Effectively arguing a violation of the right to an independent test
O.C.G.A. 40-6-392(a)(3) states:
The person tested may have a physician or a qualified technician, chemist, registered nurse, or other 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. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer[.]
Failure of a law enforcement officer to provide an independent test may result in the exclusion of the test result previously submitted to at his/her request. Think about that for just a moment. This statutory provision is tremendously import and powerful. This is not a constitutional provision. In fact, our state supreme court has repeatedly held that a defendant in a DUI or other case does not have a constitutional right to an independent test of the state’s evidence.
In a lot of cases in which a person requests an independent test, the officer does accommodate the request. However, it is frequently the case that the facility the defendant requests for an independent test is limited by the officer. In these cases, be sure to ask your client whether the officer imposed any restrictions on the facility that could be chosen.
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