Your Right to an Independent Chemical Test

According to Iowa law, when you are arrested for an OWI, you have the right to an independent chemical test. This test would be in addition to any breath or urine tests administered by the arresting officer, and would come at your own expense. However, there is no independent chemical test right unless and until you first take the formal test that the officer has requested (breath or urine). This means that once the officer has invoked implied consent and read you the implied consent advisory, and you take that test requested, you do have the right to request a different kind of test.

If you have reason to doubt the accuracy of the initial chemical test, requesting an independent different kind of test is a good course of action. However, the drawback with urine or blood is it may detect drugs. Any illegal drugs in your system that are not prescription (and taken accordance with the prescription, and not mixed with alcohol) is a violation of the law for OWI purposes. The breath test only tests for alcohol. Even if you only ask for a re-test or a second breath test, the officer has a duty to inform you of what the statute does and does not allow.

Requesting Your Independent Test

Requesting your independent drug test should be a simple process. In the 2014 State vs Lukins case (846 N.W. 2d 902), the Iowa Supreme Court ruled that a request for an independent chemical test should be treated similarly to that of a phone call.

The Supreme Court also held that in the case of “any statement reasonably implicating the right” it is the officer’s responsibility to clarify and educate you on your rights to an independent chemical test. This means you do not have to ask specifically for an independent chemical test or use any particular language when requesting your test. By simply asking about an another additional or different test, the arresting officer must expand on your rights and clarify the request. But the right only can be invoked once you take the implied consent test first. (However, you do have the right to refuse a blood test without consequence – unless a warrant has been obtained).

If you or a loved one are facing OWI charges, speak with an experienced criminal defense lawyer. Adam Pollack has well over a decade of criminal defense experience and will fight for your rights. Request a free consultation with Adam Pollack to learn more.

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