Given this is my first official blog post on the very debated, complex, and serious issue of driving under the influence of alcohol and/or drugs, I thought I would take a short paragraph to explain how I want to approach DUI/DWI blogs. First, I will not cover everything in one blog. The issues and arguments on both sides are far too complex. Second, I want to approach certain aspects of a DUI/DWI case and put these aspects, individually, under the microscope. While these aspects may not be in any particular order, I do hope that, one day, most of what is involved in a DUI/DWI prosecution is covered. Finally, I want to continue my particular blogging goals with the DUI/DWI debate.
Were you aware some states allow you to get your own testing done if you are ever tested, by blood or breath, for suspicion of DUI/DWI? In Kansas, independent testing is allowed under KSA 8-1004. This statute allows people in Kansas a reasonable opportunity to have their own test done by a physician of the person’s choosing. If the officer refuses to permit an independent test and the testing will not interfere with their testing protocols, the Court could view the test offered by the prosecution as incompetent evidence. Other states have similar statutes. This particular statute, and ones similar to it, seem to promote the freedom of a defendant to possibly confirm a test with a physician of their choosing that they trust.
As a former prosecutor, this allowance did not seem to present any particular problems with the prosecution of a case if the prosecution’s testing was already done properly. For the defense, however, while this allowance is gracious, the independent test is often done far after the tests done by law enforcement. If blood is withdrawn for an independent test, much later in time, what effects does this have on the test? Most prosecutors would argue any difference would be in favor of the defendant anyway as the alcohol content would likely go down for a later test. Defense attorneys would argue that in order for the samples to be equal, the independent test should be done as close to the time as any other tests. We can see how this can present challenges for the defense, but I think everyone would agree it is not bad form to allow a defendant an opportunity to confirm any results independently.
Until next post…drive safe!