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DWI/DUI: Chemical Tests- you are not in the driver’s seat re choice of test

In California, the first jurisdiction I practiced as a lawyer, if you were stopped for a DWI/DUI, you were given the option of which type of chemical test: blood, breath or urine, you wanted. As long as you selected one and completed the test, no refusal was alleged. The benefit of blood or urine was that some of the sample was tested by the police agency but the remaining amount, a “split” was available for defense testing. With a breath test, there is no independent test possible. Consequently, if you selected the breath test but wanted a split available for defense testing, you could always select an additional test. I have always believed that the inherent conflict between the role of the police as an “investigatory” agency who also tries to aid in your conviction, mandated that any observations or recordation of what allegedly transpired was suspect and independent verification was necessary. When I began to practice in North Carolina, I was shocked to discover that my skepticism of the objectivity of police was not a concern. Independent verification by the defense was not an issue.
The law in North Carolina provides for the driver to have a witness but only as to a mutually agreed upon chemical test. The officer decides which test and how many tests will occur. The police officer decides whether a “blood or other bodily fluid” will be tested; the choice is not yours. If the officer selects a breath test and you want an independent verification, you have to go as soon as possible to a private laboratory or medical facility for your own blood draw.
If the officer offers a breath test and you comply, the officer may then order a blood test and if you refuse to submit, the officer can: (1) get a warrant and force the blood test, (2) deny you a witness to this second test and (3) you have “refused” within the meaning of the statute and will suffer a more onerous driving privilege suspension… even though you submitted to the initial test.
If you are stopped and you do not believe that a breath test results accurately measure your blood alcohol concentration, get a second test. Ask the officer for the second test and if refused, get your own done. Also, even if you do not want a blood test, if the officer requires one after a breath test, comply- unless you want to suffer the driving privilege ramifications of a refusal.
[Whether you are best served in the trial by refusing is a topic for another Blog.]