Can I Get My Own Independent DUI Breath or Blood Test?

Every state has an independent test statute that is an integral part of the state’s implied consent statutes.  An independent test statute typically provides that a person who submits to the requested chemical testing of the state may, at the person’s own expense, have additional chemical tests performed.  However, a failure to do so may not affect the admissibility of the blood or breath test performed by the police.

Most independent test statutes provide that only those who submit to chemical testing have the right to an independent test.  The courts have generally upheld this proviso and have upheld the denial of any right to an independent test to those who refuse police testing.

A few states, however, have ruled that restricting the right to an independent test to those who submit to police testing constitutes a denial of due process of law and that persons who refuse chemical testing also have the right to an independent chemical test. Other courts have held that the right to an independent test may not be limited to those who submit to police testing.  In such states, a refusal to be tested may be inadmissible if you were not given the required independent test advisement.

Only a handful of states allow a person who has refused the State’s test to request and receive an independent test.  The majority of other states do not allow this, despite the obvious importance of an arrestee obtaining a contemporaneous sample of this evidence (blood alcohol level) for purposes of challenging the State’s DUI-DWI case against him or her.

In every state, if you get an independent test, you pay for it.  In almost every state, if you request an independent test of your blood or urine, the law enforcement officer must do what he or she can reasonably do to accommodate that request.  A few states require exclusion of your test results if you are not allowed the chance to obtain an independent test.  Most states require that while the officer must give you a reasonable opportunity for a test, the failure to obtain a test does not affect the admissibility of the state’s test.

What happens if you do not have the necessary cash with you to pay for the test and you need to be taken to an ATM?  Several cases from Georgia indicate why the Peach state may have the most driver-friendly case law in America.  In one case, the arresting officer made a unilateral determination that the defendant could not afford an independent blood test based solely on defendant’s assertion that he only had $7.00 with him. The officer never tried to determine whether the defendant had other means to pay and never offered the defendant the opportunity to use the phone.  The trial court held that the officer did not reasonably accommodate defendant’s request for an independent test and this decision was upheld on appeal.

Unfortunately, in other states, this extra step of the officer having to take you to an ATM machine may or may not be considered outside of what is a “reasonable accommodation.”  In the few cases that have addressed this issue, the officer was allowed to decline assistance and the State’s test results were still admissible against the defendant in spite of the lack of the independent test, while in another, when the suspect was short of the cash he needed for the blood test, he requested that the officer stop by an ATM machine to get the funds.  The officer’s refusal to accommodate this request caused the suspect’s refusal to be excluded.