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Source: Kaine to call special session over Melendez-Diaz

A member of the General Assembly, speaking on condition of anonymity, told the Associated Press last night that Gov. Tim Kaine will call a special session of the legislature today to deal with the problems created by the U.S. Supreme Court case of Melendez-Diaz v. Massachusetts. In that case, the high court, citing Sixth Amendment concerns, held generally that lab technicians will need to testify in person in drunken driving cases; the defendant has the right to confront an accuser directly under the Sixth Amendment.  

One Fairfax circuit judge already has based a DUI dismissal on Melendez-Diaz, citing the commonwealth’s failure to produce the witness who conducted a BAC test on a drunken-driving defendant.

- Paul Fletcher

One comment

  1. The Melendez-Diaz case seems to deal with implied consent and certificates being entered as evidence. What about the business records exception to the hearsay rule that allows medical records from the hospital to be admitted as evidence and doesn’t require testimony or even identification of the person who drew the blood or performed the test? Should a hospital lab report be allowed as evidence without knowing who drew the blood or performed the test? Shouldn’t they have to testify? What about chain of custody? The code section (below), in my opinion, circumvents the implied consent law and without chain of custody and live testimony should be considered unconstitutional.

    Virginia Code Section 19.2-187.02. Admissibility of written reports or records of blood alcohol tests conducted in the regular course of providing emergency medical treatment.

    A. Notwithstanding any other provision of law, the written reports or records of blood alcohol tests conducted upon persons receiving medical treatment in a hospital or emergency room are admissible in evidence as a business records exception to the hearsay rule in prosecutions for any violation of § 18.2-266 (driving while intoxicated) or a substantially similar local ordinance, § 18.2-36.1 (involuntary manslaughter resulting from driving while intoxicated), § 18.2-36.2 (involuntary manslaughter resulting from boating while intoxicated), § 18.2-51.4 (maiming resulting from driving while intoxicated), § 18.2-51.5 (maiming resulting from boating while intoxicated), § 29.1-738 (boating while intoxicated), or § 46.2-341.24 (driving a commercial vehicle while intoxicated).

    B. The provisions of law pertaining to confidentiality of medical records and medical treatment shall not be applicable to reports or records of blood alcohol tests sought or admitted as evidence under the provisions of this section in prosecutions as specified in subsection A. Owners or custodians of such reports or records may disclose them, in accordance with regulations concerning patient privacy promulgated by the U.S. Department of Health and Human Services, without obtaining consent or authorization for such disclosure. No person who is involved in taking blood or conducting blood alcohol tests shall be liable for civil damages for breach of confidentiality or unauthorized release of medical records because of the evidentiary use of blood alcohol test results under this section, or as a result of that person’s testimony given pursuant to this section.

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