In Florida, there are two “Arrested for DUI” situations where a driver arrested on suspicion of driving under the influence of alcohol or controlled substance can request an independent blood test to determine its alcoholic content:

  • Pursuant to Stat. 316.1932(1)(d), if the arresting officer does not request a chemical or physical breath test of the person arrested for any offense allegedly committed while the person was driving while under the influence of alcoholic beverages or controlled substances, such person may request the arresting officer to have a chemical or physical test made of the arrested person’s breath or a test of the urine or blood for the purpose of determining the alcoholic content of the person’s blood or breath or the presence of chemical substances or controlled substances.
  • Pursuant to Stat. 316.1932(1)(f)3, if the arrested driver submits to a law enforcement request for breath or urine test, the driver may, at his or her own expense, have a medical professional administer an independent test in addition to the test administered at the direction of the law enforcement officer for the purpose of determining the amount of alcohol in the person’s blood or breath or the presence of chemical substances or controlled substances at the time alleged. Additionally, the law enforcement officer shall not interfere with the person’s opportunity to obtain the independent test and shall provide the person with timely telephone access to secure the test, but the burden is on the person to arrange and secure the test at the person’s own expense.

What clearly is not allowed is to refuse to submit to the law enforcement officer’s request for a breath or urine test but to demand an independent test. You only get to demand an independent test if you take theirs or they don’t even offer you one under Implied Consent.


Arrested for DUI – What Is Interference by a Law Enforcement Officer

Since the beginning of my practice in 2006, I have yet to see a case where law enforcement doesn’t request some sort of test of breath or urine. This is not to say that it never happens, but it is extremely rare. They are in the evidence gathering business and a test is certainly a major part of a typical DUI case. It would be difficult for a jury to convict a driver of a DUI if law enforcement didn’t believe that the test would be beneficial to their case.

So, with that said, most independent testing requests are made under the second option that only occurs after the driver has already submitted to the requested case. Under this provision, law enforcement doesn’t have to do much. They don’t have to tell the driver about this option and they don’t have to help the driver secure this option. The only thing they can’t do is interfere with their right to seek this option. As such, all they really have to do is give them access to the phone; the rest is on the driver.

In a case from 2020, out of First Judicial Circuit Court, acting in its appellate capacity in reviewing a Santa Rosa County case, examined an officer’s actions to see whether the conduct rose to the level of interfere. In Brammer v. State, 28 Fla. L. Weekly Supp. 249a (Fla. 1st Cir. Ct. 2020), after submitted to a breath test, the driver requested an independent test. The officer mentioned that Brammer would be responsible for paying for the test and that the officer would provide him with a list of numbers that he could call to secure a test. The officer then told him about a previous case that he had investigated where the blood test result had actually had a higher result than the breath test. The officer then stated that he wasn’t trying to dissuade from seeking that option and that he’d get the numbers for him if he wanted to move forward with that option. Brammer then declined to seek the independent test result.

The court upheld the trial court’s denial of the motion to suppress. It held that the statute’s plain language focuses on interference with the opportunity to request a blood test. In this case, Brammer’s request to receive a blood test was not blocked. Once Brammer mentioned a blood test the officer correctly told him he would have to pay for it and that the officer would provide a list of numbers for Brammer to call. The officer did not refuse Brammer’s request for information about blood tests. Nor did the officer make any suggestion that a request for a blood test would not be accepted. The officer’s recounting of another experience involving breath test and blood test results was not so egregious that it hindered Brammer’s decision of whether to obtain a blood test. The statements may have been a poor choice of words, but such statements cannot be said as a matter of law to constitute interference with Brammer’s opportunity to request a blood test.


What to Take Away from this Article

Essentially, you should store in your memory bank for a possible DUI arrest (I sincerely pray that doesn’t happen to the reader of this article) three things:

  • A driver does have a right to an independent blood test if they never request a breath or urine sample of the driver;
  • A driver does have a right to an independent blood test if the driver submitted to a breath or urine test; and
  • Law enforcement does not have to go out of its way to help you obtain an independent test; they just can’t obstruct your ability to do so.

If you need any additional information about DUIs, call board certified criminal trial law attorney Adam L. Bantner, II today. We help those accused of DUIs throughout the Tampa Bay area, including Hillsborough, Polk, Pasco, and Manatee counties. Call us at 813.397.3965 to set up your free consultation.