The potential for error in chemical testing of BAC levels for purposes of a DUI investigation is well documented. Imagine agreeing to a chemical test in the course of a DUI investigation because you KNOW you have had only one standard drink in the last two hours, only to find yourself blowing well above the legal limit. Clearly the test results were in error, and yet in a court of law those numbers will be near impossible to disprove.
A little known area of Florida law, Statute Section 316.1932(1)(f)(3) gives drivers some measure of protection against these sorts of situations. The law states:
The person tested may, at his or her own expense, have 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 of his or her own choosing administer an independent test in addition to the test administered at the direction of the law enforcement officer for the purpose of determining the amount of alcohol in the person’s blood or breath or the presence of chemical substances or controlled substances at the time alleged, as shown by chemical analysis of his or her blood or urine, or by chemical or physical test of his or her breath. The 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.
In essence, if you believe the results of the chemical test administered by law enforcement are erroneous, you are entitled to have an independent test performed by a physician or licensed medical professional of your choice, at your own expense. Police officers may not impede your access to obtaining this test, and must provide you with telephone access to secure the test in a timely fashion.
If you demand such a test but are unable to obtain one, this may still provide strong evidence to your innocence – such a demand is in line with the actions of an innocent person, and juries are likely to interpret this information as such.
Unfortunately, suspects are not entitled to an independent test if they refused law enforcement’s request for an initial chemical test. They must first submit to law enforcement’s test before the right to an independent test arises.
The right to a second opinion can be very beneficial in instances where you believe law enforcement’s chemical test results to be wrong. While the test must be conducted at your own expense, it may absolve you of a DUI conviction. Even if you are unable to secure an independent test, the fact that you requested one contributes to your defense in the long run.
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