Right to an Independent Test

New Jersey Refusal Offense Defense Attorneys

In accordance with N.J.S.A. 39:4-50.2(c), a defendant who has provided a breath sample has the right to request an independant chemical test to further measure their blood alcohol concentration (i.e. BAC). In fact, this right is set forth in the Standard Breath Test instruction that must be read to all individuals prior to conducting a breathalyzer. The issue in terms of the right to an independant chemical test is that police are invariably unable to follow through on what is contained in section 39:4-50.2(c). Police often ignore requests by DWI suspects for a blood test altogether or supply cryptic responses which only confuse the motorist. If you requested an independant blood test and you were not provided with this opportunity, the lawyers at our firm, the Law Offices of Jonathan F. Marshall, can help. We will fight the admission of your BAC readings on this basis, as well as any other basis, that is revealed during the course of our representation. Give us a call anytime 24/7 to discuss the fact of your
driving while intoxicated charge with one of our attorneys.

Obligation of Police Regarding Independant Blood Testing

During the course of administration of a breath test, police are required to inform a suspect of his right to an independant blood test. The obligation to provide the opportunity for such a test is, however, limited to those individuals who actually consent and provide the required breath samples. To fulfill this obligation, police are required to release a motorist to a responsible third party so that the accused can visit a hospital or some other facility that can conduct an independent test. It may even be permissible for police to call a taxi so that the defendant can get the test. Following cases have dealt with this issue in various ways:

  • State v. Nicastro: The accused requested that the state police and then later local police, transport him to the hospital for an independent test. When these requests were denied, he asked that a taxi be called, at his own expense, to transport him to the hospital for the test. That request was also denied and, instead, the defendant was transported home. The court concluded that the police had “thwarted” the right of the accused to obtain an independent test and precluded use of the breath test results.
  • State v. Ettore: The court found that the accused has a right to be released to a responsible adult, or even his attorney, following processing so that he or she may secure an independent blood test.
  • State v. Jalkiewicz: The court concluded that the police officer calling a taxi to take an accused to the hospital for the test suffices in fulfilling the independent test obligation.

If you would like to discuss your right to an independent blood test or any other issue surrounding a DWI charge, a lawyer on our staff is available immediately for a complimentary consultation. We can be reached at 877-450-8301.