Interesting series of reports in the Chesterfield Observer on Virginia drunk driving arrests, the court process, penalties, legal strategies used by prosectutors and defense attorneys, and the implications of the Melendez-Diaz decision.
The law formalizes a Notice and Demand process for admission of forensic and chemical evidence in drug and DUI cases where a technician would be required to testify in support of documentary evidence.
The prosecuting Commonwealth’s Attorney notifies the defense of it’s intent to use forensice evidence without supporting expert testimony. If the defendant objects, it must do so formally in court. As a result, extra time will be allowed for scheduling the court appearance of the expert needed in the case.
WTKR in Norfolk Hampton reports on Virginia Beach Commonwealth’s Attorney Harvey Bryant, and his believe that a majority of the US Supreme Court “doesn’t really know what they’re talking about.”
Prosecutors across Virginia are dealing with the aftermath of the Melendez-Diaz case, which stated that forensic expert witness testimony must be provided to support documentary evidence in cases where that evidence is used in prosecutions. The Justices determined that the Constitutional right to “confront one’s accuser” is more important than the adminstrative hassles of prosecuters who would prefer to enter a document into evidence unchallenged, as has been allowed up until this ruling.
According to WTKR 10% of all DUI cases in Virginia are in Virginia Beach, and there are only 3 people in Virginia that calibrate breath test machines, the kind of forensic evidence witnesses now being sought by defense lawyers, to challenge these cases.
It is certainly likely that Virginia DUI defense lawyers are only asking for these witnesses in most cases, because they know the Commonwealth will have a tough time rounding up these experts, and they can argue for a dismissal or a reduced sentence in a plea-bargain. According to this report, that’s already happened in a number of Virginia Beach DUI cases.
But there is a good chance that this is only a temporary tactical advantage for the defense. As soon as Virginia fixes this imbalance and is able to provide the witnesses, in most situations, drunk driving defense lawyers won’t bother in cases where the witness is unlikely to provide any reasonable doubt that would help the defendent.
Constitutionally guaranteed rights are inconveneint for the state by design. The easiest thing for the state would be for police to arrest people and sentence them to jail time on the spot. But no one thinks that is a good idea.
The principle of innocent until proven guilty is paramount under the law. And the balance of power has been shifting to the prosecution for decades. This is one small win for the rights of the accused.
Just because it is a hassle for prosecutors is no reason to argue against the rights and freedoms of our citizens as envisioned by our founding fathers.
If you are accused of a DUI in Virginia Beach or anywhere in Virginia, please contact us for a free consultation on your charges, and what we can do to fight them in court.
An Update on the Previous Melendez-Diaz post:
Forensics blogger Harold Levy notes an interesting comment buried in the News Record article. One delegate suggested that this decision will create some better deals for defendants, and may result in increased use of alternate court dispositions that stress treatment.
Drug courts and DUI courts are alternative sentencing arrangements that can give a first time offender a chance to have a case dismissed after a year. If he or she completes a strict drug or alcohol treatment program, and passes mandatory drug tests or abstains from alcohol, the charged are dropped.
Currently Drug Courts in Virginia are still being used on a largely limited basis. A list of drug courts is here. Currently there is only one DUI court in Virginia, in Fredericksburg. Not all courts have drug court alternatives as an option, and not all prosecutors and judges will go along with it in every eligible case, even if it is available.
And there are downsides to accepting a drug or DUI court disposition. If you fail to complete the program, you are subject to retrial in court, and will likely face much stricter penalties than if you simply plead guilty the first time through.
But for those who complete the program, it is often a very good deal from a criminal defense perspective. And it is a good opportunity to get help with an addition problem. The research on drug courts has shown a lot of success.
It would be a shame if it took prosecutors backed into a corner to increase the use of these well-documented successful programs, that reduce recidivism, decrease the need for costly imprisonment, and truly help Virginia citizens fix their addiction problems and their lives.
A recent US Supreme Court decision on rules of evidence is a win for defense attorneys, and is causing administrative hassles for prosecutors across the Commonwealth.
In Melendez-Dias v. Massachusetts, the court ruled that forensic evidence reports, such as those identifying controlled substances in drug possession cases, or certifying Breathalyzer machines in DUI cases, are insufficient evidence on their own. The court determined that this evidence violated what is known as the “confrontation clause“, also known as the right to confront one’s accuser in court.
The net result of this decision is that prosecutors must have forensic analysts on hand to support this evidence, and the defense attorney will have an opportunity to cross examine the witnesses. The practical implication of this is that the Commonwealth only has a small number of experts available to testify in court, and there are thousands of potential cases per year where this documentation evidence has been used previously.
Virginia State Legislators Scramble to Adjust to the Reality of Melendez-Diaz
As noted in the Daily News Record and many other Virginia newspapers, the Melendez-Diaz decision is driving a special session of the Virginia General Assembly on Aug 19 to address the issue. Legislators are concerned that if they don’t have an answer quickly, judges many have to dismiss many drunk driving and drug possession, if the prosecutors aren’t able to provide the necessary witnesses.
Governor Kaine has stated that the situation may be able to be addressed administratively, without new legislation necessary. Commonwealth’s Attorneys will have to first file notice of intent to use the documentation without the required witnesses. Presumably many defense attorneys will object, but that legal process will probably buy them time to arrange and schedule the expert witnesses.
The Commonwealth will likely need to provide emergency funding for additional forensics experts to testify in courts across the state. This will probably be the product of the special legislative session.
And if you are an unemployed forensics expert, stay by your phone.