Independent Blood Testing And Second Samples
The right to an independent blood draw is a statutory right that exists in the majority of states, but not in all jurisidictions. The independent blood draw is a sample taken, upon your request, in addition to the breath, blood, or urine sample collected by the police. In those states that do provide for an independent draw, the police must notify you of your right and make reasonable efforts to accomodate you after your request. What is considered to be a “reasonable” amount of effort varies from state to state. In some juriscitions, it is enough that a phone book is provided to a defendant. In other states, officers must physically take the defendant to a testing facility of his choosing. This is an affirmative duty that must be complied with.
Most states that impose an affirmative duty on the police also impose a duty not to interfere with a suspect’s attempts to obtain an independent test. The remedy for denial of the right to an independent blood test could be anywhere from suppression of the state’s test results to dismissal of the defendant’s case. The more the police interefere with the right to obtain an independent test, the more likely suppression or dismissal is warranted. The rational is that denial of the test is denial of a statutory right of the opportunity to obtain critical evidence – a denial of due process of law.
Some state statutues do not allow a DUI suspect to be released from police custody until at least eight hours after arrest. In these states, it is extremely difficult for offenders to obtain an independent blood test if the police do not help with thier efforts.
If you have been arrested for DUI and a blood sample was taken from you by the police, you may wish to have the state’s blood sample independently analyzed. If your jurisdiction permits, you should speak with your attorney and discuss whether you want to have your blood independently analyzed by a different lab technician. If you chose to have such independent testing performed, you will need to pay a messenger to go pick up your sample and take it to the lab, while carefully preserving the chain of custody.
Finally, it may be wise for you to go and obtain an independent blood test after you have been released. If you were arrested for DUI and believe you were under the legal limit, you should go to the nearest hospital or blood laboratory service as soon as possible after you are released from police custody to get an independent test. Be sure to let your attorney know if you recieved an independent test, or were denied the opportunity to obtain one while in police custody.
If I refuse the chemical tests offered by the police, can I still get an independent test?
Not every state allows an independent test to be conducted if the suspect refuses to submit to the police’s breath, blood, or urine test. In such states, independent testing is allowed for the sole purpose of challenging the validity of the state’s evidence. Thus, if there is no test to challenge, the defendant does not have the right to obtain an independent test.
If you are arrested for DUI and submit to a chemical test of your blood, breath, or urine, it is highly recommended that you also request an independent blood test if you believe you are under the limit. If you requested an independent test and were denied the opportunity to obtain one, be sure to speak with an experienced attorney in your jurisdiction. Depending on what state you are in, the failure to provide you with the chance to take an independent test may result in the dismissal of your case.
For more information on independent blood testing availability in your jurisdiction, contact an experienced attorney in your state.