DUI Appeal - Georgia Requires Right to Independent Test or Suppression Occurs

In State of Georgia v. Davis, --- S.E.2d ----, 2011 WL 1843166 (Ga.App.), the trial court suppressed the State's breath test on the basis of a failure to reasonably accommodate the defendant's request for an independent test. The facts indicated that the defendant Davis was arrested after being stopped at a roadblock:

Davis initially refused to submit to the State-administered chemical breath test, but she then agreed to do so. Davis did, however, request a blood test, and she reiterated her request after she completed the chemical breath test. Johnson told Davis that he would “be glad to take her to get a blood test” and that she should choose the location for the test. When Davis indicated that she didn't know where she wanted to take the test, Johnson suggested two hospitals in the area, St. Mary's or Athens Regional. The officer also told Davis that she would have to pay for the test. According to Johnson, he was unfamiliar with the payment protocol at St. Mary's and Athens Regional, but the hospitals where he had taken previous suspects for independent chemical tests required payment at the time of the tests. Davis then explained that her purse was in the passenger's vehicle, which was no longer at the scene, and that she therefore could not pay for a blood test. Thereafter, Davis changed her request for a blood test to a second breath test, and when Johnson asked where she wanted to have it administered, Davis stated that she wanted to take it “here,” at the scene. Davis then asked if the officer would drop the charges if the second test indicated that her blood alcohol was under the legal limit, and he replied negatively; Davis then withdrew her request for another breath test.

In finding a lack of reasonable accommodation, the appeals court first set out the 'reasonable accommodation test' as follows:

The factors to be considered by the trial court in determining whether an officer reasonably accommodated an accused motorist's request for an additional chemical test include, but are not limited to: (1) availability of or access to funds or resources to pay for the requested test; (2) a protracted delay in the giving of the test if the officer complies with the request; (3) availability of police time and other resources; (4) location of the requested facilities, e.g., whether the requested facility is in a different jurisdiction; and (5) opportunity and ability of accused to make arrangements personally for the testing.

Here, the trial court had previously found that:

[A]fter Davis requested an independent blood test, Johnson told her that she would have to pay for the test (even though he did not know the protocol regarding payment at either of the local hospitals). However, her purse was in the vehicle she had been driving, which had since been driven from the location, and she told Trooper Johnson that she did not have money to pay. The State offered no evidence to show that the Defendant was afforded the opportunity to have her purse brought back to the scene or was given another opportunity to make arrangements to pay for the test. Under these circumstances, the officer did not reasonably accommodate the Defendant's request, and the results of the State-administered breath test are inadmissible.

In affirming suppression, the appeals court concluded:

We are not persuaded by the State's argument that Davis withdrew her request for an independent blood test after Officer Johnson advised her that she would have to pay for the test but failed to allow her the opportunity to make other payment arrangements. As we have previously stated,

the police cannot escape the duty to reasonably accommodate individuals who have invoked the right to an additional test simply because such individuals fail to insist on alternatives, especially when they have not been instructed of their responsibility to make such arrangements and that failure to do so results in a waiver. It must be remembered that such individuals are in police custody and do not have free reign to dictate their own actions. Because of the very nature of the arrest, their faculties are often impaired, and their actions are largely dictated by the instructions given to them by the police.

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