Defendant's Right to Independent Chemical Test in Drunk Driving Cases

Although a few states have determined that a motorist has a constitutional right to an independent chemical test, that majority of states have provided this right by statute. The right is generally for a motorist to obtain an independent chemical test by a doctor of the motorist's choosing. The most commonly used tests by police officers are the breath tests. However, the privately administered sobriety test given most often is the blood test. Many believe that the blood test will be more favorable to a motorist that a breath test.

However, the right to an independent test is not an absolute right. Although the majority of states have statutes providing that a person who is given a police-administered test must be permitted to have a physician or other qualified person of his or her own choosing administer an additional test, this right is sometimes considered illusory. The reason it is considered to be illusory is because of the impracticality of obtaining such tests in the late evening or early morning when most drunk driving arrests occur. In addition, most statutes provide that a motorist's inability to obtain an additional test will not preclude evidence of the test taken by a police officer.

Whether or not the police have a duty to inform a motorist of the right to such an independent test is a separate question that has sparked a great deal of debate. Generally, it has been held that a police officer is under no duty to advise a motorist of the right to an independent test except where the statute specifically mandates such a duty. While some states require only that the police inform an accused of the right to an independent test, other states require that the police render some degree of assistance.

Some states have statutes specifying that a refusal by police to allow an additional independent test will result in the suppression of the results of the police-administered test. Regardless of whether police are required to inform motorists of a right to an independent test, the police are prohibited from hindering a motorist's attempts to obtain an independent test. Actions by a police officer to hinder a motorist's attempt to obtain an independent test will likely be considered a due process violation.

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