Under Arizona law, when the police test your blood alcohol concentration (BAC) during or after a drunk driving traffic stop, you have the right to request independent testing. Obtaining an independent test of your BAC can be extremely important, and even requesting an independent test can help defend against a drunk driving charge in some cases. In this article, we provide an overview of what you need to know about independent BAC testing when you are charged with driving under the influence (DUI) in Arizona:

1. You Have the Right to Request (and Obtain) an Independent BAC Test

In Arizona, you are required to submit to a BAC test when the police arrest you for DUI. This requirement exists under the state’s “implied consent” law, and violating Arizona’s “implied consent” law can lead to a one-year driver’s license suspension even if you are not ultimately convicted of driving under the influence.

However, you also have the right to request (and obtain) an independent BAC test. A variety of issues can lead to flawed BAC test results; if you obtain independent test results that differ from those obtained by the police, your defense attorney can use this to fight your DUI.

2. You Should Request an Independent BAC Test Promptly After the Police Test Your Breath, Urine, or Blood

Once the police test your BAC (through either a breath, blood, or urine test), you should promptly request an independent BAC test. If you don’t know where to get your independent BAC test, a DUI defense lawyer can refer you to a local testing facility.

3. Obtaining an Independent BAC Test Can Help Your Defense in Several Ways

Obtaining an independent BAC test can help in several different ways to defend against an Arizona DUI. This is why the right to request independent testing exists—and it is why you should assert this right when facing a DUI charge. Some examples of how obtaining an independent BAC test can help with defending against an Arizona DUI include:

  • Presenting an Alternate BAC Reading – In DUI cases, the prosecution has the burden of proving your guilt beyond a reasonable doubt. If the prosecution’s primary piece of evidence is your BAC reading, presenting an independent test result that puts your BAC below the legal limit could be enough to cast reasonable doubt in the minds of the jurors.
  • Raising Questions about Your Police BAC Test Result – If you have an independent test result that differs from the result obtained by the police, this can raise questions about the validity of the police reading. For example, was the testing device properly calibrated? Was your sample contaminated? These are also questions that can create reasonable doubt for jurors during the trial.
  • Corroborating Your Story – Suppose you only had one drink, and when you got pulled over, the police recorded your BAC at 0.12 percent. This doesn’t make sense, and it suggests that the police BAC test result is flawed. However, if all you have is your word against the police reading of your BAC, most jurors will go off of your BAC test result. On the other hand, if you have an independent test result that puts your BAC below the legal limit, this can help corroborate your story, and it will allow you to build a much stronger defense.

4. If You Request and Are Denied Independent Testing, This Can Help As Well

Let’s say you request an independent BAC test; but, instead of complying with your request, the arresting officer denies it. Or, maybe the arresting officer ignores your request initially, and you cannot obtain an independent test for several hours. In these types of scenarios, the simple fact that you requested an independent test can potentially provide a defense to your Arizona DUI.

The Arizona Supreme Court has held that denying an individual’s right to obtain an independent DUI test is grounds for dismissal of the individual’s DUI charge. In McNutt v. Superior Court, 177 Ariz. 7 (1982), the defendant requested to consult with his attorney and obtain an independent BAC test. However, the police denied his request. Upon being released approximately two and a half hours later, the defendant contacted his attorney, who told him that it was too late to obtain an independent test.

Based on these facts, the Arizona Supreme Court decided that the defendant’s case should be dismissed. In the relevant part, the Court’s opinion states, “We agree with the superior court that the case should be dismissed. A.R.S. § 28-692(F) and constitutional standards of the due process give a DWI suspect the right to obtain an independent blood test. . . . Dismissal of the case with prejudice is the appropriate remedy because the state’s action foreclosed a fair trial by preventing petitioner from collecting exculpatory evidence no longer available.”

5. If You Didn’t Request an Independent BAC Test, You Still Have Options

What if it is too late for you to request an independent BAC test? Even if you did not request independent testing, you could still have a variety of defenses available. While requesting an independent BAC test is one possible way to build a defense to a DUI charge, it is far from the only option. An experienced Phoenix DUI lawyer will be able to thoroughly evaluate the facts of your case and identify the defenses that you can use to fight your Arizona DUI.

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