In a previous blog, we have examined how Kansas and other states with a similar statute allow a person charged with DUI or DWI the opportunity to obtain their own independent test of a biological sample.  Is the state required to maintain all samples they obtain from an accused driver, however?  If you have a statute similar to KSA 8-1006, the answer seems to be, “no.”

What is confusing for the defense is that the law allows an independent test, but if the sample is not preserved for testing once the state is done, how can an accurate and independent test be done?  Obviously, any testing done even hours after an arrest, would be challenged at trial by the state as not being nearly as accurate as the sample they obtained after the arrest.  Also, accused drivers could be in detention for hours before they can be released, if at all.  How does one obtain an accurate independent test when time is a factor?

For the prosecution, this relieves the state of the risk of losing every DUI or DWI trial in which it happens that the sample is lost after testing.  I believe the policy behind such a law wants valid test results to have the chance of being admitted even thought it happens that the sample was not preserved for months after testing.

To conclude, this is a very confusing contradiction of the laws, in my opinion.  If your state has similar laws towards testing, please comment.  Until next time, drive safely!