Claim The TWU claims that, by deeming a refusal to submit to drug testing as an admission of drug use, the TA policy violates the fifth amendment’s dictate that “[n]o person ... shall be compelled in any criminal case, to be a witness against himself____” U.S. Const. Amend. Y. Among other deficiencies in this claim, the fifth amendment protects only “testimonial communication that is incriminating.” Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 1579, 48 L.Ed.2d 39 (1976) (emphasis in original). We find that the results that would be obtained by drug testing, whether or not compelled, do not constitute testimonial evidence as that term is construed under the fifth amendment. Cf. Schmerber v. California, 384 U.S. 757, 760-65, 86 S.Ct. 1826, 1830-33, 16 L.Ed.2d 908 (1966) (<HOLDING>). Plaintiffs place great reliance on Judge
holding that a warrant to obtain a blood sample was valid despite a reference to a urine sample in the addendum to the affidavit because the minor inconsistency did not seriously undermine the information underlying the probable cause determination holding that a physician employed by the government who drew a blood sample from the defendant for medical not investigatory purposes did not conduct a search under the fourth amendment recognizing problems with generalizing from an extremely limited sample when a broader sample  can be readily obtained and when no showing of the representativeness of the sample is made holding defendant had a reasonable expectation of privacy in blood sample drawn by hospital holding blood sample does not constitute compelled testimony