Sunday, April 10, 2016

What is the Officer supposed to do to accomodate the request for an independent test?

The Court of Appeals held that before the duty to transport the defendant to the testing location arises, the defendant must first show that he has made arrangement with a qualified person of his own choosing, that the test to be made if he came to the hospital, that he so informed the personnel at the jail where he was under arrest, and that those holding him, for some reason, refused to take the defendant to the hospital for a test.  In Thornhill v. State,  the Court of Appeals held that although officers are required to accommodate reasonable requests for an independent test, it is not their duty to ensure that the independent test is performed.  In this same vein, Muller v. State 257 Ga. App. 830 (2002) held that an officer originally requesting both a breath and blood test, but subsequently choosing to administer only the breath test did not mislead the defendant into believing that he could not request an independent blood test from qualified personnel of his own choosing.  The officer informed the defendant that he was entitled to additional tests at his own expense, thus satisfying the mandate of the implied consent statute. The implied consent warning advises defendants of their right to have an independent test performed.  In Jenkins v. State, 198 Ga. App. 843 (1991), the defendant was offered the opportunity to obtain an independent test but the medical facility selected refused to perform the tests, and defendant was again offered by the police officer the opportunity to have an independent test conducted.  The defendant did not select another facility, but became argumentative with the police officers.  The court found that the defendant was afforded a reasonable opportunity for an independent test, but waived it.  In Caldwell v. State, 202 Ga. App. 729, (1992), the Court of Appeals held that where defendant exercised his right to an independent test of his own choosing by demanding in writing, an additional breath test, which is performed 20 minutes after the first test by the same officer on the same Intoximeter 3000, and yielded the same result, he was afforded the opportunity to obtain an independent test.

In Crawford v. city of Forest Park to 15 Ga. App. 234 (1994), the defendant opted to go to the hospital for blood test.  Once there, the nurse informed him that the blood test result would be higher than the breath machine test result.  When the defendant turned to the arresting officer, the officer gave a confirmatory nod.  The Court of Appeals did not find that this conduct violated the officer’s duty to accommodate an independent test.  The Court of Appeals may consider this simply as a defendant changing his mind.  In Cadden v. State 213 Ga. App. 291 (1994), the defendant was short of cash to get a test.  The officer asked if someone can meet him, and the defendant asked to be taken home to get funds, which the officer declined to do.  The officer did offer to let him call someone to meet him, or to take into an ATM, which the defendant declined.  The officer’s efforts were considered reasonable.  In State v. Holmes 224 Ga. App. 29 (1996),the 5 to 10 may delay was justified in order to permit the defendant to become coherent.   
               In Lampf rule’s v. State, 234 Ga. App. 625 (1998), the defendant requested independent blood test but expressed no preference as to a testing facility. He was transported to the nearest hospital where his blood was drawn and tested. He did not object to the facility at the time. The court rejected his contention that the procedure utilized by the police denied him his right to an independent test by personnel of his own choosing. In the Court’s view, the officer’s actions in taking labral pubis to the nearest hospital, and the department policy behind it, were reasonable. For other instances where defendant’s right to an independent test was not violated, see Dosier v. State 187 Ga. App. 51 (1988), defendant taken to the hospital, paid for a test, learned he could not obtain a urine test because the hospital only did a blood test, became belligerent and was returned to the jail.  

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