Written by attorney Brian Douglas Sloan

Arizona DUI Defense Attorney Guide to a DUI Arrest - Step 7 - Taking The Chemical Test -Blood/Breath


At some point, regardless of whether you talked to an Attorney or not, you are going to have to take a chemical test chosen by the officer.

Follow the advice of the Attorney that you were hopefully able to get in contact with.

Basically, no matter what you do, the officers will find a way to get the chemical test evidence from you. If they have to do it by force with a search warrant, they will do it. There is really nothing you can do to prevent your blood from being drawn, unless they offer you a breath or urine test, and you comply.

If you are taking a blood test, do not squirm or resist, even if you don’t like needles.

Likely, the officer/phlebotomist drew two vials of blood. One of those vials is for the State ofArizonato use in their prosecution of you, and one of the vials is for your Defense Attorney to use for retesting of the blood, if they feel it is appropriate. You will not be handed a vial, but your Attorney can retrieve that vial later if necessary. Occasionally, only one vial of blood is drawn. In that situation, your Attorney can get a sample from that vial for retesting, if they feel it is appropriate.

Note, however, that if you are given a breath test, there will not be an additional sample available for retesting. With urine, however, although there is one sample taken, that sample can later be divided up, with a portion provided to your Defense Attorney if requested.

Once the chemical test is done, the officer may advise you of your Right to an Independent Test. This does not always happen. The Right to an Independent Test is your Constitutional Right to prepare a defense at the only time the evidence is available. The only time your supposed blood alcohol content will be available is at or near the time of driving. As time goes on, your blood alcohol content, if any, would disappear.

You have a right to gather what is called “exculpatory" evidence, which is evidence that can prove your innocence.

Regardless of whether you are informed of your right to an Independent Test or not, you should tell the officer that performed the chemical test that you want to have an Independent Test done. You should ask for this for a few reasons:

1) The officer might release you rather than take you to jail

2) The officer might take you to jail and not let you arrange for an Independent Test, which might lead to the case being dismissed against you

3) The officer might interfere with your ability to get an Independent Test, which might lead to the case being dismissed

If you are released, or given an opportunity to get an Independent Test, you can chose whether to actually go get your blood drawn, or you can chose not to take the time and resources to get someone to draw your blood.

Once you make this request, there are a few things that can happen:

  • The officer tells you that you can retest the second blood vial that they took. This, in reality, is not considered an Independent Test, and you can tell the officer that you do not want to just retest their blood sample, you want to get your own blood draw and your own testing at a hospital or doctor.

  • The officer gives you an opportunity to call to attempt to arrange for someone to come down to where you are to draw a sample of your blood. You can attempt to contact a hospital or a private phlebotomist (person who draws blood), but your success is not likely. As long as the officer doesn’t interfere, however, it is not their fault that you were not able to arrange for the Independent Test

  • The officer releases you after they are done processing you. If you are released after the DUI investigation is over, you can do whatever you need to do to get an independent sample. That doesn’t mean that you have to actually do it.

  • The officer offers to take you where you want to go to get an Independent Test. You can tell the officer that you want to go to your normal hospital, or wherever you want for an Independent Test, but the officer will very likely take you to jail afterwards. If the officer interferes with your attempt to get an Independent Test, that may result in a dismissal of the case

  • The officer ignores your request and sends you to jail. This can result in a dismissal of the case for failure to allow you to gather exculpatory evidence at the only time it is available

Rundown of DOs and DON’Ts:

  • DO whatever the Attorney advised you to do over the phone
  • DO request an Independent Test
  • DO request to be released to get an Independent Test
  • DO actually get an Independent Test if you want that evidence to be evaluated by your Attorney
  • DON’T fight or squirm if the officers attempt to draw your blood

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