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Melendez-Diaz cited in reversal

The Virginia Court of Appeals relies on Melendez-Diaz v. Massachusetts today in reversing a drunken driving conviction.

The case, Grant v. Commonwealth, is the first state appellate decision since the U.S. Supreme Court decided Melendez-Diaz in late June. Grant was pending when Melendez-Diaz was decided, and the Court of Appeals asked for supplemental briefs in light of the case.

The Court of Appeals panel found that state law makes testimonial the certificate submitted by the person administering a breath test, even though “there is no constitutional requirement that the factual predicates in Virginia Code Sec.18.2-268.9 be established prior to the admission of the results of the test.”

In a special session of the legislature called last month to address Melendez-Diaz, the General Assembly attempted in House Bill 5007 to make accuracy of the breathalyzer a matter of maintenance for the Department of Forensic Science rather than an element of proof in the prosecution’s case.

The Court of Appeals noted that the Fairfax County Public Defender’s Office had followed the procedure set out by the Supreme Court of Virginia in Magruder v. Commonwealth by notifying the prosecution that it wanted the commonwealth to summon the preparer of the certificate for cross examination at the commonwealth’s expense.

The preparer was not summoned and did not testify, and the defense attorney objected to the admission of the certificate. The trial judge held it was properly admitted under Code Sec. 19.2-187.1, which requires the defense to subpoena the breath test operator and present him as a witness in the defense case, albeit as an adverse witness and at the expense of the prosecution.

By Alan Cooper

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