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?
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Well,
the statute clearly says "shall" advise and collect: it
is mandatory, not optional. It would seem to follow that there would
be some legal sanction for a willful refusal to follow this law
-- the only meaningful one being suppression of the breath test.
Wrong.
Remember: This is a DUI case we're dealing with. If you look closely,
another little provision at the end of California's statute adds
the following:
(d)
No failure or omission to advise pursuant to this section shall
affect the admissibility of any evidence of the alcohol content
of the blood of the person arrested.
Cute,
no? The law gives you a "right", and then makes it unenforceable.
It is, as we lawyers say, "a right without a remedy".
And, of course, since there are no consequences for ignoring this
advisement of the right to an independent test, most officers continue
to ignore the law.
Practically
speaking, then, officers do not have to follow the law and advise
the suspect of his right to an independent test. There are some
court decisions, however, which seem to say that interfering with
attempts by the arrested person to have blood drawn may be grounds
for suppression of the breath test. See, e.g., In re Martin, 58
Cal.2d 509. And many states will suppress breath test results if
the police refuse to permit the suspect to obtain a blood sample.
In State v. George, 754 P.2d 460, for example, the Kansas court
ruled that breath results should have been suppressed where the
arresting officer refused a suspect's request for an independent
test because of the time required to transport him to a hospital
and find a physician.
Law Offices of Lawrence Taylor, Inc.
Practice limited to DUI defense
Los Angeles, California
http://www.DUIcentral.com/
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