DUI Independent Chemical Test Rights
What is an independent DUI? Your rights and how to get one.
If you receive a DUI, in most circumstances you have the right to get an independent test to determine your body alcohol content. This test can be used to negate or contradict the State’s test if the result is different.
What is an independent chemical test in a DUI case?
An independent chemical test is, by its nature, independent from police action. That is, law enforcement takes no part in collecting or analyzing the sample. For practical purposes, we will assume that the independent test is of your blood, although technically there is no reason why you couldn’t get an independent breath test were one available.
In most circumstances where the police draw blood after a DUI arrest, they will obtain two tubes (the common configuration of all available blood test kits sold to law enforcement agencies for DWI purposes). The basic idea is that the police laboratory analyzes one tube, while the other tube remains in cold-storage in case you our your DUI defense lawyer request it for reanalysis. Although this sample is available for you to test “independently,” it is not the independent test contemplated by most state’s DUI laws. This is because you didn’t get to choose the method of blood extraction, nor the person who did the phlebotomy.
In very rare circumstances police officers may be able to offer you a “sample capture” from a breath test machine. This essentially means that they bottle up your breath and then make it available for you to have retested. Although this method is all or nearly extinct, it is important to mention that it also does not qualify as an independent test.
An true independent test is one where you chose the method, location, phlebotomist and laboratory to analyze the sample. This way, you can be sure that the sample does not become contaminated either through flawed extraction or flawed handling.
Time is of the essence for DUI independent tests.
Evidence of alcohol impairment, and of blood alcohol level is evanescent. That means that it fades over time. A test even several hours after the police officer’s test may not prove much, especially if your alcohol level was fairly low to begin with. For example, say your breath test 20 minutes after your stop showed a 0.085, which is above the legal limit of 0.080, but not by much. Consider that human being eliminate alcohol at a rate of between .010 and .030 per hour on average, and you can see that, if the state’s test were ballpark accurate, that in a mere three hours you could have no alcohol left in your system at all. So in a case like that, a very low or negative test for alcohol three hours after the state’s test would prove nothing, and would be unlikely to help your defense.
Because timing is critical, it is important to insist that you be released immediately after processing so that you can try to get your own test. If the officers won’t release you, at least make sure that they document that you requested to be released so you could get your own test.
You should have a legitimate and fair opportunity to prove your innocence by having the ability to collect and document evidence of your sobriety while that evidence is still relevant.
What if the police officers refuse to let me get a test?
What the police officers must do depends on the laws of the state you are in. However, as a general rule, most officers will reluctantly follow the law if asked to in regards to an independent test. It may involve you calling a doctor and/or lawyer who will have to come to the jail to help you document your sobriety. It may be as simple as calling you a cab.
Some police officers will try to make you believe that you will be making thing harder on yourself if you insist on your right to get independent evidence of your sobriety. Officers don’t like to be proven wrong, so it is human nature that they may resist your attempts. Some may even subtly or overtly let you know that if you stand on your rights they are going to make you stay overnight in jail, whereas if you cooperate they will release you while they are done.
If you had to wait in a cell for two hours for a cab to come to pick you up, and the officers are the ones who called the cab, you need to ask yourself whether it is possible that the officer intentionally delayed your release in order to thwart your attempt to document your innocence.
What happens if I was denied an independent test?
It depends on what state you were arrested in. In some states it might lead nowhere. In others it could result in the suppression of the state’s chemical test result. Still in others it could result in an outright dismissal of your DUI case. Always check with an experienced local DUI lawyer who practices in the state and county where you were arrested to find out what your rights and remedies are in regards to an independent chemical test.
Other independent evidence.
In addition to an independent blood test, you may also be entitled to have other evidence of your sobriety documented. Some of this you may be able to do yourself. Here are some ideas:
- Have a trained police officer or DUI lawyer administer the field sobriety tests to you. If you do well, the results could counteract the officer’s assertions that you failed the field tests.
- Video or audio tape yourself directly after arrest.
- To prove that you weren’t slurring, call your cell phone and leave a voice message. The date and time of the message can then be authenticated.
- Go to a hospital and have them evaluate you for impairment.