Refusal to Provide Sample and Arrested Anyway, Do You Still Have the Right to a Test at Another Facility?
Ted Morgan Law
If a Georgia driver refuses to provide the police officer with its State-administered test of blood, breath or urine, and the driver is arrested for DUI nonetheless, does the DUI driver nonetheless have a right to an independent test of his blood, breath or urine at a facility of his own choosing? A DUI defendant does not have the right to refuse a police-administered test and then afterward demand a right to an independent test of his or her own choosing. See, Lufburrow v. State, 206 Ga. App. 250 (1992). Subsequent Georgia cases extend this rule to the DUI driver who submits to two (2) breath test attempts, but offers a blood test, after the breath Intoxilyzer 5000 fails to report a proper result. It is important to understand the distinction here. The officer’s unjustified failure or refusal to allow a DUI defendant to exercise his right to an independent test will render the State-administered test inadmissible at the trial. This includes the officer’s refusal to transport the defendant to a hospital of his own choosing for a blood test even where the State did not take blood, and even when a blood test is obtained at another hospital. See, Joel v. State, 245 Ga. App. 750 (2000). Factual disputes over whether the driver actually requested an independent test are common and oftentimes resolved by reviewing the video of the “stop and arrest” (most if not all DUI traffic stops in the State of Georgia are videotaped).