State Cannot Use Breathalyzer Test Results Against Defendant in DUI Case Where Independent Blood Test Was Requested

In Florida, when a police officer makes a traffic stop and claims he/she observes evidence of impairment from alcohol, that officer will initiate a DUI investigation. This usually starts with questions about where the driver has been, how much the driver has had to drink and other questions about the driver and his/her activities. The driver, of course, is free to request a lawyer and refuse to answer those questions. Next, the police officer will request that the driver submit to field sobriety tests. Again, the driver is free to refuse to submit to those tests. The driver should probably refuse to submit to those tests if he/she has any health/physical issues and/or the police officer does not have a video camera in his/her vehicle that accurately, objectively and completely records the driver’s performance of those tests. Sometimes, even when there is a video camera, it is difficult to observe exactly how the driver performs on some or all of the field sobriety tests. In that case, the driver is at the mercy of the police officer’s subjective opinions as to his/her success. This can be due to the placement of the car in relation to the test location, the lighting and the obscure nature of the tests themselves.

After a DUI arrest, the police officer will ask the driver to submit to a breathalyzer test which tests the driver’s blood alcohol level. The driver can refuse this test, but it is important to note that when a person in Florida agrees to accept a driver’s license, he/she impliedly consents to submit to a breathalyzer test after a valid DUI arrest. If the driver decides to refuse the breathalyzer test, that driver is subjected to a longer driver’s license suspension and could have the refusal used against him/her if the DUI case goes to trial.

However, some people do not necessarily trust the government with their lives and well-being. They might agree to submit to a breathalyzer test, but request an independent blood test that is not provided by the police. In this situation, the driver should politely and clearly request an independent blood test. Under Florida law, a person arrested for DUI whose breath is tested has a right to request an independent blood test. Of course, most people do not drive around with a lab technician who is prepared to test blood for alcohol. Likewise, the police are not likely to let the suspect who is under arrest leave to get a blood alcohol test and return later.

Therefore, the Florida courts have held that if a person whose breath has been tested requests an independent blood test, the police have to take reasonable steps to allow that independent test to occur. This would include a phone call and transportation to a place that could conduct such a test. If the police refuse the request for an independent blood test or do not take reasonable steps to assist the suspect in obtaining the independent blood alcohol test, the state’s breath alcohol tests would likely be thrown out and unavailable to be used as evidence against the driver in court.

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