Your Right to an Independent Blood Test After a DUI Arrest

Yes. After a DUI arrest in Montana you have a right to an independent blood test, separate from whatever test the officer asks for. You have to request it and pay for it, and the officer does not have to drive you. But the officer must tell you the right exists, and police may not unreasonably get in the way of your effort to use it. This page explains how the right works and what courts have done when it was violated. It is part of our Montana DUI Guide.

What the Statute Says

The right is in MCA § 61-8-1019(2), in five sentences:

• In addition to any test administered at the direction of a peace officer, a person may request that an independent blood sample be drawn by a physician or registered nurse.
• The peace officer may not unreasonably impede the person's right to obtain an independent blood test.
• The peace officer may but has no duty to transport the person to a medical facility or otherwise assist the person in obtaining the test.
• The cost of an independent blood test is the sole responsibility of the person requesting it.
• The failure or inability to obtain an independent test does not preclude the admissibility of any test given at the direction of a peace officer.

A neighboring subsection adds that, on request, full information concerning any test given at the officer's direction must be made available to you or your attorney (MCA § 61-8-1019(3)).

A Due Process Right, Not Only a Statute

The right also rests on due process. In State v. Swanson, 222 Mont. 357, 722 P.2d 1155 (1986), it held that a person accused of a crime involving intoxication has a right to obtain a sobriety test independent of the one offered by the arresting officer, as part of the right to gather exculpatory evidence. The Court's formulation has been repeated ever since: "While the police have no duty to assist an accused in obtaining independent evidence of sobriety, they cannot frustrate such an effort through either affirmative acts or their rules and regulations."

In State v. Neva, 2018 MT 81, the Court described the statute as the Legislature's codification of that process.

The Officer Must Tell You

A right nobody mentions is not much use, particularly when you cannot call a lawyer before testing. In State v. Strand, 286 Mont. 122 (1997), the Court held that due process requires the arresting officer to inform the accused of the right to an independent blood test, regardless of whether the accused consents to the officer's test. Its reasoning was about time. Blood alcohol evidence fades, so unless a person is told while the blood can still be analyzed, the right is meaningless.

In practice the notice is part of the implied consent advisory the officer reads. Whether it was read is one of the first things we check on the video.

How the Cases Have Come Out

Two Different Violations, Two Different Remedies

In State v. Schauf, 2009 MT 281, the Court sorted its earlier decisions into two groups.

• Failure to advise. Where the officer obtains a breath or blood sample but neglects to tell the accused about the independent test, the proper result is suppression of the State's test results. The case continues on the other evidence.
• Actually impeding. Where the officer actually impedes the accused's right to an independent test, the proper remedy is dismissal of the DUI or a specifically DUI-related charge. That is what happened in Swanson and Minkoff.

To show the second kind of violation, the Court looks for two things: the accused timely requested the independent test, and the officer unreasonably impeded the right to it. Minkoff added that an officer cannot defeat the first requirement by talking a person out of asking.

What Officers Do Not Have to Do

Neva shows the other side. The trooper was the only one on duty across three counties that night. He told the driver she could get a blood test at her own expense, retrieved her phone, let her try to arrange a ride, and encouraged her more than once to do it promptly. When her calls went unanswered, he drove her home, about ten miles from the hospital, because he believed she was too intoxicated to be released on foot. The Court held he had no obligation to drive her to the hospital and had not unreasonably impeded her.

The Court contrasted an earlier case in which an officer told a driver they would "go get blood in a little while" and then left her in her cell. A promise to transport creates an obligation to follow through.

How to Ask, and Why Timing Matters

Nothing in the statute requires special words, but the cases suggest what makes a request effective:

• Ask clearly and early. A timely request is one of the two things a court looks for. Most of the process is recorded, so a plain request will be on the video.
• Expect to arrange it yourself. You may need a sober person to drive you to a hospital or clinic after release, and you will be billed.
• Go promptly. In Strand the Court called blood alcohol evidence evanescent and said the decision to get an independent test must be made in a timely fashion. The longer the delay, the less the result says about the time of driving.
• Keep the paperwork. Note the facility, the time of the draw, and who drew it, and give that to your lawyer.

An independent test is not always helpful. It can confirm the State's number as easily as contradict it, and the statute says that failing to get one does not keep the State's test out. How the State's own sample is collected and analyzed is covered in blood test procedure and challenging the blood test. For where this fits among other defenses, see DUI defenses.

This page explains Montana law in general as of the 2025 Montana Code Annotated and the court decisions cited. It is not legal advice about your specific case.