Evidence, testimonial; procedure notifying defendant of introduction of certificate of analysis. (SB5002)

Introduced By

Sen. Don McEachin (D-Richmond)


Passed Committee
Passed House
Passed Senate
Signed by Governor
Became Law


Testimonial evidence; admissibility.  Provides a notice and demand 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, or an affidavit indicating an accused's failure to register as a sex offender. The defendant may object to the certificate and demand that the person who performed the analysis or examination or the person who signed the affidavit testify. If the defendant does not do so 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 affiant.

If the defendant objects, the attorney for the Commonwealth must summon the person who performed the analysis or examination or executed the affidavit to testify in the Commonwealth's case-in-chief.  If the witness is unavailable, the court shall order a continuance, with a provision that such continuances shall not total more than 180 days nor shall any one continuance exceed 90 days. The speedy trial statute is tolled during the pendency of such continuances.

The notice and demand provision also applies to chain of custody attestations but does not apply in preliminary hearings.

Information on breath-test machine testing accuracy is removed as a component of the DUI breath certificate of analysis, and is to be maintained as a business record of the law-enforcement agency where the breath-testing equipment is located. This is intended to remove the possible testimonial quality of the calibration of the machine. 

There is also a provision that calibration or testing for accuracy of speed detection devices be maintained as a business record of the agency conducting such calibration or test.

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 SB5003


08/05/2009Prefiled and ordered printed with emergency clause; offered 08/19/09 090359273
08/05/2009Referred to Committee for Courts of Justice
08/19/2009Incorporated by Courts of Justice (SB5003-Saslaw) (12-Y 0-N)