A Right Most Drivers Never Hear About
Florida law gives you a right that almost no one uses, because almost no one is told about it clearly. Under section 316.1932(1)(f)3, after you submit to the state’s test you may, at your own expense, have a physician, a nurse, a qualified technician, or another person of your own choosing administer an independent test of your blood, breath, or urine. The point is fairness. The state should not be the only party holding the evidence of how much alcohol or what substance was in your system at the time.
The Officer Cannot Stand in the Way
The right would mean nothing if the police could quietly block it, so the statute imposes a duty on the officer not to interfere and to give you timely telephone access to arrange the test. The burden is on you to set it up and pay for it, but the officer has to give you a real opportunity to try. Florida courts take that duty seriously. In State v. Durkee, 584 So. 2d 1080 (Fla. 5th DCA 1991), a good-faith failure to provide the independent test led the court to suppress the state’s own breath result, and a circuit court in Galati v. State, 1 Fla. L. Weekly Supp. 162 (Fla. 12th Cir. Ct. 1992), held that the opportunity must be afforded no matter how unlikely the driver was to use it.
Why an Independent Test Matters
An independent test can do two things the state’s test cannot. It can contradict the breath machine with a blood draw taken at a known time, which matters when alcohol is still rising and the two readings will not match. And it preserves evidence the defense controls, the kind of potentially exculpatory material the United States Supreme Court spoke of in Brady v. Maryland, 373 U.S. 83 (1963). When the right was requested and denied, that denial becomes its own argument to suppress the state’s result.
How It Works at 1 a.m.
The practical problem is obvious: where do you find a phlebotomist in the middle of the night from a holding cell. Officers are often unhelpful, and some courts have said handing over a phone book is enough to satisfy the statute. The realistic route is to call for fire-rescue and ask for a blood draw on the ground of a medical need, with the sealed sample kept by rescue rather than turned over to the police. None of this is legal advice for a specific situation, but it is the kind of thing worth knowing before the night it matters, and worth raising with a lawyer the moment a case begins.
Where This Fits With a Refusal
The independent test belongs to the driver who submits, since it is a test in addition to the state’s. But it sits inside the same implied consent statute that governs refusals, and it carries the same theme: the rules around chemical testing come with duties on the officer, and when those duties are ignored, the state’s evidence can be suppressed. Whether you submitted or refused, the question is the same, did the officer honor the rules the statute imposes.
Related: Implied consent and the warning, Breath test defense, Blood test defense, and Implied consent and refusal.
I started out as an Assistant Public Defender in Florida’s Thirteenth Judicial Circuit, in Tampa, and today I am one of six ACS-CHAL Forensic Lawyer-Scientists in Florida. A refusal case runs on two tracks at once, your driving privilege and a separate criminal charge, and I fight both, demanding the formal review hearing and testing whether the stop, the arrest, and the implied consent warning hold up. Learn more about my background.
Common Questions
Do I have a right to my own test in Florida?
Yes. Under section 316.1932(1)(f)3, after you take the state's test you may, at your own expense, have a physician, nurse, or other qualified person of your own choosing administer an independent test of your blood, breath, or urine. It is meant to give you evidence that is not controlled by the police.
Does the officer have to help me get an independent test?
The officer cannot interfere and must give you timely telephone access to arrange one, though the burden is on you to set it up and pay for it. If the officer blocks the opportunity, Florida courts have suppressed the state's own breath result, as in State v. Durkee.
Why would an independent test help my case?
An independent blood draw taken at a known time can contradict the breath machine, which matters when your alcohol level was still rising. It also preserves evidence the defense controls, and a denial of the right can be used to suppress the state's result.
How do I get an independent test from jail?
It is hard, and officers are often unhelpful. A realistic option is to call for fire-rescue for a blood draw based on a medical need, with the sealed sample kept by rescue rather than given to police. This is general information, not advice for a specific case, so raise it with a lawyer right away.
Does the independent test right apply if I refused?
The independent test is a test in addition to the state's, so it belongs to a driver who submitted. It lives in the same implied consent statute as the refusal rules, though, and reflects the same principle: when the officer ignores a duty the statute imposes, the state's evidence can be challenged.
This page is general information about Florida law, not legal advice, and it does not create an attorney-client relationship. Florida’s implied consent law is section 316.1932, Florida Statutes; the criminal refusal offense is section 316.1939; blood testing in serious-injury and death cases is governed by section 316.1933; the impairment presumptions are in section 316.1934; and the administrative suspension process is in sections 322.2615 and 322.2616. Trenton’s Law (House Bill 687, Chapter 2025-121, Laws of Florida) took effect October 1, 2025, and these rules continue to change, so confirm current requirements with an attorney. Every case turns on its own facts, and past results do not guarantee a similar outcome.
