After twenty-five years as an Arizona DUI defense attorney, I can safely say that my DUI clients have a universal distrust of police breath machines and governmental sample tests. What I cannot figure out is why this massive skepticism has not lead to more independent blood tests.
The constitutions of both the United States and the State of Arizona give every criminal defendant the right to obtain his or her own exculpatory evidence (evidence which proves the defendant did not commit the crime). When a DUI arrest has occurred, Arizona has codified that right at Arizona Revised Statutes § 28-1388(C), which mandates that any person who is required to submit a breath, blood or urine test by the police for driving under the influence of either alcohol or drugs “shall be given a reasonable opportunity to arrange for any physician, registered nurse or other qualified person of the person’s own choosing to administer a test or tests in addition to any administered at the direction of a law enforcement officer.”
Because alcohol (and some drugs) can dissipate out of our bloodstreams within a few hours, it is imperative that an independent blood draw occur as soon as possible after the testing conducted by the police. That means that the police must immediately transport all DUI suspects to a hospital or an independent lab once governmental testing is complete. Many DUI suspects are simply given a citation and released once the DUI investigation has been finished. These suspects are then free to obtain an independent test without any government involvement, and they should immediately do so.
What if a suspected DUI driver has been booked into a city or county jail? In those cases, he or she may not be released for several hours – or even days. The constitutional right to obtain exculpatory evidence and the mandate of section 28-1388 (C) both still apply even when the driver was not released See State v. Olcan, 204 Ariz. 181, 182, 61 P.3d 475, 476 (App. 2003). In that case, Peter Olcan was arrested by the Mesa Police Department for DUI and booked into the city jail. Mr. Olcan made repeated requests for an independent blood draw to occur inside the jail but his requests were all ignored. Mr. Olcan’s DUI charges were dismissed because his right to obtain exculpatory evidence had been denied. The State of Arizona, however, fought the dismissal, arguing that making its own blood draw available for independent analysis was sufficient.
In upholding the dismissal of Mr. Olcan’s DUI charges, the Arizona Court of Appeals noted that the plain language of section28-1388 (C) gives a DUI defendant the right to a test “in addition” to any testing done by the police. More importantly, due process itself mandates an independent test be made available because the police vials could be tainted, or the blood draw could have been performed incorrectly. 204 Ariz. at 184, 182, 61 P.3d at 478.
Since the Olcandecision was published, most police departments throughout the state have been requiring all DUI drivers to sign a written notice that sets out the right to an independent test. Yet in spite of that written reminder by the police, independent blood tests are still occurring far too infrequently.
Modern science and common sense teach us that no machine is perfect. All man-made devices (including the government’s breath machines and labs) have quirks and margins of error. As a result, an independent blood draw is one of the best things you can do to protect yourself from an improper DUI conviction.
If you or a loved one is ever arrested for DUI, please immediately arrange for an independent blood test as soon as you are released from police custody. If you are booked into a city or county jail, repeatedly demand an independent test and call our office immediately to speak with an experienced DUI defense attorney, so we can assist you in obtaining that test. We are available 24 hours a day, 7 days a week at (480) 833-2341.