court because they did not express a testing preference
or object to a blood test. The appeals court reversed a federal judge's
decision to throw out the case.

The suit alleges that Mauricio Baez Fernandez, arrested by Irvine police in
January 1996 on suspicion of drunken driving, had agreed to a breath test
but was given a blood test ordered by a police officer.

It also alleges that police would not allow Jeffrey Capler to change his
mind after he was arrested in November 1994. Capler allegedly said he would
take a blood test, then said he wanted a breath test instead, but was refused.

Simons said both DUI cases are still pending.

One reason that a suspect might choose to take a breath test, he said, is
that if he passes, he can just drive away. But if he chooses a blood test,
the suspect's car is towed before the test is given, and he is not allowed
to drive until the results of the tests come back, typically a five-day
wait, he said.

Jeffrey Wertheimer, attorney for Irvine, said, "This is an important issue
for police departments everywhere. The question is, who has ultimate say on
what kind of chemical (evidence) is produced?"

In California, he said, the suspect gets to choose the test. Other state
leave it up to police.

But Wertheimer said police don't have to let suspects know they have a choice.

"If an individual wants a breath test, you have to give it to him. But if
he doesn't request one, and you say, 'We're going to test your blood,'
unless the guy objects, and as long as the test is delivered fairly, that's
OK", he said.

Checked-by: Mike Gogulski