“Although there are additional concerns that will need to be addressed by the legislature in the 2010 legislative session in January,” Kaine said in a statement last week, “the measures approved today ensure some key challenges initially presented by the court decision have been resolved.”
This all stems from the high court’s landmark 5-4 decision in June in the case of Melendez-Diaz vs. Massachusetts. In their ruling, justices said that forensic experts must appear in court when results of drunk driving and drug tests are presented as evidence. The basis of the court's decision was the U.S. Constitution’s Sixth Amendment, which states that defendants have a right to face those testifying against them.
Prior to this ruling, paperwork showing proof that lab tests were performed or that a breathalyzer was properly calibrated sufficed in most cases.
With Virginia’s forensic expert ranks already thin, the decision sent waves of concerns across the state’s legal circles about the possibility of some cases being thrown out due to lack of expert testimony.
In Loudoun, the ruling had an immediate impact as several cases were delayed to give prosecutors additional time to locate forensic experts to appear in court, said Loudoun’s Commonwealth’s Attorney Jim Plowman in July.
To address the court’s ruling, Kaine called a special session of the General Session for Aug. 19.
The new law hash out in Richmond states that prosecutors must notify defendants ahead of time that they intend introduce lab results as proof of drug or DUI testing. The defense, though, can object to this and request that a forensic scientist also appear in court. If no objection is made, the defendant waives his or her right to having a scientist testify.
Also, if a forensic scientist cannot make it court when summoned, the legislation allows for trials to be continued for up to 180 days if the defendant is not in jail and 90 days if the defendant is incarcerated.
Regarding experts being called to testify on the calibration of breath-test machines, lawmakers addressed this by removing breathalyzer accuracy as a component of a DUI certificate of analysis.
"Across the Commonwealth, drunk drivers were getting off scott free,” State Sen. Ken Cuccinelli (R-Fairfax), one of the architects of the legislation and candidate for Virginia Attorney General, said in a statement. “This was a public safety issue, and we were able to address it with today's legislation."
What this bill and Cuccinelli failed to do was address the real issue related to this topic which is the incredible burden this puts on the forensic scientists. There simply aren't enough of them to testify everyday in court and do the lab work necessary to convict these drunk drivers. All this did was kick the can down the road.