(concurring in part and dissenting in part):
I concur in part and dissent in part.
As my associates note, no infirmity attaches to accused’s conviction for wrongful possession of narcotics, and accordingly I join them in affirming that finding of guilty. However, I must take exception to their holding that the finding of guilty of unlawful use of a habit-forming drug must be set aside. A short statement of the facts will be of assistance in presenting my views.
When accused was found lying unconscious on his barracks floor, he was removed to the hospital. He was still unconscious and the attending doctor therefore, in accordance with standard procedure, immediately and prior to any examination drew the blood samples in question for the purpose of diagnosis and treatment. Thereafter, the physician aroused accused by squeezing his ankle and slapping his face. He was then able to converse with accused and the latter answered his questions. He proceeded to examine accused and concluded he was under the influence of a narcotic drug. Thereupon the doctor contacted criminal investigation authorities. Thereafter, and in the presence of a Criminal Investigations Detachment agent, accused voided a urine *757•specimen for the doctor. Although no warning was given to accused before he was asked if he would provide a sample, the evidence of record shows that he agreed to do so. Prior to that time he was ambulatory, and, in response to a request that he disrobe in order that his clothing might be examined, consented, stating that he had nothing to hide. Also, according to the doctor:
“He appeared at this time to be rational to me and he had been talking to me and giving me part of his life history and answered other questions as I had asked him, and appeared to be alert, cooperative and in •possession of his faculties.
“Q And were his answers responsive to the questions you asked him?
“A Yes they were. He was oriented in time and place.”
As the base opinion points out, appellate counsel have directed considerable •attention to whether a suspect must be warned in accordance with Article '31, Uniform Code of Military Justice, 10 USC § 831, before being asked to provide a urine specimen. Nevertheless, that quéstion remains unresolved, for the majority hold accused’s “semiconscious” state as a matter of law prevented his understanding of the request and hence precluded his voluntary 'consent. That conclusion flies in the face of the evidence of record. From the facts previously recounted, together with others such as drinking several glasses of water to aid his bodily functions and complying with a number of requests, it is obvious there was credible evidence from which the law officer could determine that the accused was •sufficiently in possession of his faculties fully to know and understand all that transpired and intelligently to consent to the doctor’s request for a urine sample. And it is axiomatic that we are here concerned merely with the interlocutory question of the admissibility of the evidence. In that connection it is interesting to note that the law officer did not submit the . question of admissibility to the court members, and my brothers do not contend be should have done so. Thus, it is only in the absence of an evidentiary basis to support the'law officer’s ruling that we may properly upset it, and since it is crystal clear we are not faced with that situation, I conclude he did not abuse his discretion. Moreover, the holding of the Court is entirely contrary to the theory of the defense. The thrust of their argument is that the accused was not warned of his rights under Article 31 of the Code. That contention presupposes he was in possession of his faculties and had he been warned he would have understood his rights and not volunteered the sample. The argument that accused was unable to understand the doctor’s request is not urged by the defense and is raised for the first time at this level.
Because of the conclusion I reach on the first issue, it is necessary to explore its other ramifications. The concepts I would prefer to employ in this area have been discarded in large part by my associates. Accordingly, believing the law fixed by the views of the majority, I concurred with their result in United States v Forslund, 10 USCMA 8, 27 CMR 82. Here, however, unlike that case and also unlike United States v Jordan, 7 USCMA 452, 22 CMR 242, we do not have an order to provide a specimen. Neither are we concerned with the problem that confronted us in the catheter cases, nor with any form of compulsion, coercion, or unlawful influence or inducement. Consequently, Article 31(a) of the Code, supra, is not involved. Rather, the question is, as counsel argue, whether the absence of a warning renders the evidence inadmissible. The short answer to that inquiry may be found in the Chief Judge’s concurring opinion in United States v Booker, 4 USCMA 335, 15 CMR 335, which is cited by the majority in support of their position in the case at bar. There, at page 338, he stated:
“For reasons set out in my dissenting opinion in Williamson, 4 USCMA 320, 15 CMR 320, I do not agree with the majority in its sanction of the use of a catheter without the accused’s consent. However, in this case, the accused voluntarily cooperated with the authorities. Under the circumstances, he has no cause to complain. *758Article 31 of the Code does not apply because the urine specimen was obtained with his consent, and since there was no interrogation of any kind, there was no need to warn the accused that any statement made could be used against him in a trial by court-martial.”
Obviously, a warning that an accused need not furnish a sample would provide strong support for a finding of consent, but, as in the case of a lawful search, no such warning is required. See United States v Insani, 10 USCMA 519, 28 CMR 85; United States v Cuthbert, 11 USCMA 272, 29 CMR 88.
For the above-stated reasons, I would hold the urinalysis evidence was properly admitted. That leaves for resolution the issue relative to the incriminating blood samples, and despite the fact that the question may arise again in the event of a rehearing, the Court furnishes no answer. For my own part, I believe it is clear beyond cavil that the result of that chemical analysis was also properly allowed in evidence. True it is that accused was unconscious at the time the blood was extracted from his vein, but the method used was a routine procedure commonplace in everyday life and in conformance with proper medical standards. There is nothing about such a blood test that is offensive even by the most delicate standard, nor does it shock the conscience or sense of justice. Breithaupt v Abram, 352 US 432, 1 L ed 2d 448, 77 S Ct 408 (1957); cf. Rochin v California, 342 US 165, 96 L ed 183, 72 S Ct 205 (1952). Thus, it cannot be maintained there was any undue or improper invasion of accused’s, person or rights. Moreover, in this instance the sample was drawn from him purely for the purpose of diagnosis and treatment of a man obviously in need of medical examination and care. Under those circumstances, it is clear that extracting blood from accused while he-was unconscious cannot be said to have-compelled him to incriminate himself in violation of Article 31 of the Code, supra. United States v Baker, 11 USCMA 313, 29 CMR 129.
Finally, if there was no violation of Article 31 in obtaining the urine sample — and my brothers do not find any— and in the absence of any holding of error on the blood tests, I wonder what, consideration has been given to the compelling evidence rule. See United. States v Ledlow, 11 USCMA 659, 29 CMR 475. Certainly on this record that, principle should be dispositive.
For the above-stated reasons, I would affirm the decision of the board of review.