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Virginia Legislature Special Session Approves a "Fix" for the Melendez-Dias problem.

Posted by Paul McGlone | Aug 19, 2009 | 0 Comments

This bill is close to the McEachin bill discussed here last week, but the notice provision runs 28 days before trial and our objection period runs 14 days after notice is filed, rather than the proposed 21/10, where the 10 days was measured from the date of receipt by defendant or counsel

Various provisions cover drug, blood, and breath testing, with all referring to the key language in 18.2-187.1 (a,b,c,d,e).

Old 187.1 is entirely deleted.  I've pasted the new section 187.1 below, but there is also a link to the full legislation.

Still many of the same problems as the first drafts.   6 month accuracy testing to be taken off of breath sheets, but nothing to cure that problem with existing cases.  

As "Emergency" legislation, this goes into effect as soon as the Governor signs it: 

http://leg1.state.va.us/cgi-bin/legp504.exe?092+sum+SB5003

It was/is a busy day in Richmond, with the list of legislation growing all day:

http://leg1.state.va.us/cgi-bin/legp504.exe?092+lst+ALL

Of course, they found time to pass a joint resolution to make sure that everybody got paid for working on the Special Session!

Paul McGlone
Fairfax, Virginia
703-273-2750
www.mcglonelaw.com

§ 19.2-187.1. Procedures for notifying accused of certificate of analysis; waiver; continuances.

The accused in any hearing or trial in which a certificate of analysis is admitted into evidence pursuant to § 19.2-187 or § 19.2-187.01 shall have the right to call the person performing such analysis or examination or involved in the chain of custody as a witness therein, and examine him in the same manner as if he had been called as an adverse witness. Such witness shall be summoned and appear at the cost of the Commonwealth.

A. In any trial and in any hearing other than a preliminary hearing, in which the attorney for the Commonwealth intends to offer a certificate of analysis into evidence pursuant to § 19.2-187, the attorney for the Commonwealth shall:

1. Provide by mail, delivery, or otherwise, a copy of the certificate to counsel of record for the accused, or to the accused if he is proceeding pro se, at no charge, no later than 28 days prior to the hearing or trial;

2. Attach to the copy of the certificate so provided under subdivision 1 a notice to the accused of his right to object to having the certificate admitted without the person who performed the analysis or examination being present and testifying; and  

3. File a copy of the certificate and notice with the clerk of the court hearing the matter on the day that the certificate and notice are provided to the accused.

B. The accused may object in writing to admission of the certificate of analysis, in lieu of testimony, as evidence of the facts stated therein and of the results of the analysis or examination. Such objection shall be filed with the court hearing the matter, with a copy to the attorney for the Commonwealth, no more than 14 days after the certificate and notice were filed with the clerk by the attorney for the Commonwealth or the objection shall be deemed waived. If timely objection is made, the certificate shall not be admissible into evidence unless (i) the testimony of the person who performed the analysis or examination is admitted into evidence describing the facts and results of the analysis or examination during the Commonwealth's case-in-chief at the hearing or trial and that person is present and subject to cross-examination by the accused, (ii) the objection is waived by the accused or his counsel in writing or before the court, or (iii) the parties stipulate before the court to the admissibility of the certificate.

C.  Where the person who performed the analysis and examination is not available for hearing or trial and the attorney for the Commonwealth has used due diligence to secure the presence of the person, the court shall order a continuance.  Any continuances ordered pursuant to this subsection shall total not more than 90 days if the accused has been held continuously in custody and not more than 180 days if the accused has not been held continuously in custody.

D. Any objection by counsel for the accused, or the accused if he is proceeding pro se, to timeliness of the receipt of notice required by subsection A shall be made before hearing or trial upon his receipt of actual notice unless the accused did not receive actual notice prior to hearing or trial. A showing by the Commonwealth that the notice was mailed, delivered, or otherwise provided in compliance with the time requirements of this section shall constitute prima facie evidence that the notice was timely received by the accused. If the court finds upon the accused's objection made pursuant to this subsection, that he did not receive timely notice pursuant to subsection A, the accused's objection shall not be deemed waived and if the objection is made prior to hearing or trial, a continuance shall be ordered if requested by either party.  Any continuance ordered pursuant to this subsection shall be subject to the time limitations set forth in subsection C.

E. The accused in any hearing or trial in which a certificate of analysis is offered into evidence shall have the right to call the person performing such analysis or examination or involved in the chain of custody as a witness therein, and examine him in the same manner as if he had been called as an adverse witness.  Such witness shall be summoned and appear at the cost of the Commonwealth.

About the Author

Paul McGlone

Experience: Attorney McGlone has handled 1,000's of cases in Fairfax County Courts. Paul McGlone knows all of the best practices to give his clients all advantages available for the best results.  Paul McGlone has attended 100's of hours of professional training in the highly specialized area...

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