Va. Emergency Bill Intended to Ease Burden on State Analysts in DUI Cases

By Tom Jackman
Washington Post Staff Writer
Thursday, August 20, 2009

RICHMOND, Aug. 19 -- The Virginia General Assembly voted Wednesday to drop a legal requirement that prosecutors prove that breath machines in drunken driving cases have been tested and are accurate, and lawmakers also established a timetable for defendants to challenge scientific evidence in criminal cases.

The emergency changes to state law will be effective as soon as Gov. Timothy M. Kaine (D) signs the bill.

The legislation emerged from a special session convened by Kaine to address a U.S. Supreme Court ruling in June that threw Virginia's criminal justice system into an uproar. The Supreme Court, in the landmark Melendez-Diaz v. Massachusetts case, ruled that certificates of analysis, such as drug examinations or blood alcohol tests, are subject to cross-examination under the constitutional right to confront one's accuser. Simply submitting a piece of paper was not sufficient, the court said.

Defense attorneys began demanding that the state's 43 drug examiners appear in court to testify about their analyses and that prosecutors subpoena the three technicians who calibrate all of the state's breath-testing machines as well. When the examiners or technicians couldn't appear, judges sometimes threw out the cases.

In drug cases, the state Department of Forensic Sciences said, examiners were subpoenaed 43 times in July 2008 and 925 times this July. Legislators and experts agree that the best way to resolve the problem is to hire more examiners. But money is short -- a fact underlined by Kaine's announcement Wednesday of another budget shortfall -- so legislators sought only an interim fix before the next full legislative session in January.

The Supreme Court ruled that states such as Virginia, by requiring a defendant to subpoena the prosecution's experts to challenge a paper certificate, wrongly shifted the burden of proof from the prosecution to the defense. So the General Assembly on Wednesday created a scheme in which commonwealth's attorneys must notify a defendant at least 28 days before trial that they intend to use a scientific analysis of alcohol, drugs, DNA, blood or other evidence. The defendant then has 14 days to object to prosecutors' use of an analysis without a testifying witness.

If the defense objects, prosecutors must present the analyst in court as a witness. If the defense doesn't object, the paper analysis can be introduced without live testimony.

That change shifts the burden of proof back to prosecutors to comply with Melendez-Diaz; it doesn't solve the problem of dealing with defense demands for live testimony. But requiring advance notice from the defense might enable prosecutors and the Department of Forensic Sciences to schedule witnesses more efficiently. The revised law also grants prosecutors the right to continue cases, giving them more time to get their witnesses to the courthouse.

The most time-consuming part of the special session dealt with drunken driving cases, and Virginia's requirement that prosecutors prove that breath-testing machines have been calibrated within the preceding six months. Legislators agreed to delete that requirement, making it a Forensic Sciences Department regulation instead. The change is intended to turn calibration records into "non-testimonial records," which can be presented in court without supporting testimony.

Defense lawyers may still challenge the accuracy of the breath machines, most of which now have a feature that prevents them from printing a breath-test result if they haven't been inspected for six months, state officials said. But proving that the machines are accurate will no longer be the prosecution's responsibility.

"We are eroding protections that we put in the code . . . because of Melendez," protested Sen. Kenneth W. Stolle (R-Virginia Beach). "We are shifting the statute around so [defendants] do not have the right to confront that witness."

Mark E. Rubin, counselor to Kaine, responded: "You have the ability to confront the witness. It's just that you [the defendant] have to call them."

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