Right to an independent test in DWI cases

There is a right to an independent blood test under New Jersey drinking and driving laws. A defendant may successfully challenge the introduction of a breathalyzer examination when he or she is “informed of his right to have an independent examination and attempts to take advantage of that right, but is not afforded a meaningful opportunity to have the independent test conducted. That is, it must be shown that the absence of established police procedures has interfered with or thwarted defendant’s attempt to exercise the right to an independent examination.” State v. Jalkiewicz, 303 N.J. Super 430 (1997). In this case, the arresting officer’s summoning of the cab immediately upon completing the breathalyzer tests on defendant, taken in conjunction with his prior advice to defendant concerning the right to an independent test, was all that was necessary to further defendant’s exercise of his right. Rather than seek an independent blood test, the defendant used the cab to take himself home. Thus, there was no thwarting of the defendant’s right to have an independent test. It is only where the absence of police procedures interfere with the defendant’s attempt to exercise his statutory right that relief must be given. Id.

However, where the evidence demonstrates that the police thwarted defendant’s opportunity to arrange a meaningful independent blood test, the appropriate sanction is a suppression of the blood test results. However, a defendant may still be found guilty based upon observation evidence that he operated his motor vehicle while under the influence of alcohol. State v. Broadley, 281 N.J. Super 230 (1992).

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