Citizens suspected of driving under the influence in Tennessee do have some rights during the arrest process. One of those rights is the ability to request an independent sample of your blood. The  purpose of this law is to give the accused the right to test his or her blood to determine if test is accurate. Typically, two blood samples are taken during the procedure. One is kept by law enforcement and tested, and the second sample is saved if the person who was arrested wanted to have it tested.

The question is how do you obtain a independent blood sample after having given a breath test sample? First, breath alcohol testing is routinely performed in Nashville, Davidson County, Tennessee DUI cases.  In the surrounding counties outside of Nashville, like Williamson County, breath tests are not used. I guess they do not trust the results. If you submit to a breath test you have the right to request that an independent sample of your blood be taken and also tested. Here is the procedure:  1)  Make the request. 2) Law enforcement must then take you to have the blood drawn.  Note, that you must be able to pay for the sample yourself. Law enforcement is not required to pay for your independent sample. 3)  Medical personnel, usually at a hospital, draws your blood. 4) You must arrange to have the sample tested, also at your own expense.

What happens if the sample you have asked for is taken? The appellate courts have ruled in two cases that failure to provide a defendant a independent sample is a due process violation. The remedy in these cases for a due process violation is a dismissal.

In State v Livesay, the Court dismissed a DUI charge because law enforcement did not allow the Defendant’s doctor to draw his blood while he was in jail. The Court held this was a due process violation. In State v Geselbracht, the Court of Criminal Appeals again held that it was a due process violation when the police denied Mr.Geselbracht a independent blood test.

The principle is that you have a right to request a independent blood test after you submit to a breath test. One interesting issue in all of these cases is the requirement that the defendant be able to pay for the sample himself. Who pays for the blood sample? What about people that may not have the money to pay for an independent blood sample? Is this also a due process violation?