In many states, if you have been stopped for a DUI you have the right to an independent blood or urine test that can be maintained and later analyzed to compare with the results from your breathalyzer test. Why is this needed? Because according to the U.S. Supreme Court in California v. Trombetta, if you have been administered a breathalyzer test there is no legal right for the officer to save the sample and allow the defense to independently review it at a later date.
Getting a blood or urine test may be a legal right, but officers are often reluctant to notify a driver that they have this right. Why? They do not want to take the extra time that is needed to find a technician to perform the test so the law is routinely ignored by police officers.
If you have been arrested and your legal right was violated, what recourse do you have? It depends on the state. In California, according to the law which states, “no failure or omission to advise pursuant to this section shall affect the admissibility of any evidence of the alcohol content of the blood of the person arrested”, it may be impossible to suppress the breathalyzer test as evidence, even though the mandatory law was ignored by the California police officer.
Some state courts, however, have concluded that the breathalyzer may be suppressed if certain attempts were made by the officer to interfere with the blood tests. In State v. George, the Kansas court decided that the breathalyzer test should be suppressed because the officer did not allow the driver to take a blood test. The officer refused the request because he believed it would take too long to drive the suspect to a hospital and have the procedure completed.
So does a driver have the legal right to request a blood sample? Yes. Does the officer always honor that request? Sometimes and if they do not, you may have very little legal recourse. This is called a right without a remedy, and if it happens to you it is time to find a good DUI lawyer.
DUI lawyers understand the complexity of DUI laws and can help you even if you have been arrested for DUI for the very first time. DUI laws have become more severe and even first time DUI offenders may have their license suspended and have to pay high fines and penalties.
Do not try to handle a DUI charge on your own. Find a DUI attorney who can answer your questions and help you move forward with your life.
Latest posts by Beth (see all)
- California DUI penalties for minors arrested for DUI? - May 6, 2017
- California DUI with minor in the car. What will happen? - April 30, 2017
- Delaware DUI what do I need to know? - April 23, 2017