State v. Davis, A11A0097, May 12, 2011. DUI-Implied Consent-Additional Tests-Reasonable Accommodation.
Danielle Davis was arrested for DUI at a roadblock in downtown Athens, Clarke County Georgia on June 27, 2009. The Trooper read Ms. Davis the implied consent rights for a breath test. Ms. Davis agreed but she requested an independent blood test. The Trooper told her that he would be happy to accommodate her request for a blood test and asked her where she wanted to go. Davis responded that she did not know. The Trooper offered St. Mary’s Hospital or Athens Regional Hospital. The Trooper told Davis that she would have to pay for the test. Davis stands that her passenger had left with her purse and she had no means to pay. The Trooper admitted on cross-examination that he was really unfamiliar with the blood testing policies at St. Mary’s and Athens Regional Hospitals but that was his experience at other hospitals. Davis then changed her request to a second breath test. Davis asked if the second breath test was under the legal limit would he let her go and the Trooper responded no so she withdrew her request for a second breath test.
Georgia law requires a trial court to determine if the failure of a Defendant to obtain a second independent test was justifiable or was the request reasonably accommodated. The factors are (1) availability of or access to funds or resources to pay for the test, (2) a protracted delay in giving of the test if the officer complies with the request, (3) availability of police time and resources, (4) location of the requested facilities, and (5) opportunity of the accused to make arrangements personally for the testing. Whether the officer made a reasonable effort to accommodate the request is a matter of local circumstances which the trial judge is in a better position to determine than the appellate court. Here the Trooper told Davis that she would have to pay for the tests even though he really did not know the policies of either hospital available to her. Further, Davis was not offered any opportunity to try to retrieve her purse or otherwise to pay for a test. The State has the burden of proving that the request was reasonably accommodated. Further, there was no withdrawal or waiver of the request when the officer does not explain to the accused her rights and opportunities to avail herself of a test.