After an afternoon filled with wrangling, legislative conferees finally came to an agreement on a legislative response to Melendez-Diaz v. Massachusetts on August 19.


In June, the U.S. Supreme Court came to a 5-4 decision in that case that prosecutors generally must present the analyst who prepared a report unless the defendant has been given notice of the prosecution’s intent to rely on the report and waives the technician’s appearance.


Prosecutors, legislators, and Department of Forensic Science officials expressed fears that drug case prosecution would grind to a halt if the General Assembly did not make changes.


Two major components of the House Bill 5007 and Senate Bill 5003 fixes were agreed upon quickly.


One of those components set up a “notice and demand” procedure cited approvingly in Melendez-Diaz. Under that system, a defendant would be notified by the prosecution of their intent to use a sworn statement by the analyst instead of requiring that the analyst appear in court to testify. The defendant can then either demand that the analyst appear and be subject to cross examination.


The other component extends Virginia’s speedy trial requirements by 90 days if a defendant is locked up and 180 days if he is on bond to allow the prosecution to ensure that a technician will be available to testify. Currently, a case is generally required by state law to go to trial within five months of a determination of probable cause if a defendant is locked up and nine months if he is free.


The more difficult issue was determining how to excuse the three technicians who inspect and maintain the state’s breathalyzers from any requirement that they have to testify.


The legislation’s attempt to do so would eliminate admission of the certification of the reliability of the machine from an element of the prosecution’s proof and making the reliability a matter of maintenance for the Department of Forensic Science.


The snap occurred when some members of the Senate Courts of Justice insisted that the legislation still show that the prosecution still had the burden of proof on reliability, but their counterparts in the House insisted that such a provision would still require live testimony from the technician. The final bill reflects the view of the House.

Bob Battle
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100% of my practice is devoted to serious traffic defense and criminal litigation in state and federal courts
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