Who gets to pick the test administered in a DUI arrest?
The short answer is it depends.
Let’s assume some hypothetical facts. First, the driver is arrested, Georgia Implied Consent rights are read and the Officer designates either a blood, breath, or urine test. Let’s assume that the police officer chooses a breath test. When the Intoxilyzer 9000 is set up, the driver states that he will not perform a breath test but that he will only submit to a blood test. Implied consent is not reread and blood was never designated in the context of Implied Consent rights. O.C.G.A. 40-5-67.1 (b) plainly and expressly states that “At the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent.” The Officer never read implied consent and designated blood. Did the Officer properly designate the state test? Did the driver request an independent test?
In Ladow v. State, the defendant interrupted the officer after he had read the first sentence of the Implied Consent warning. The defendant thereupon expressed her familiarity with the content of the warning and said, “I want a blood test.” Without directly responding to Defendant’s request for a blood test, the officer read the remainder of the notice and then obtained the defendant’s consent to submit to a state-administered blood test. Ladow did not again ask for an independent blood test, and at no point was once administered. The state in Ladow argued that the officer reasonably construed the defendant’s statement as referring to a certain type of state-administered test. The Court of Appeals rejected that argument, reasoning as follows:
Each … notice [outlined in OCGA § 40-5-67.1] ends with the question, “Will you submit to the state-administered chemical tests of your ((officer) designates which tests) under the implied consent law?” None, however, asks the accused whether [he] wants an additional, independent chemical test. And none specifies to the accused any requirements of requesting that test—linguistically, temporally, or otherwise. We do not believe that the legislature intended the notices to set up pitfalls for an accused who desire to have an additional, independent chemical test administered. We therefore cannot place upon an accused the burden of uttering words unspecified, yet more particularized than those uttered here: “I want a blood test.”[emphasis added]
Again in Johnson v. State, in response to the officer’s implied consent warning, Johnson expressed his preference to take a urine test by stating “I’ll take a urine test” rather than the state-administered breath test that was designated by the Officer. Because these statements reasonably could be construed to be an expression of a desire for an independent urine test, the Court of Appeals concluded that in Johnson, as in Ladow, the trial court erred in admitting the results of the state-administered test.
In Wright v. State, 789 SE2d 424 (2016), the Court of Appeals articulated once and for all the standard for what amounts to a request for an additional independent test and found based on the Ladow Court decision that “[a]n accused’s right to have an additional, independent chemical test or tests administered is invoked by some statement that reasonably could be construed, in light of the circumstances, to be an expression of a desire for such test.”
The Driver’s statement that I will only take a blood test at the police station could reasonably be construed as a request for an additional independent test of his choosing. As the only choice, he has under the implied consent statute is for an additional independent test. He is not legally able to choose which state-administered test he will submit as this test must legally be designated by the Officer. Therefore, it is likely that the blood test will be suppressed by the trial court or on appeal for failure to accommodate the request for independent additional tests.
The police officer must designate the state-administered test of the breath, blood, or urine in a Georgia DUI arrest. However, if the driver takes the test designated by the police officer, the driver can choose his test by any statement that could be reasonably construed as a request for an additional test.