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Denial of Independent Blood Test

Denial of Independent Blood Test

Information courtesy of Lawrence Taylor - DUIblog

When the police administer a breathalyzer, the suspect's breath sample is analyzed -- and then destroyed by purging it into the air. Although it is easy and inexpensive to save the sample so that it could later be independently analyzed by the defense, the U.S. Supreme Court in California v. Trombetta ruled that there is no right to this. (See "Why Do Police Destroy the Evidence in DUI Cases?".)

Recognizing that an accused should have some minimal rights even in a DUI case, many states have enacted laws requiring the police to advise the suspect that he has the right to have an independent blood sample drawn so that it may be later analyzed and compared to the breath test results. California's Vehicle Code Section 23614 is an example:

(a) ....a person who chooses to submit to a breath test shall be advised before or after the test that the breath testing equipment does not retain any sample of the breath and that no breath sample will be available after the test which could be analyzed later...

(b) The person shall also be advised that, because no breath sample is retained, the person will be given an opportunity to provide a blood or urine sample that will be retained at no cost to the person so that there will be something retained that may be subsequently analyzed for the alcohol content of the person's blood. If the person completes a breath test and wishes to provide a blood or urine sample to be retained, the sample shall be collected and retained in the same manner as if the person had chosen a blood or urine test initially. [italics added]

Sounds fair. Except officers don't like handling a suspect's urine or spending an hour or so finding a blood technician to draw a sample. Result: this law is commonly ignored by the police. (Some DUI report forms contain a place for the officer to indicate that he advised the suspect of the right to an independent test, and it is commonly checked off -- and ignored.)

So what can a defendant do if this legal right is violated?

Attorney Kathleen Carey

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