The constitutional right of an accused against self-incrimination proscribes the use of physical or moral compulsion to extort communications from the accused and not the inclusion of his body in evidence when it may be material. Purely mechanical acts are not included in the prohibition as the accused does not thereby speak his guilt, hence the assistance and guiding hand ofcounsel is not required. (People vs. Olvis, 238 Phil. 513 [1987]) The essence of the right against selfincrimination is testimonial compulsion, that is, the giving of evidence against himself through a testimonial act. (People vs. Casinillo, 213 SCRA 777 [1992]; People vs. Tranca, 235 SCRA 455 [1994]; People vs. Rondero, 378 Phil. 123 [1999]) Hence,it has been held that a woman charged with adultery may be compelled to submit to physical examination to determine her pregnancy; (Villaflor vs. Summers, 41 Phil. 62 [1920]) and an accused may be compelled to submit to physical examination and to have a substance taken from his body for medical determination as to whether he was suffering from gonorrhea which was contracted by his victim;(U.S. vs. Tan Teng, 23 Phil. 145 [1912]) to expel morphine from his mouth; (U.S. vs. Ong Siu Hong, 36 Phil. 735 [1917]) to have the outline of his foot traced todetermine its identity with bloody footprints; (U.S. vs. Salas, 25 Phil. 337 [1913]; U.S. vs. Zara, 42 Phil. 308 [1921]) and to be photographed or measured, or his garments or shoes removed or replaced, or to move his body to enable the foregoing things to be done.(People vs. Otadora, 86 Phil. 244 [1950])28(Emphasis supplied)

In the instant case, we fail to see howa urine sample could be material to the charge of extortion.1âwphi1 The RTC and the CA, therefore, both erred when they held that the extraction of petitioner’s urine for purposes of drug testing was "merely a mechanical act, hence, falling outside the concept of a custodial investigation."

We note a case where a urine sample was considered as admissible. In Gutang v. People,29 the petitioner therein and his companions were arrested in connection with the enforcement of a search warrant in his residence. A PNP-NARCOM team found and confiscated shabu materials and paraphernalias. The petitioner and his companions in that case were also asked to give urine samples, which yielded positive results. Later, the petitioner therein was found guilty of the crime of illegal possession and use of prohibited drugs. Gutang claimed that the latter’s urine sample was inadmissible in evidence, since it was derived in effect from an uncounselled extrajudicial confession.

In the Gutang et al.case, the Court clarified that "what the Constitution prohibits is the use of physical or moral compulsion to extort communication from the accused, but not an inclusion of his body in evidence, when it may be material." The situation in Gutangwas categorized as falling among the exemptions under the freedom from testimonial compulsion since what was sought tobe examined came from the body of the accused. The Court said:

This was a mechanical act the accused was made to undergo which was not meant to unearth undisclosedfacts but to ascertain physical attributes determinable by simple observation. In fact, the record shows that petitioner and his co-accused were not compelled to give samples of their urine but they in fact voluntarily gave the same when they were requested to undergo a drug test.

FIRST DIVISION

G.R. No. 200748               July 23, 2014

JAIME D. DELA CRUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.