It is a very infrequent that I have clients that request and actually follow through with a request for an independent test after being arrested for DUI. Generally, the supposed costs of the independent test are sufficient to deter most people from following through with the test. Often times, officers improperly overstate the costs of the independent tests, but I will leave that discussion for another day. One of the most bothersome issues that I see with regard to independent tests is that the tests are generally performed at a hospital, and generally hospitals performs alcohol tests on serum or plasma. These tests overstate the concentration of alcohol because serum and plasma have a higher concentration of water than “whole blood.” Further, these “independent tests” usually state in bold print below the results: FOR MEDICAL PURPOSES ONLY.
“O.C.G.A. § 40-6-392(a)(3) gives one accused of driving under the influence the right to ‘have a…qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.' (Emphasis supplied.) ‘There can be no question that by judicial interpretation of [O.C.G.A. § 40-6-392] the results of an intoximeter (breath) test which is taken in violation of the protections afforded by [that section] may not be used in evidence against the defendant.'”
The statutory scheme which requires that a DUI suspect be provided with the opportunity to obtain an independent test is intended to “safeguard the Defendant's equal protection and due process rights to gather exculpatory evidence, i.e., an independent test.” “The legislative purpose behind the implied consent law is to allow a DUI suspect to obtain an independent test after taking the test requested by the state.”
In Schlanger v. State, the Court of Appeals expounded upon the purpose of providing of a suspect with the right to independent test pursuant to O.C.G.A. § 40-6-392(a)(3):
This procedure helps dissipate any feelings the DUI suspect may have of collusion, fraud, or inaccuracy in the [s]tate-administered testing. It also enables the suspect to obtain independent evidence to refute a possible erroneous [s]tate test result.
How can a test that is “for medical purposes only” be sufficient to overcome the state's forensic breath test? How does such a test “dissipate any feelings the DUI suspect may have of collusion, fraud, or inaccuracy”? How is this an “independent test”?
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