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Commonwealth v. Blais11/3/1998
scrapings or submit to a blood test. See Cupp v. Murphy, 412 U.S. 291 (1973); Schmerber v. California, 384 U.S. 757 (1966). Accord Matter of a Grand Jury Investigation, supra. On the other hand the Supreme Court has held that the degree of intrusion raises independent constitutional concerns, as where the evidence sought is a bullet which can only be removed surgically with the suspect under anesthesia, Winston v. Lee, 470 U.S. 753 (1985), or by pumping out the contents of the stomach, Rochin v. California, 342 U.S. 165 (1952). The very nature of the tests involved here makes the use of force to compel their performance obviously inappropriate.
Consent only becomes an issue if a person requested or ordered to perform the tests is neither lawfully detained nor arrested. Indeed the defendant here must be taken to concede by his argument that consent is not necessary in the case of an arrest. By our answer to the first question we establish that the tests, although a search or a seizure, are reasonable incidents of a stop as well as of an arrest. It follows that there can be no right to refuse to perform those tests in the case of a lawful stop. If a person, lawfully arrested or detained, is ordered to perform the tests, the order does not violate any right of that person. Consent is not an issue in such cases.
The motion to suppress was properly denied. We answer the reported questions, "No."
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