The Virginia General Assembly passed H5007 in response to the requirements changes for admission of forensic evidence in the Melendez-Diaz case.
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.
In June 2009, in Melendez-Dias v. Massachusetts, 557 U. S. __ (2009) (No. 07–591), the Supreme Court held that certificates of forensic analysis are “testimonial” and that the Sixth Amendment does not allow a prosecutor to introduce only a lab report and not testimony from the expert who made the report. This important ruling was based on Crawford v. Washington and the constitutional right to confront witnesses.
I am waiting to see if courts will require live testimony in DUI cases where the prosecution attempts to introduce breathalyzer calibration certificates. In Massachusetts, for example, breathalyzers must be certified annually and tested periodically. This is usually proven through the introduction of a certificate from the Office of Alcohol Testing of the State Police Crime Lab. The prosecution may now be required to have the chemist who performed the calibration and testing appear in court and be subject to cross-examination.
I believe that these records do not fall within the “business record” exception to the hearsay rule because they are not maintained for police business. Instead, these records are created and maintained for the sole purpose of proving the accuracy of breathalyzer results at DUI trials.
Attorney Brian E. Simoneau
Massachusetts DUI Lawyer