On September 1, the Virginia Court of Appeals reversed a conviction for driving under the influence, citing Melendez-Diaz v. Massachusetts.


The appellate court’s decision in Grant v. Commonwealth is the first in Virginia since Melendez-Diaz was decided by the U.S. Supreme Court in late June. At the time of the Melendez-Diaz decision, the Grant case was pending and the Court of Appeals asked for supplemental briefs in light of the case.


The Court of Appeals panel found that state law makes testimonial the certificate submitted by the person administering a breath test, even though “there is no constitutional requirement that the factual predicates in Virginia Code Sec. 18.2-268.9 be established prior to the admission of the results of the test.”


In a special session of the legislature called in August to address Melendez-Diaz, the General Assembly attempted in House Bill 5007 to make breathalyzer accuracy a matter of maintenance for the Department of Forensic Science instead of an element of proof in the prosecution’s case.


The appellate court made note that in the case, the Fairfax County Public Defender’s Office had followed the proper procedure outlined by the state Supreme Court in Magruder v. Commonwealth by notifying the prosecution that it wanted the commonwealth to summon the preparer of the certificate for cross examination at the expense of the commonwealth.


However, the prosecution did not summon the preparer, who did not testify, and the defense objected to the certificate’s admission. The trial judge ruled that it had properly been admitted under Code Sec. 19.2-187.1, which requires that the defense subpoena the breath test operator and present him as a witness in the defense case, albeit as an adverse witness and at the prosecution’s expense.

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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