California law provides that if a person elects to submit to a breath test following a DUI arrest in California, that person must be advised that the breath machine does not retain a sample of breath for independent analysis. Further, that if the arrestee wishes, he or she may elect to submit to an additional blood or urine test for future independent testing pursuant to Vehcle Code Section 23614. It has been my experience that very few people take up this option, perhaps because the police often neglect to admonish arrestee's as to their rights. Afterall, as far as the police are concerned, they have the breath test results, why bother advising the arrestee that they may also submit to a urine or blood test?
The question then becomes, so what if the police fail to advise the arrestee that they may submit to a blood or urine test for independent analysis? The language in the Vehicle Code is that the police "shall" advise the arrestee of this right following a breath test. It is mandatory, not permissive language.
It seems that there is very little that a defendant can do about this. It is a right without an effective remedy. California Vehicle Code Section 23614(d) makes it clear that a failure to advise a suspect of the right to an additional test pursuant to this section does not affect the admissibility of the breath test results.
However, at jury trial, if it is established that the arresting officer did not follow the provisions of Vehcle Code Section 23614, it is only fair that the jury be advised of the law and the failure by the police to follow it. A special jury instruction should be crafted by defense counsel for the judge to read to the jury at the conclusion of the trial. The instruction should invite the jury to consider the failure by the police to follow correct procedure and give it whatever weight the jury considers appropriate.