Independent DUI Blood Testing
Although most people do not realize it, any person who submits to a chemical test at the request of law enforcement then has the right to request an independent blood test as explained by Florida Statute Section 316.1932(1)(f)(3).
The request for an independent blood test is relatively rare because Florida’s implied consent law does not require the police to notify the defendant of the right to the independent test.
Florida law provides that the person subjected to testing after a DUI arrest may, at his or her own expense, have a physician, or any other qualified person of his or her own choosing, conduct an independent test in addition to a test administered at the direction of the arresting officer, for the purpose of determining the amount of alcohol in his or her blood.
The officer is not allowed to 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.
If the driver makes such a request and the officer interferes with the independent test, then the officer’s test results may be suppressed.
Attorney on the Independent DUI Blood Test in Florida
If you took the breath or blood test requested by the officer who arrested you for DUI, you were entitled to an independent DUI blood test. If you asked for one and the officers failed to accommodate that request, then the results of the officer’s requested breath, blood or urine test might be suppressed.
Contact our DUI defense attorneys for blood testing in Florida to learn more. We fight a variety of DUI blood cases including a blood test taken at the officer’s request, the medical blood test taken at a hospital or medical facility, or an independent blood test after a DUI arrest.
Call (813) 250-0500 today.
Requirements of Florida Statute Section 316.1932(1)(f)(3)
Under Florida Statute Section 316.1932(1)(f)(3), a person is entitled to obtain an independent DUI blood test by a qualified person of their choosing under the following conditions:
- first, the person must pay for the independent test at their own expense;
- second, the independent blood test must be administered by a qualified person, including a physician, registered nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician perform the test;
- third, the right to an independent test only applies if the person has submitted to the test requested 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 statute also provides that 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, but only if the officer did not interfere with the person’s opportunity to obtain the independent test.
Additionally, the officer must help the person obtain the independent test by providing the person with timely telephone access to secure the test.
Although the burden is on the person to arrange and secure the test at the person’s own expense, the courts have found that law enforcement had an affirmative duty to transport the arrestee to a blood testing facility upon request.
Where an arrestee’s right to an independent blood test effectively has been denied by law enforcement’s failure to render reasonable assistance, suppression of any breath or urine test is a proper sanction under Florida Rule of Criminal Procedure 3.220(n).
Florida Case Law on the Independent DUI Blood Test
Section 316.1932(1)(f)3, provides that a person tested may, at his/her own expense, secure an independent blood, breath or urine test. The officer shall not interfere with the person’s opportunity and shall provide the person with timely telephone access to secure the test.
The failure or inability to obtain an independent test will not always affect the admissibility of any test performed by the officer. No right to an independent test exists when a defendant refuses to take the breath test.
The statutory availability of an independent blood test does not confer a right upon the defendant after a refusal to take the test requested by the arresting officer. DHSMV v. Green, 702 So.2d 584 (Fla. 2d DCA 1997); DHSMV v. Cherry, 91 So.3d 849, 855 (Fla. 5th DCA 2011).
The courts have found that the right to an independent blood test referenced in Unruh v. State, 669 So.2d 242 (Fla. 1996) and §316.1932(1)(f) are limited to circumstances in which the driver complies with the arresting officer’s request and then wishes to obtain a second test.
The officer must render reasonable assistance in helping a defendant obtain an independent blood test after the request is made. Whether the assistance provided by the officer is “reasonable” depends on the circumstances.
The prosecutor for the State Attorney’s Office is required to take affirmative action to assist a defendant in custody in obtaining an independent blood test when requested. Unruh v. State, 669 So. 2d 242 (Fla. 1996).
The courts have found that merely providing the defendant with a telephone that only allows collect calls is not timely telephone access. State v. Miceli, 8 Fla. L. Weekly Supp 393 (Fla. Monroe Cty. Ct. 2001).
On the other hand, the defendant was not denied the right to obtain an independent blood test where the officer did not provide the defendant uninterrupted telephone access with his father when the Defendant never actually requested nor expressed any interest in obtaining an independent test. Smallridge v. State, 904 So.2d 610 (Fla. 1st DCA 2005).
FHP Standard Operating Procedures for the Independent Blood Test
The standard operating procedures for independent blood tests with the Florida Highway Patrol are found at POLICY 17.06 – 13B.1.c-d:
c. A DUI suspect does not have the right to refuse to submit to a required chemical/physical test by demanding an independent test first. The member is required to assist the DUI suspect in obtaining an independent test as stated below (d), but ONLY after the suspect has complied with the test requested by the member.
d. Pursuant to Section 316.1932, Florida Statutes, the member shall not interfere with the suspect’s opportunity to obtain the independent test and shall provide the suspect with timely telephone access to secure the test, but the burden is on the suspect to arrange and secure the test at his/her own expense. The member is not obligated to provide transportation for the DUI suspect to obtain the independent test. If the suspect has been turned over to the sheriff’s office or corrections, it will be their responsibility to provide the suspect the assistance required by law to obtain an independent test.
The member is not obligated to provide transportation for the DUI suspect to obtain the independent test. If the suspect has been turned over to the sheriff’s office or corrections, it will be their responsibility to provide the suspect the assistance required by law to obtain an independent test.
Officers following these standard operating procedures risk having the chemical test they initially secure suppressed unless they work hard to help the suspect secure the independent test.
For this reason, it is to the driver’s advantage to request an independent test. Additionally, the blood test can be more accurate and reliable. For this reason, the blood test reading might show problems with the breath test reading.
What If a Suspect Requests Testing?
After a DUI arrest, a suspect can request a chemical or physical breath test if the officer does not. If a suspect does request such an independent test, the arresting officer “shall have the test performed” as required by Section 316.1932(1)(d), Florida Statute.
This article was last updated on Friday, January 7, 2022.
