There has been discussion in the news recently regarding the right a person has to an independent test when they are arrested for DUI. In one article I read, a couple of my lawyer colleagues who were interviewed didn’t get the law of this topic exactly correct. Granted, it is complicated.
But the right to an independent test in a DUI setting is an important right. While legally complicated, it is a right that warrants review.
The Law on Independent Testing
My explanation in this blog post is a result of my analysis of the statutory law that applies and how South Carolina appellate courts have interpreted the changing statutory law over the years.
Statutory & Appellate Law
Statutory law is the law on the books, so to speak. Appellate law is comprised of the decisions of courts of appeal, when, as the result of the filing of a notice of appeal, these courts of review make decisions on legal issues that they are asked to examine. The decisions of these courts are rendered in the form of a decision of the court expressed in a public holding or “decision” in that particular case.
These decisions often resolve disputes among the parties involved in an appeal, as to what the law on the “books” means as applied to the facts of the case that is appealed.
Every person arrested for DUI or Felony DUI in South Carolina has a right to an independent test and must be advised of that right in writing. Unfortunately, many people are not aware of this right and in the emotional context of being arrested and taken to a police station or jail, may not catch the officer’s one-sentence statement of this right.
That short statement is among other advice that the officer must read a person prior to administration of a breath test.
An officer must state to the person arrested, “You have the right to have a qualified person of your own choosing conduct additional independent tests at your expense and the officer, upon request, shall provide you affirmative assistance.”
Independent Testing Basics
What does an “independent test” mean?
Usually this means a blood test for the presence of alcohol or drugs that is conducted not by law enforcement, but by a third party such as a hospital laboratory, the results of which do not have to be disclosed to the prosecution unless the person elects to introduce those results into evidence at trial.
This right stems from the fact that a blood test is more reliable than a breath test. This law affords a person the right to a more reliable test.
A police officer may not ask for a blood (or urine) test from a person unless the person is charged with felony DUI or the officer has reasonable suspicion that the person is under the influence of something other than alcohol.
The costs of such a test falls on the person who asks for an independent test.
Police Officer Assistance With Independent Testing
So, if a person under arrest for DUI asks for an independent or blood test, the question arises as to what responsibility the officer has to make that happen. After all, the officer has that person in his custody until taken to jail.
Even though the required notice about an independent test, (see above), provides that the officer will offer a person “affirmative assistance” no matter whether a person provides a breath sample or elects to refuse to do so, our appellate decisions have held otherwise.
This is very confusing.
The standard has been “assistance,”reasonable opportunity” and “affirmative assistance.”
Years ago, Section 56-5-2950 (South Carolina Implied Consent law), contained only a requirement that an officer offer “assistance” to a person who requests a blood test.
Later, this statute was amended to add a requirement of “affirmative assistance” to obtain an independent blood test. Currently, “affirmative assistance” means “…at a minimum, includes transportation for the person to the nearest medical facility which performs blood tests to determine a person’s alcohol concentration.”
Court Cases: The Responsibility of Police In Independent Testing
While the statutory law does not clearly distinguish when the officer must offer “affirmative assistance,” appellate court decisions have drawn a distinction between what responsibilities an officer has to aid a person in securing an independent test, based upon whether the person provides a breath sample or refuses to do so.
In 1976, in State v. Lewis, the South Carolina Supreme Court decided that the language of Section 56-5-2950 required the officer to give “assistance” to get a blood test, but if the defendant refused to provide a breath sample, the officer need only provide a “reasonable opportunity” for a person to get a blood test. Lewis refused to provide a breath sample. In the Lewis case, the court concluded that Lewis was afforded for an independent blood test when the officer simply allowed Lewis to use the phone to call a physician.
The Court ruled that offering use of a phone constituted provision of a “reasonable opportunity” for a blood test and that the officer did nothing to prevent Lewis from getting a blood test.
After that decision, our appellate courts reviewed this issue in other cases, all of which were “refusal to blow” cases.
In State v. Knighton it was held that the officer offering a phone to the accused constituted extension of a reasonable opportunity to obtain an independent test.
In Columbia v. Erwin, the court held that the defendant was offered a reasonable opportunity for an independent test where the officer took him to a hospital but no blood sample could be obtained.
In State v. Masters, the arresting officer was on the way to the hospital with Masters for a requested independent test, but was ordered by another officer to just go ahead and take Masters straight to jail. The court held that under those circumstances, Masters was not offered a reasonable opportunity for an independant test.
In State v. Smith, Smith requested an independent test and was taken to the hospital where a blood sample was taken but lost by hospital personnel. The court held that since the loss of the sample was not the fault of the officer, Smith was offerred a reasonable opportunity for an independent test.
In State v. Harris, the arresting officer told the defendant that he “ain’t getting no blood test.” Defendant’s appellate counsel argued that Smith should have been offered assistance, but the court ruled he was not entitled to assistance. This is a confusing case that was decided on unusual grounds.
However, in the Harris case, Judge Cureton addressed an interesting argument.
“In our view Harris raises a valid point regarding notice. We see no practical benefit from affording a suspect a reasonable opportunity to obtain an independent test after he refuses to take the breathalyzer test if law enforcement is not required to inform him of and outline to him the parameters of that opportunity.”
In other words, unless clearly told so, how would a person know that he would be offered “affirmative assistance” for a blood test only if provided a breath sample and that if not, he would just be given a “reasonable opportunity?”
No clear cut answer.
My point is that I am looking into this argument and will let you know what I think about making it.
Looking again at State v. Lewis, a standard was applied. What is a “reasonable” (opportunity) depends upon the circumstances of each case.
Judge Cureton’s comment above raises a valid point. When a person is advised “you have the right to have a qualified person of your own choosing conduct additional independent tests at your expense and the officer, upon request, shall provide you affirmative assistance,” and the person is not advised that this applies only if he provides a breath sample, is that person misled? Does this constitute fair and effective notice? Not in my opinion.
Curious about independent testing?
If you have been charged with DUI contact us today to discuss your options and get the support you need. We are happy to meet with you and discuss your case without charge. To get in touch with a lawyer right away, call 843-853-3310 or contact us online.