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No Timely Objection Defeats Melendez-Diaz Appeal

The Court of Appeals affirms defendant’s third offense DUI conviction following a bench trial at which defendant failed to object to the admissibility of her blood alcohol analysis until sentencing.

Defendant flipped and rolled her car four times in a single car crash on a sharp curve in early 2008. Defendant rebuked witnesses for calling 911 and was combative with rescue personnel. Her BAC was 0.13 on admission to the hospital.

The trial court admitted evidence of defendant’s BAC without any objection from defendant’s counsel. A hospital record keeper and forensic toxicologist testified at trial about the procedures followed. At sentencing, defendant’s counsel objected to the admissibility of her BAC under Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), because she did not have an opportunity to cross-examine either the person who withdrew the blood or performed the analysis.

We affirm the trial court’s rejection of defendant’s confrontation clause objection. We will not sua sponte apply the good cause or ends of justice exception to Supreme Court Rule 5A:18 that requires timely objections before the trial court rules on an issue. Defendant at trial did not object to the admissibility of her BAC, but instead attacked its weight. Stevens v. Commonwealth, 46 Va. App. 234 (2005), holds that once scientific evidence is admitted, credibility and weight are the province of the finder of fact. The trial did not abuse its discretion finding defendant guilty. Defendant waived her confrontation clause argument by failing to object to the admissibility of her BAC results.

Barlow v. Commonwealth (Frank) No. 0001-10-1, April 5, 2011, Chesapeake Cr.Ct. (Kushner) David L. Oblon for appellant, Josephine F. Whalen, AAG. VLW 011-7-124(UP), 6 pp.

VLW 011-7-124

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