Denied an Independent Blood Test After a Kentucky DUI Breath Result

Attorney Answer

The independent blood test is at your own expense under Kentucky law, so not being able to pay the hospital's $250 fee does not by itself make the denial unlawful. The question worth fighting about is whether the officer did what the statute required of him — and that is a different question from the money.

First, a small but important correction: a breath result reported as "0.86" is almost certainly 0.086. That distinction matters, because 0.086 is just over the limit, and cases that close are exactly the ones where a second test can change the outcome.

KRS 189A.103(7) provides that after a person has submitted to all tests requested by the officer, the person "shall be permitted" to have a qualified person of his or her own choosing administer an additional test, conducted within a reasonable length of time. Subsection (6) of the same section identifies who qualifies — a physician, registered nurse, phlebotomist, medical technician or medical technologist.

The cost condition and the officer's duties come from a different section, KRS 189A.105. Under KRS 189A.105(2)(a)2.b, you must be told at the time testing is requested that you have the right to an independent blood test by a person of your choosing, within a reasonable time of arrest, at your own expense. Under KRS 189A.105(4), immediately after the officer's final test you must be told of that right again, you must be asked whether you want such a test, and the officer "shall make reasonable efforts to provide transportation to the tests."

So read the two together honestly. The statute says at your own expense, and nothing in the chapter requires the state to pay for your independent test. Being unable to pay the hospital that night is not, standing alone, a violation. What is genuinely arguable is compliance with KRS 189A.105(4): were you re-advised of the right after the officer's test, were you actually asked whether you wanted one, and did the officer make reasonable efforts to get you to a place where you could have it done? Those are questions of fact, decided from the video, the officer's form and his testimony. Whether any failure produces a remedy in your case is for the court, and no one can promise you one.

Two cases, not one. A breath result over the limit typically starts a license proceeding that runs separately from your criminal charge. Different decision-maker, different standard of proof, and they can reach opposite conclusions about the same traffic stop. Winning one does not dispose of the other, and the license side usually moves faster.

What you can do

1. Write down today, in order, exactly what was said: what you were told before the breath test, what you were told after it, whether anyone asked you if you wanted an independent test, exactly how you answered, who told you it would cost $250, and whether anyone offered to drive you anywhere. 2. Note where the conversation happened — roadside, cruiser, station, hospital — and who was present. Compliance with KRS 189A.105(4) is usually decided by video and audio from those locations. 3. Have the cruiser video, body-camera footage, booking-room recording and the officer's completed DUI/implied-consent form requested in writing as early as possible. Recordings get overwritten. 4. If the hospital opened a chart for you that night, request your own record from its medical records department — it may document the request and the refusal. 5. Ask your lawyer to raise the KRS 189A.105(4) issue by pretrial motion, framed as the officer's compliance with his statutory duties, not as the fee. 6. Deal with the license paperwork on its own track and on its own schedule, separately from the court date.

⏱ Time limits apply. The same chapter that gives you the independent-test right, KRS Chapter 189A, also governs the license consequences of a DUI arrest, and those are handled separately from the criminal charge. How long you have depends on what you were actually served with, so take every piece of paper you were given to a lawyer this week rather than waiting for your court date.