Most DUI cases involve a request by the arresting officer for a breath test. After you blow into the machine, the breath sample disappears out the other end of the machine. The machine does not capture the breath sample so that it can later be retested by an independent agency.
With all the problems with the breathalyzer used in Florida (called the “Intoxilyzer 8000”) some people would prefer an independent blood test after a DUI arrest. Although law enforcement officers certainly don’t advertise that option, Florida law does provide the defendant with a right to an independent blood test if the defendant has submitted to the test requested by the arresting officer. As a practical matter, few people request an independent blood test.
A quick internet search shows at last one 24 hour lab in the Tampa Bay area that provides an “anytime” blood tests to determine the subject’s blood alcohol concentration or the presence of controlled substances. So getting an independent blood test has probably never been easier.
“Reasonable Assistance” in Obtaining the Independent Blood Test
In Unruh v. State, 669 So. 2d 242 (Fla. 1996), the Florida Supreme Court held that when a defendant requests an independent blood test, the officer “must render reasonable assistance in helping” the individual get the test.
The Court also held that when an officer fails to meet this duty, suppression of the results of the chemical or physical test secured by the officer is the appropriate remedy under pursuant to Fla. R. Crim. P. 3.220(n).
The Unruh Court did not establish any bright line rule to explain what “reasonable assistance” was required, although the statute was subsequently amended by the Florida legislature to address that issue.
Florida Statute Section 316.1932(1)(f)(3) provides that a person who has already submitted to the test requested by the arresting officer may choose an authorized person to administer an independent test. The person requesting the independent test must pay for it at his or her own expense.
Under the statute, a person authorized to draw blood would include a physician, registered nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, or other person.
F.S. 316.1932(1)(f)(3) also provides:
“[t]he failure or inability to obtain an independent test by a person does not preclude the admissibility in evidence of the test taken at the direction of the law enforcement officer. The law enforcement officer shall not interfere with the person’s opportunity to obtain the independent test and shall provide the person with timely telephone access to secure the test, but the burden is on the person to arrange and secure the test at the person’s own expense.”
Advantages of Requesting an Independent Blood Test under F.S. 316.1932(1)(f)(3)
The advantages of requesting an independent blood test might include:
- if you submitted to a breath test as requested by the arresting officer, the results of the independent blood test may show that the breath test results are wrong;
- if the officer interferes with your ability to obtain the independent test then the judge may throw out the reading from the test the arresting officer requested; or
- simply making the request for an independent test shows the defendant was “conscience of innocence” and wanted to preserve evidence to prove it.
Florida Statute Section 316.1932(1)(f)(3) – Visit the website of the Florida Senate to find the statutory language in Florida State Section 316.1932(1)(f)(3)(2011) concerning tests for alcohol, controlled substances and the right to independent blood test under Title XXIII Motor Vehicles, Chapter 316 of the State Uniform Traffic Control Chapter, Section 1932.
Finding a DUI Attorney in Pinellas County, FL
The attorneys at the Morris Law Firm pay attention to defenses that matter in DUI cases. We represent clients in DUI cases throughout Pinellas County, including North County Traffic Court in Clearwater and South County Traffic Court in St. Petersburg. We also represent clients in DUI cases throughout the surrounding areas including Pasco County, Hillsborough County and Manatee County, FL.
If your DUI case involves a request for an independent DUI blood test performed under Florida Statute Section 316.1932(1)(f)(3), then call us to discuss the case today.