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State v. Benoir12/19/2002
ommonwealth, 37 Va.App. 194, 555 S.E.2d 422, 424-25 (2001); see also Annotation, Drunk Driving: Motorist's Right to Private Sobriety Test, 45 A.L.R.4th 11, 27 (1986) (collecting cases); see generally State v. Patton, 280 Mont. 278, 930 P.2d 635, 638-39 (1996) (stating "well-settled" rule that police officer has no duty to take initiative or assist accused in obtaining exculpatory evidence). We are aware of no court, nor has defendant cited to any, that has gone so far as to require the state to pay for such a test absent a specific statutory provision requiring the state to do so. To the contrary, several courts have articulated the due process right specifically as a right to obtain an independent test at the suspect's own expense. See, e.g., Bilbrey v. State, 531 So.2d 27, 29 (Ala.Crim.App.1987); Cruikshank, 2 P.3d at 105; State v. Choate, 667 S.W.2d 111, 112 (Tenn.Crim.App.1983).
11. Furthermore, the facts do not demonstrate that the state violated such a right, if it existed. Pursuant to the statute, the defender general was apparently prepared to pay for the test. Even under defendant's theory, we could not conclude that the state is required to force any **703 facility defendant might select to draw the blood sample and bill the state.
12. We thus conclude that the State here has done all that it is statutorily and constitutionally required to do, and that defendant's motion to dismiss and suppress was correctly denied.
Affirmed.
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