Evidence, testimonial; procedure notifying defendant of introduction of certificate of analysis. (HB5005)

Introduced By

Del. Steve Shannon (D-Vienna)


Passed Committee
Passed House
Passed Senate
Signed by Governor
Became Law


Testimonial evidence; admissibility.  Provides a procedure whereby the attorney for the Commonwealth notifies the defendant that he intends to introduce a certificate of analysis of laboratory (DNA, blood, drug, etc.) or DUI breath-test results. The same notification procedure will apply when the Commonwealth seeks to introduce an affidavit indicating an accused's failure to register as a sex offender. The defendant may object to the certificate or affidavit and require that the person who performed the analysis or examination or a custodian of the sex offender registry testify. If the defendant does not object, he waives his objection to the introduction of the certificate or affidavit and it may be offered into evidence without the appearance and testimony of the analyst or custodian.

If the defendant objects and the person who performed the analysis or examination or the custodian of the records is unavailable to testify in the Commonwealth's case-in-chief, the court shall order a continuance, provided that such continuances shall not exceed 180 days for a person who is not incarcerated and 90 days when the person is incarcerated. The speedy trial statute is tolled during such continuances. There is also a provision for a continuance if the defendant did not receive timely notice.

The notice procedure as constructed in this measure applies to criminal trials and hearings but does not apply in preliminary hearings.

Current law allowing the defendant to offer the certificate as evidence and to call such witness as his own witness, notwithstanding the notice and demand process, is explicitly set forth.

Information on breath-test machine testing accuracy is removed as a component of the DUI breath certificate of analysis. Additionally, the requirement that the equipment be tested for accuracy every six months is moved from the statute on breath-test admissibility to the statute setting forth the duties of the Department of Forensic Science. These changes are intended to remove the possible testimonial quality of the calibration of the machine. 

This bill is in response to the United States Supreme Court decision in Melendez-Diaz v. Massachusetts, 557 U.S. (June 25, 2009).

The bill has an emergency clause. Read the Bill »


08/19/2009: Merged into HB5007


08/17/2009Prefiled and ordered printed with emergency clause; offered 08/19/09 090988724
08/17/2009Referred to Committee for Courts of Justice
08/19/2009Incorporated by Courts of Justice (HB5007-Griffith)