In Arizona, a defendant has the right to seek a private blood draw if the State does not administer a blood test. State v. Olcan, 204 Ariz. 181, 61 P.3d 475 (Ariz. App., 2003).
What does this mean? When a DUI suspect is arrested, and the police don’t administer a test (pursuant to Arizona’s implied consent laws), the police are required to advise the suspect that the suspect has a right to obtain a sample to preserve, test, and prove his DUI innocence.
Generally, the right to independent testing is derived from a defendant’s due process right to gather exculpatory evidence, Van Herreweghe v. Burke, 201 Ariz. 387, 389, ¶ 8, 36 P.3d 65, 67 (App.2001), and is codified at A.R.S. § 28-1388(C), which states in part:
The person tested 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.
The Court of Appeals of Arizona explained the plain meaning of A.R.S. § 28-1388(C) as follows:
A.R.S. § 28-1388(C) expressly allows a person to have a qualified person administer a test ‘in addition to any test’ administered by the State. Thus, it grants a defendant a reasonable opportunity to arrange for a competent person to draw an independent sample of the defendant’s blood and analyze that sample regardless whether the State has collected, analyzed, and preserved a portion of the defendant’s blood. The statute is plain and unambiguous[.]
Olcan, 61 P.3d at 478.
“[Section 28-1388(C)] affords a reasonable opportunity to obtain an additional test. Such a test may be administered only by a ‘physician, registered nurse or other qualified person.’” Olcan, 61 P.3d at 477.
In Olcan, the State argued that, when police officers had already collected a sample of a defendant’s blood, the defendant had no right to an independent blood draw. Instead, the State asserted that the defendant’s right was satisfied by allowing the defendant to arrange for an independent analysis of the State’s sample. The Court of Appeals of Arizona, Division 1, disagreed with the State’s argument and refused to grant the State any relief. 61 P.3d at 477.
Additionally, it is a due process violation to prohibit a driver who refuses to take a breathalyzer test from obtaining an independent blood test. Smith v. Cada, 114 Ariz. 510, 562 P.2d 390 (App. Div. 1, 1977).
Implied Consent and Independent Test Advisory
Unfortunately, the Court of Appeals of Arizona has consistently held that police are not obliged to inform DUI suspects of their right to independent testing. See, e.g., State v. Ramos, 155 Ariz. 153, 745 P.2d 601 (App. 1987), 155 Ariz. 153, 745 P.2d 601; State v. White, 155 Ariz. 452, 747 P.2d 613 (App.1987). “The only Arizona case which has ever found a duty to inform is Montano v. Superior Court, 149 Ariz. 385, 719 P.2d 271 (1986).” State v. Superior Court In and For County of Yavapai, 878 P.2d 1381, 1383, 179 Ariz. 343, 345 (Ariz. App. Div. 1, 1994). Montano, however, involved a unique situation where the arresting officers did not have access to a breathalyzer and did not invoke implied consent. Under those circumstances, our supreme court held, the police are obligated to inform the suspect that he has a right to obtain a blood or breath test elsewhere.
In State v. Kemp, the Arizona Supreme Court held:
[L]aw enforcement officers, when obtaining a blood sample pursuant to [A.R.S. § 28-1388(E)], need not advise the suspect of his right to obtain a portion of the same sample for independent testing, at least when the sample taken by law enforcement officers will still be available for testing by the defendant at the time of trial.
168 Ariz. 334, 336-37, 813 P.2d 315, 317-18 (1991).
The court noted, however, that if a defendant affirmatively requests a separate blood sample for independent testing, law enforcement officials may not interfere with his efforts to obtain such a sample. Id. at 337 n. 4, 813 P.2d at 318 n. 4 (citing Amos v. Bowen, 143 Ariz. 324, 327-28, 693 P.2d 979, 982-83 (App.1984)). The court thereby clarified that a “portion of the same sample” is what the defendant receives from the State, whereas a “separate blood sample” is what the defendant receives from an independent blood draw. “Kemp therefore suggests that due process guarantees a defendant a reasonable opportunity to obtain an independent blood draw even when the State has collected a blood sample and preserved a portion for inspection.” Olcan, 61 P.3d at 478.
In a memorandum opinion, the Court of Appeals of Arizona stated:
[Defendant] argues that the State unreasonably interfered with his right to obtain an independent blood sample because he was not explicitly informed by the police of his right to have an independent sample drawn. We note that A.R.S. § 28-1388 only mandates that suspects be given a ‘reasonable opportunity to arrange’ for an independent sample and does not require that the State inform a suspect of that right.
The court went on to state:
Olcan does not require that a suspect be advised of their right to arrange for an independent blood test, but only mandates that law enforcement not interfere with the suspect’s efforts to obtain one. Id. at 184, ¶ 12, 61 P.3d at 478 (citations omitted); see also State v. Kemp, 168 Ariz. 334, 336-37, 813 P.2d 315, 317-18 (1991) (holding that the due process standard is different for breath tests and blood tests, and “law enforcement officers… need not advise the suspect of his right to obtain a portion of the same sample for independent testing, at least when the sample taken by law enforcement officers will still be available for testing by defendant at the time of trial”).
Other cases have confirmed that a defendant need not be informed of his right to obtain an independent sample.
Montano is one of the rare cases finding that a defendant was entitled to be advised of his right to obtain an independent sample. In that case, the defendant was arrested and charged with a felony DUI and taken into custody. The police did not test the defendant’s breath, blood, or urine, and the officers did not inform the defendant of his right to arrange for independent testing. To safeguard a defendant’s due process rights, the court found that “[t]he [S]tate has no obligation . . . to actually gather evidence for a suspect, but in the absence of the implied consent law it must provide suspects a fair chance to gather evidence by informing them of their right to testing.” Montano at 391, 719 P.2d at 277.
With all of the foregoing in mind, it is very important that DUI suspects get a fast-acting attorney who will work hard to preserve evidence and hold the State to their burden at a DUI trial if the State comes up short.