Posted by duijim in on March 10, 2015
Most people are not aware that if they submit to the state administered chemical test of their blood, breath, urine, or other bodily substance they have an absolute right to an independent test of their own choosing.
Only a small fraction of driver’s who are arrested for DUI request their own independent test because most drivers do not know they have this right. Anytime a driver is arrested for DUI, and submits to the state chemical test, the driver should ALWAYS demand their own independent test.
In this month’s newsletter we are going to discuss when the right to an independent test attaches, what the officer must do to ensure you receive your independent test, the benefits of independent testing, and which kinds of independent tests you may demand.
I hope everyone has a safe, and happy, holiday weekend. Should you, or a friend, find yourself in a situation where you have submitted to the state’s chemical test after being arrested for DUI be sure to DEMAND your own independent test.
If you have a question regarding DUI, traffic tickets, drug arrests, or any criminal issue feel free to contact us directly at 404-467-1747, or email us at Jim@DUIJim.com
Most people are not aware that if they submit to the state administered chemical test of their blood, breath, urine, or other bodily substance they have an absolute right to an independent test of their own choosing.
Only a small fraction of driver’s who are arrested for DUI request their own independent test because most drivers do not know they have this right. Anytime a driver is arrested for DUI, and submits to the state chemical test, the driver should ALWAYS demand their own independent test.
In this month’s newsletter we are going to discuss when the right to an independent test attaches, what the officer must do to ensure you receive your independent test, the benefits of independent testing, and which kinds of independent tests you may demand.
I hope everyone has a safe, and happy, holiday weekend. Should you, or a friend, find yourself in a situation where you have submitted to the state’s chemical test after being arrested for DUI be sure to DEMAND your own independent test.
If you have a question regarding DUI, traffic tickets, drug arrests, or any criminal issue feel free to contact us directly at 404-467-1747, or email us at Jim@DUIJim.com
The right to an independent test attaches to a driver who has been arrested for DUI once the driver submits to the state administered chemical test of their blood, breath, urine, or other bodily substance. In most cases, the arresting officer is going to request a breath test from the driver.
Once the driver has submitted to the officer’s test the driver then has a right to an independent test of his own choosing. If the driver refuses to submit to the state’s chemical test the right to an independent test does not attach, and the driver does not have the right to an independent test of his own choosing.
Examples:
- The officer requests a breath test from the driver. The driver responds with, “No. I want a blood test.” If the driver does not submit to the officer’s breath test then the driver does not have a right to an independent test.
- The officer requests a blood test from the driver, and the driver states, “No. I want to take a breath test. I don’t like needles.” Unless the driver first submits to the officer’s blood test the driver does not have a right to an independent test.
- The officer requests a breath test from the driver. The driver replies with, “Yes. I will take your test, and I also want my own blood test.” As long as the driver submits to the officer’s request for a breath test the driver has a right to his own independent blood test.
Remember, the state administered breath test is performed at the jail, or in a mobile testing facility. Blowing into the handheld Preliminary Breath Test (PBT) on the side of the road is not the same as submitting to the state’s breath test, and is not enough to trigger the right to an independent chemical test.
A driver may request a blood, breath, urine, or other test as his independent test.
Anytime a driver is arrested for DUI, and submits to the state administered chemical test, that driver should ALWAYS exercise their right to have their own independent test performed.
An Independent Test By Qualified Personnel Of Your Own Choosing At Your Own Cost
Once the driver has submitted to the officer’s chemical test the driver has a right to their own independent test at their own cost by qualified personnel of their own choosing. What does this mean, and what is required of the arresting officer?
Georgia Law dictates that the arresting officer must drive the arrested driver to any testing facility of the driver’s choosing within a 50 mile radius to have the independent test performed. If the officer does not take the driver to that facility the driver’s right to an independent test has been violated.
If the driver is not sure if the facility offers independent testing the officer must provide the driver with a phone book, or an Internet search engine, and a phone so the driver may call facilities until he finds one that will provide the independent test. If the officer does not make this accommodation then the driver’s request for an independent test has been violated.
The officer must also take the driver to an ATM, and allow him to withdraw cash to pay for the independent test. If the officer does not do this then the driver’s right to an independent test has been violated.
If the driver’s right to an independent test is violated then the results of the driver’s state administered chemical test are inadmissible. For example, a driver blows a .24 (3 times the legal limit) on the new Intoxilyzer 9000. The driver demands an independent blood test, and the officer refuses to accommodate the the demand. Due to the officer’s refusal of the independent test the .24 breath test is inadmissible in court.
The Benefits Of Independent Testing
There are two main benefits to demanding an independent test. The first benefit is if the arresting officer does not accommodate the driver’s request for an independent test then the results of the officer’s state administered chemical test are inadmissible in court no matter how high the result.
The other benefit of independent testing is you can have more reliable test results to present in your defense. Georgia breath and blood testing are fraught with inaccuracies, and other technical problems. For example, state administered blood testing involves using the same needle to test 33 different vials of blood.
Each vial of blood does not get it’s own clean needle. Further, there are no independent diagnostics between each blood vial that is tested.
There are simply 3 control vials that are checked before the test, and then 3 that are checked after the test. As long as the control vials do not show an error the blood testing machine assumes there were no errors while it was testing the 33 vials of blood. Finally, in Georgia blood testing the blood itself is not tested.
Instead, the same flawed technology that is used in breath testing is used which means only the air in the vial above the blood is tested. The blood itself is not tested the way it is in a hospital or doctor’s office. To learn more about Georgia’s inaccurate and sloppy blood testing procedures click here. I’m sure you will find them absolutely appalling.
By having your own independent test you can get an actual medical test of your blood. Further, you do not have to request a blood test for your independent test. You may request a breath, urine, or other test as your independent test.
Either way, if you submit to the state’s chemical test after being arrested for DUI you should always exercise your right to your own independent test.
When Does The Right To An Independent Test Attach/What Must The Officer Do?
The right to an independent test attaches to a driver who has been arrested for DUI once the driver submits to the state administered chemical test of their blood, breath, urine, or other bodily substance. In most cases, the arresting officer is going to request a breath test from the driver.
Once the driver has submitted to the officer’s test the driver then has a right to an independent test of his own choosing. If the driver refuses to submit to the state’s chemical test the right to an independent test does not attach, and the driver does not have the right to an independent test of his own choosing.
Examples:
- The officer requests a breath test from the driver. The driver responds with, “No. I want a blood test.” If the driver does not submit to the officer’s breath test then the driver does not have a right to an independent test.
- The officer requests a blood test from the driver, and the driver states, “No. I want to take a breath test. I don’t like needles.” Unless the driver first submits to the officer’s blood test the driver does not have a right to an independent test.
- The officer requests a breath test from the driver. The driver replies with, “Yes. I will take your test, and I also want my own blood test.” As long as the driver submits to the officer’s request for a breath test the driver has a right to his own independent blood test.
Remember, the state administered breath test is performed at the jail, or in a mobile testing facility. Blowing into the handheld Preliminary Breath Test (PBT) on the side of the road is not the same as submitting to the state’s breath test, and is not enough to trigger the right to an independent chemical test.
A driver may request a blood, breath, urine, or other test as his independent test.
Anytime a driver is arrested for DUI, and submits to the state administered chemical test, that driver should ALWAYS exercise their right to have their own independent test performed.
An Independent Test By Qualified Personnel Of Your Own Choosing At Your Own Cost
Once the driver has submitted to the officer’s chemical test the driver has a right to their own independent test at their own cost by qualified personnel of their own choosing. What does this mean, and what is required of the arresting officer?
Georgia Law dictates that the arresting officer must drive the arrested driver to any testing facility of the driver’s choosing within a 50 mile radius to have the independent test performed. If the officer does not take the driver to that facility the driver’s right to an independent test has been violated.
If the driver is not sure if the facility offers independent testing the officer must provide the driver with a phone book, or an Internet search engine, and a phone so the driver may call facilities until he finds one that will provide the independent test. If the officer does not make this accommodation then the driver’s request for an independent test has been violated.
The officer must also take the driver to an ATM, and allow him to withdraw cash to pay for the independent test. If the officer does not do this then the driver’s right to an independent test has been violated.
If the driver’s right to an independent test is violated then the results of the driver’s state administered chemical test are inadmissible. For example, a driver blows a .24 (3 times the legal limit) on the new Intoxilyzer 9000. The driver demands an independent blood test, and the officer refuses to accommodate the the demand. Due to the officer’s refusal of the independent test the .24 breath test is inadmissible in court.
The Benefits Of Independent Testing
There are two main benefits to demanding an independent test. The first benefit is if the arresting officer does not accommodate the driver’s request for an independent test then the results of the officer’s state administered chemical test are inadmissible in court no matter how high the result.
The other benefit of independent testing is you can have more reliable test results to present in your defense. Georgia breath and blood testing are fraught with inaccuracies, and other technical problems. For example, state administered blood testing involves using the same needle to test 33 different vials of blood.
Each vial of blood does not get it’s own clean needle. Further, there are no independent diagnostics between each blood vial that is tested. There are simply 3 control vials that are checked before the test, and then 3 that are checked after the test. As long as the control vials do not show an error the blood testing machine assumes there were no errors while it was testing the 33 vials of blood.
Finally, in Georgia blood testing the blood itself is not tested. Instead, the same flawed technology that is used in breath testing is used which means only the air in the vial above the blood is tested. The blood itself is not tested the way it is in a hospital or doctor’s office. To learn more about Georgia’s inaccurate and sloppy blood testing procedures click here. I’m sure you will find them absolutely appalling.
By having your own independent test you can get an actual medical test of your blood. Further, you do not have to request a blood test for your independent test. You may request a breath, urine, or other test as your independent test.
Either way, if you submit to the state’s chemical test after being arrested for DUI you should always exercise your right to your own independent test.
If you, or someone you know, has been arrested for a DUI, or issued a traffic ticket, please do not hesitate to contact us. My staff of former prosecutors, law enforcement officers, and military members are ready to start helping you immediately. Please feel free to contact us at 404-467-1747, or email Jim@DUIJim.com.