In almost every state, one of your rights is to have an independent test of your own performed at a laboratory of your choice and at your own expense. However, in some states, this right is not one the officer must tell you of before asking you for a sample of your breath, blood or urine. In a few states, failure of the officer to inform you of this right or to you in obtaining this test does not preclude the State from using the evidence it gets from its testing. Other states have a more “pro-citizen” view of the importance of independent test advisements and require that the notice be verbally stated in a manner that communicates all options for an independent test.
Most states have 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 chemical testing may, at the person’s own expense, have additional chemical tests performed, but a failure to do so does not affect the admissibility of the test performed by the police. The specific provisions of independent test statutes vary considerably from state to state. Your DUI-DWI specialist counsel will be intimately familiar with the statute in your state.
In almost every state, if you request an independent test of your blood or urine, the law enforcement officer must do what is reasonable to accommodate that request. A few states throw out the test results obtained by the police if you are not allowed the chance to obtain an independent test, while most say that while the officer must give you a reasonable opportunity, that failure does not affect the admissibility of the State’s test.
Some state statutes mandate that the police officer must assist the defendant in obtaining an independent test. Other statutes state that the police shall not deny the defendant the right to obtain an independent test. Still other statutes are silent on the subject of the police officer’s obligation. In determining the reasonableness of police conduct in failing to assist the defendant in obtaining an independent test, much may depend on the reason given by the police for not assisting the defendant.
Do I Have to Take the State’s Test Before I Can Get an Independent DUI Test?
The independent DUI test statutes in most states provide that only those who submit to chemical testing offered by the police have the right to an independent test. The courts have generally upheld this proviso and have denied the right to an independent test to those who refuse police testing.
A few courts, however, have ruled that restricting the right to an independent test to those who submit to police testing constitutes a denial of due process 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 the defendant was 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. Despite the obvious importance of you being permitted to obtain a contemporaneous sample of this evidence (blood alcohol level) for purposes of challenging the State’s DUI case against you, the appellate courts in a majority of states maintain this legal position.
Especially in states where the right to an independent test is limited to persons who submit to police testing, the denial of the right to an independent test cannot be used as a defense in implied consent proceedings. However, it would seem that the denial by the police of your right to submit to a different form of testing than the type requested by the officer might be raised as a defense by you in an administrative “refusal” proceeding where the state seeks to administratively suspend your driving privileges for refusal of the officer’s test. Consider the situation where an officer insists on blood testing and you (due to a fear of needles) say “I’ll take any type of tests that do not involve needles.”
If an independent test statute does not require the police to notify you of the right to an independent test, it is generally held that the right must be affirmatively asserted by you to be effective and that a police officer has no duty to advise you of the existence of the right. In such jurisdictions, it is essential that an accused “drunken driver” know his or her rights and assert these rights. On the theory that you cannot be held to have waived rights of which you are not aware, a few courts have required police officers to advise you of the right to independent chemical testing even if the statute does not so require. These courts have suppressed the prosecution’s chemical test evidence in the absence of such an advisement.