concurring in part and dissenting in part.
I fully concur with Division 2 of the majority opinion but dissent to Division 1.
It is true that after a defendant requests an independent chemical test of his blood the police officer must make “ ‘a reasonable effort to accommodate the accused who seeks an independent test.’ [Cit.]” State v. Button, 206 Ga. App. 673, 674 (426 SE2d 194) (1992). And it is also the law that the officer may not mislead the defendant by stating or implying that bonding out of jail is a prerequisite to the independent blood test. State v. Terry, 236 Ga. App. 248 (511 SE2d 608) (1999). But if the defendant is released from his arrest with sufficient time remaining to obtain such a test, there can be no harm as a matter of law from such a statement.
In this case, Smith was stopped for speeding at about 12:53 a.m. After failing the field sobriety tests and the alco-sensor test, Smith was arrested and read his implied consent rights. Smith agreed to take the state-administered breath test and then stated that he also wanted a blood test. At the station, Smith finished the breath test on the Intoxilyzer 5000 at 1:42 a.m. Smith bonded out of jail at about 3:00 a.m. and was picked up by family members. Therefore, Smith had approximately 40 or more minutes left to get an independent blood test that would be relevant to the allegations against him. See OCGA § 40-6-391 (a) (5) (person shall not drive a moving vehicle while “[t]he person’s alcohol concentration is 0.10 grams or more at any time within three hours after such driving. . . .”). The case might be different if Smith had shown that he was unable to obtain a test in the remaining time despite diligent attempts to do so. But there is no such evidence in this case.11
Smith had been properly instructed that he could get such a test and that it would be up to him to select someone to perform the test and pay for it himself. If he still wanted to have the test done, he had 40 minutes to do it after he left the jail. Any failure of the police to accommodate the request while Smith was still in custody did not cause Smith’s failure to get the test, and therefore, it was harmless. This distinguishes Terry. In that case, the defendant chose not to *589take the state-administered test in part, possibly, because she had been misled about whether bonding out of jail was a prerequisite to an independent test. The misinformation affected her choice. Here, the misinformation, if any, did not affect Smith’s choice — he wanted an independent test, and it did not affect whether he could get one — he had over forty minutes to do so.
Decided July 16, 2001. Gregory W. Holt, Laurens C. Lee, for appellant. A. Robert Tawse, Jr., Solicitor-General, Arthur J. Creque, Assistant Solicitor-General, for appellee.This outcome does not depend on shifting the burden from the State to show reasonable accommodation of the defendant’s request — the State failed to meet that burden. But, during the three-hour period in question, the defendant was in police custody for part of the time and in his own custody for the rest. While he was in police custody, the police had a duty to accommodate his request. While he was in his own custody, he was free to decide whether he wanted to take the test, and the police obviously had no control over him. And, ultimately, it is not the officer’s duty to insure that the independent test is taken. Thornhill v. State, 202 Ga. App. 826 (415 SE2d 473) (1992). The time that the defendant is free to do as he chooses cannot be ignored. And, the State surely should not have the burden of showing that the defendant did not diligently seek his own blood test after he was released. Otherwise, a defendant who bonds out of jail with plenty of time to obtain his own test but who changes his mind and chooses to skip the test and go home could nevertheless prevent introduction of the State’s blood alcohol test if an officer failed to reasonably accommodate his request for an independent test while he was in police custody.
“Colloquy among counsel and the court, although included in the record, is not sufficient to make a proper record of facts before this court for purposes of satisfying appellant’s burden.” Banks v. State, 230 Ga. App. 881, 883 (3) (a) (497 SE2d 821) (1998).