08 September 2009

Post Melendez-Diaz Changes in Virginia Law

Things seem to have settled down in Virginia post-Melendez-Diaz.

Last week, in Grant v. Commonwealth, the Virginia Court of Appeals decided that, while the information in a DUI breathalizer certificate is non-testimonial, the fact that Virginia law requires attestation on the certificate means that the certificate cannot be introduced if the person who did the attestation is not present in court. Since the LEO who did the test is usually present this doesn't really cramp much in our local courts.

Prior to that, the General Assembly had a special session and passed alterations on all sorts of laws in order to make them come into compliance. Consequently, here's my understanding of what has to happen for certificates to be admissable without the person who did the test.
1) 28 Days - or more - Prior to Trial: A copy of the certificate, along with an explanation of Defendant's right to object and require presence of the person who performed the test to be present in court, must be sent both to Defendant (or counsel) and the Clerk.

2) 14 Days after Certificate Delivered: Defendant's right to have tester present is waived if Commonwealth not notified prior to this date.

3) Prior to Trial: Defendant must raise any claims not to have received timely notice from the Commonwealth prior to trial. The Commonwealth's proof of provision shall be prima facie evidence that it was delivered on that date.

4) If the Trial Court finds that notice was not timely given or that the Commonwealth, after exercising due diligence, cannot have the tester in court on the trial date, shall continue the case.

5) Continuances: Up to 90 days "if the accused has been held continuously in custody." Up to 120 days "if the accused has not been held continuously in custody." No continuance pursuant to this section shall count against Virginia's speedy trial statute.

6) Preliminary Hearings: None of this is required to use a certificate in a preliminary hearing.

1: The 14 day window. In most cases this won't make a difference and it will probably cut down on defendants filing for the tester's appearance when there is no actual issue. However, this is going to be hard fought in some serious cases. Imagine a murder trial wherein the Commonwealth notifies defense counsel of several certificates the day after counsel is appointed as part of a couple thousand pages of discovery. Defense counsel, who has a full trial schedule, doesn't read all the the discovery until it was too late. 6 months later, but several months pretrial, defense counsel finds an issue which requires the tester to be in court.

2: Exactly what proof does the Commonwealth have to provide that it delivered the certificate in a timely manner? Maybe we should all start faxing things so there is proof of receipt. I suspect that the date the Clerk received his copy shall be the generally accepted date.

3: The "has been held continuously in custody" language is unfortunate. If someone was in custody for three days 6 months ago (when first arrested) that would seem to fulfill this language even if Defendant is free on bond when the case is continued. This would seem to set things up for problems with the speedy trial arguments. If someone "has been held continuously in custody" but is not now in custody and the case is continued for 180 days will only the first 90 be exempt from the speedy trial statute?

Predictions: Most of the fuss which arose after Melendez-Diaz has died down. I think that, except as game playing, this will all fade. In fact, defense counsel under the old system could have required testers to have been in court, but they didn't because most of the time they wouldn't have gained anything. However, I hope to see tweaking of the 14 day limit and clarification of the "has been held continuously in custody" language.

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