Right to an Independent Chemical Test After a DUI Arrest in Florida

Imagine that you have a glass of wine with dinner. On the drive home you are pulled over for speeding.

The officer asks you if you have been drinking and doesn’t believe you when you say, “I only had one glass of wine.” You agree to submit to field sobriety exercises.

You perform the exercises well considering that you are standing on the side of a highway. There is no doubt in your mind that you are not impaired and that it is perfectly safe for you to drive home. You are shocked when the officer nevertheless puts you in handcuffs and escorts you to the back of his patrol vehicle.

The officers asks you, “Will you submit to a breath test?” You immediately agree and ask the officer to just test you at the scene so you can be immediately released.

The officers tells you it doesn’t work that way. You are under arrest for DUI and you will be taken to jail. If you blow under the legal limit the officer tells you he will then request a urine test to check for any controlled substances in your system. Either way, the officer tells you that you will spend at least 8 hours in the jail before you can bond out.

Still in shock, you agree to take the breath test because you know that you will blow well below the legal limit. When you get to the jail and submit to the breath test, the officers gets a big grin on his face as he tells you that you blew a .159 and .162. The officer tells you that you are well-over the legal limit and will be charged with an “enhanced” version of DUI.

You know the breath test machine is not working. What little you understand about the BAC levels, you know that you should have blown well below the legal limit. Should you request an independent blood test?

Florida’s Right to an Independent Chemical Test After a DUI Arrest

Florida Statute Section 316.1932(1)(f)(3) provides that a person who submits to a chemical test of his blood, breath, or urine may secure an independent blood, breath, or urine test at his own expense.

The law enforcement officer is not allowed to interfere with the person’s right to obtain the independent test.

Just by asking for an independent test of your blood you create a complication that the arresting officer may not be equipped to handle. Often these difficulties lead to the officer making a mistake that might lead to the results of the breath test being suppressed.

If you believe that the breath test reading is higher than you would expect then securing the blood test will be critical to your defense.

Again, if the officer makes a mistake it may lead to the suppression of your breath test results. If your case goes to trial the fact that you demanded an independent blood test but were unable to obtain one might be powerful evidence that you believed you were innocent and that the breathalyzer did not work in your case. Jurors might expect an innocent person to make just such a request.

If I’m under arrest and in the officer’s custody, how will I secure an independent test?

Although the driver has a right to secure an independent test, the law enforcement officer often makes exercising this right extremely difficult. Florida law provides that the officer shall not interfere with the person’s opportunity for an independent test and shall provide the person with timely telephone access to secure the test.

If the officer does not interfere, your ultimate failure or inability to obtain an independent test will probably not affect the admissibility of any test performed by the officer.

Although I haven’t seen any statistics kept by a law enforcement agency, I would assume that the number of people requesting an independent blood test after taking the breath test is relatively low.

Most DUI enforcement officers I know would be pretty annoyed with such a request since it will add at least one additional hour to the case. The officer would also be annoyed with making a trip to a hospital that may or may not be willing to perform the blood test.

Finally, the officer knows that the individual requesting the independent test may or may not change his mind about the request once he gets to the hospital. Not to mention the fact that such an unusual set of circumstances opens the officer up to criticism from his supervisor, the prosecutor, the judge and the defense attorney for the way the officer deals with the request.

Securing an Independent Test after a DUI Arrest in Florida

So what does the officer have to do once the driver submits to the breath test and then requests an independent test? Florida law provides for a pretty low threshold.

The officer must render “reasonable assistance” in helping a defendant obtain an independent blood test upon request. Whether the assistance provided by the officer is “reasonable” depends largely on the circumstances.

The State of Florida is required to take affirmative action to assist a defendant in custody in obtaining an independent blood test when requested. Unruh v. State, 669 So.2d 242 (Fla. 1996).

The courts have held that providing the defendant with a telephone that allows for only collect calls is not timely telephone access. See State v. Miceli, 8 Fla. L. Weekly Supp 393 (Fla. Monroe Cty. Ct, 2001).

On the other hand the request must be specific. The courts have generally held that a defendant is not denied the right to obtain an independent blood test when the officer did not provide the person arrested with uninterrupted telephone access to his father when the defendant never expressly asked for an independent test. Smallridge v. State. 904 So.2d 610 (Fla. 1st DCA 2005).

No Right to an Independent Test if you Refuse to Take the Breath Test

If you have the right to an independent test, why not just refuse the officer’s demand for a breath test and proceed directly to the hospital for a blood test. After all, blood testing is considered the “Gold Standard” and much more accurate and reliable than breath testing.

Such a right to choose the type of chemical testing after a DUI arrest does not exist under Florida law. As more than one judge has put it, “This isn’t Burger King.” No right to an independent test exists when the driver refuses to take the breath test.

If you say, “I will not agree to submit to a breath test, but I am requesting that you take me to the hospital so that I can secure an independent blood test” then the officer is free to charge you with a “refusal.” The officer is also free to ignore your request for an independent test with little concern about any evidence being suppressed.

Benefits of Asking for an Independent Blood Test after a DUI Arrest in Florida

Having said that, I have a certainly see individuals arrested for DUI make such a request on video. Seeing the officer explain that the driver is not entitled to any assistance in securing proof positive of their blood alcohol level makes the prosecutor’s case much more difficult at trial. You would expect an innocent person to demand the most precise, accurate and reliable form of alcohol testing which is undoubtedly the hospital blood test.

Only after the driver submits to the breath test as requested by law enforcement does the right to secure an independent test arise. See DHSMV v. Green, 702 So.2d 584 (Fla. 2d DCA 1997)(Florida law is clear that under Section 316.1932(1)(f), the right to an independent test is limited to circumstances in which the individual has already complied with the arresting officer’s request and then wishes to obtain a second test).

The prosecutor can argue that “This isn’t Burger King” until he or she is blue in the face, but the jury might find the request to be perfectly reasonable and expected from an innocent person falsely accused of driving under the influence.

3 Comments

  1. Posted April 4, 2012 at 13:03 | Permalink | Reply

    I agree completely with this article. I often see that when someone exercises a rarely used right (refusing field sobriety exercises, demanding an independent blood test….) the officer is much more likely to make mistakes because they are caught off guard. Those minor mistakes can have a dramatic impact on your case when you retain an experienced DUI attorney.

  2. Anonymous
    Posted May 21, 2012 at 21:24 | Permalink | Reply

    I believe there is a typo: the proper statute for the independent chemical test is 316 not 313.

Post a Comment

%d bloggers like this: