INDEPENDENT TESTING IN DUI CASES.
Right after a person is arrested for DUI, it is very common for the officer to read to the suspect Georgia’s Implied Consent Notice and ask for a sample of the person’s breath or blood. This is called the “State’s Administered Test.” In a nutshell, the officer wants this sample to determine what, if any, intoxicants are in the body of the suspect. Blood tests and breath tests (the machine at the police station, not the small roadside test) can also determine the blood alcohol content (BAC) or the level of drugs in a person’s system. Blood tests are becoming much more common.
Some folks refuse to provide a sample for a number of reasons. However, there can be consequences to a refusal. The main consequence of refusing law enforcement testing is the possibility of a license suspension.
Of course, plenty of drivers submit to the State’s Administered Test. When this happens, the State’s test is usually the only piece of chemical evidence in the case unless the arrestee knows that an additional option exists. This option is a misunderstood right the arrestee has if he or she chooses to take the State’s Administered Test; the right to an independent blood test.
O.C.G.A. 40-6-392(a)(3) provides that “the person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer”. This means that if the accused wants an independent test, he or she must notify the law enforcement officer that he or she wants an additional test. The duty then rests on the law enforcement officer to “reasonable accommodate” this request. “Reasonable accommodation” usually means that the officer will take the arrestee to a medical facility that is in the general area to have blood drawn for the purpose of a second scientific exam of the person’s blood.
It is important to note that while a defendant has this right to an independent test, he or she must still make arrangements for the testing to be done. The arrestee must let the officer know where to go for the testing and be able to pay for it. Law enforcement has no duty to ensure that the testing takes place or to pay for independent testing in DUI cases.
In cases where there is a question regarding who is at fault when an independent test does not take place after it has been requested by the arrestee, the trial court must decide whether under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who sought the independent test. Additionally, DUI defendants do not have the right to refuse the police-administered test and then demand an independent test of their own choosing.
If the court finds that law enforcement unjustifiably failed or refused to allow an accused to exercise his or her right to an independent test by a person of his or her own choosing, then the State’s test will be inadmissible at trial.
Independent chemical testing in DUI cases can help the accused’s attorney in all phases of the criminal case. This is true whether or not the case actually goes to trial. For example, the independent test can give the attorney an objective and complete picture of the strengths and weaknesses of the case and what direction the attorney needs to take in bringing the matter to a final resolution.
There are other benefits to an independent test that are case specific. Regardless of which benefit fits the case, the test is almost always a good idea.
Keep in mind that an arrest for anything is not the same as a conviction. It’s really not even close. Anyone can get arrested. Because of this, knowing what you can and cannot do under such circumstances is important. This is true for the career criminal and the 50-year-old conservative man who is stopped while driving home from dinner and a couple of drinks.
It is also important to the public to know that police officers sacrifice many things in life to serve the public. They keep us safe, respond to emergencies, and appear in court, oftentimes after working the streets all night before court. Because of this, we need to know exactly how our officers keep us safe, what procedures they must follow, and how we can collectively be responsible during police / citizen encounters.
As I have mentioned several times over the years, please do not drink and drive. Sober driving alleviates all of the concerns surrounding DUI law. Even though I am a DUI lawyer, I would gladly give up my practice in exchange for the eradication of deaths and bodily injuries resulting from driving under the influence.
If you have been drinking and need to go somewhere, call a friend or cab. Sounds simple, but it saves lives and avoids countless other problems.
INDEPENDENT TESTING IN DUI CASES.