Right to Independent Test of Blood Alcohol

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O.C.G.A. § 40-6-392 lays out the rules and regulations for chemical test of your blood alcohol content that the arresting DUI officer, courts, prosecutors, and persons arrested for Driving Under the Influence are governed by.

O.C.G.A. § 40-6-392(a)(3) provides a “person who submits to their arresting officer’s request for a chemical test of their blood alcohol content “may have a physician or a qualified technician, chemise, registered nurse, or there qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.”

The police must comply with your request unless there is “justifiable failure or inability to obtain an additional test”, simply put, you get a test of your own choice unless the officer can explain why he could not meet your request to the court.

Even if there are no other tests available, you can demand an additional test done on a state-adminstered breath machine.


The factors the court generally consider in whether the officer made a reasonable effort to accommodate a request are:

(1) your availability to pay for the the test;

(2) if the officer complies, how long will it take to accommodate your request, for example timing of the test;

(3)  availability of police resources to accommodate your request;

(4) location of facility you desire; and

(5) your opportunity and ability to make the arrangements personally.

The trial court will weigh all of these factors.

If the court finds the officer did not live up to his responsibilities then your state administered breath test will be inadmissible in court against you.

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