Drug and DWI Cases Blown Wide Open?

Brent Finnegan -- July 23rd, 2009

A recent Supreme Court precedent is “tying the hands of prosecutors,” according to Del. Todd Gilbert, and could be letting defendants charged with certain drug or alcohol-related offenses off the hook. Last week a judge in Fairfax threw out a DWI case based on the Melendez-Diaz v. Massachusetts ruling, which allows defense attorneys in drug and alcohol cases to cross-examine the lab technician who conducted the drug or alcohol test.

This is an even bigger deal in drug cases, because the closest drug testing lab is in Roanoke. And there are only 160 lab techs in the entire state.

In today’s DNR, Valley Republican lawmakers reacted to the ruling. Del. Matt Lohr called the implementation of the ruling a technicality. Del. Gilbert has drafted a proposal that he says will fix the problem for prosecutors by “reinstat[ing] reliance on the test reports.” But Gene Hart, who is challenging Lohr for his seat in the 26th district, had a different take:

The pressure to have a lab technician in court, Hart said, could also lead the state to expand alternative courts that stress drug treatment.

Gov. Tim Kaine has already set a date (August 19) for a special session so General Assembly can address the issue.

16 Responses to “Drug and DWI Cases Blown Wide Open?”

  1. cook says:

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; TO BE CONFRONTED WITH THE WITNESSES AGAINST HIM; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

  2. Here’s another interesting take on the ruling.

  3. Brent Finnegan says:

    I wish there was more to that quote from Lohr. It really reads like he called the SCOTUS ruling a technicality. I wonder if that’s what he really meant.

  4. seth says:

    very diplomatic of you mr. finnegan.

  5. Jamie Smith says:

    I’d rather talk about Judge Lame letting three felony sex offender out of jail on $5,000 bond! What a miscarriage of justice!

  6. JGFitzgerald says:

    People on Lohr’s side of the aisle have used the word “technicality” to refer to Fourth Amendment rights for so long that they think that’s what the word means. An innocent mistake.

  7. One idea that I like is allowing lab techs to testify via videoconference.

  8. cook says:

    Good thought, Jeremy, but it is possible that a statute permitting closed circuit testimony in these cases would not satisfy the Confrontation Clause. See Maryland v. Craig, 497 U.S. 836.

  9. Dave Briggman says:

    So Aaron,

    How would Melendez affect a summary contempt case appeal when one is found to be in summary criminal contempt in a JDR or District Court…the only thing that comes upon on an appeal is a written statement from the District Court judge. One certainly cross exam such a written statement and the judges are immune from being subpoenaed.

  10. Dave Briggman says:

    And Jeremy, Matt Lohr couldn’t use logically reasoning to think his way out of a paper bag…he explained his vote on an illegal, retroactive provision contained within another piece of legislation as “because he wasn’t an attorney, he didn’t understand [but voted for it anyhow] the legislation.

    Yet ANOTHER reason why if a Delegate can’t understand the ramifications he’s voting on, he shouldn’t be a Delegate.

  11. Dave Briggman says:

    And in my post directed to Aaron (and anyone else who chimes in), it should have stated:

    “One certainly cannot cross examine such a written statement”…

  12. cook says:

    Interesting legal question, Dave. Scalia in his Confrontation Clause decision likes to look back to the time of the writing of the 6th Amendment to determine the scope of the right to be confronted. The question for Scalia and the Crawford/Melendez majority, I think, would be: How was summary contempt handled in 1789? or, perhaps, what limitations if any were placed on the testimony of judges at that time?

  13. Gene Hart says:

    Right off, I note that Mr. Mellott spent a considerable amount of time yesterday allowing me to speak with him on this area of criminal law/procedure. I want to thank him for taking the time to try to understand what can be a fairly arcane area of the law as viewed by laypersons. So, Jeff certainly deserves thanks for making the effort to inform and educate the public in his article. That said, I expect the limitations of space and time may not have allowed the nuances of those quoted to fully come through in the DNR article.

    For example, I would expect that Delegate Gilbert understands that it is not the role of the Supreme Court of the United States to enforce constitutional safeguards only when to do so would not unduly inconvenience the government. After all, I expect that the accepted requirements of the 4th, 5th and 8th Amendments (not just the 6th) also sometimes tie the hands of the government in criminal prosecutions. Not to mention that pesky “proof beyond a reasonable doubt” requirement; how many more could we convict if we just lowered the standard to a preponderance of evidence? I also expect that Delegate Lohr understands that the 6th Amendment right of confrontation is not a “technicality” to be discarded as readily as the D.C. City Council might wish to discard that archaic right to keep and bear arms. Surely, the subtleties of their remarks just didn’t come through in the article.

  14. Gene Hart says:

    The proposed revisions to the Virginia Code to create a constitutionally permissible “notice and demand” statutory scheme are useful and necessary. However, the statutory revision does not resolve all of the issues raised by the Melendez-Diaz case. As I discussed with Mr. Mellott, it is likely that the new statutory scheme will result in a standard of practice for defense attorneys to demand that the government present its case by necessary live testimony rather than regularly agreeing to the admission of a paper certificate of analysis. If that is the case, how can and will the state respond to the difficulties posed by Melendez-Diaz?

    First, DUIs are easier to address than other (primarily drug) cases. Locally, many of the charging officers are trained to use the testing equipment and will as a matter of course be present to testify regarding the admission of test results. When a tester is not the charging officer, that testing officer is still from the prosecuting locality (i.e., the city of Harrisonburg or Rockingham County in our case) and it should be no more than a minor inconvenience to subpoena that person for trial. An inconvenience to that officer, certainly (but of a kind with the inconvenience to that of all other witnesses that are not law enforcement) but doable.

    The difficulty comes when we try to make more efficient the prosecution of drug offenses that require evidence that is sent off for testing to the labs of the Division of Forensic Sciences. There simply are not enough lab technicians/scientists to go around to all the courts they would need to be in each day. How to solve this issue? Some thoughts, none of which are suggestions at this point but offered to show the importance of the discussion that needs to take place in Richmond.

    1. Hire more lab techs. Lots more. Unfortunately, very costly.

    2. Have lab techs testify by video conference. But, may not satisfy the Confrontation Clause; cannot be used in many (most?) of our courts without reconfiguring/rewiring/additional equipment; still may not be enough lab techs to go around since you can’t readily schedule testimony in too many courts each day.

    3. Expand the use of “drug courts” and other alternative programs. These typically require a defendant who wishes to enroll to make an early decision to give up his trial rights/protections in order to gain the benefit of the alternative placement. This could pull many away from the path where Melendez-Diaz is implicated.

    4. Accept that some defendants will “benefit” from the new decision so that the government can focus its resources on those it thinks are most (in this case, least) deserving. Some defendant may get offered a 18 month sentence rather than a 36 month sentence if he pleads guilty without forcing the prosecution to subpoena a lab tech. For those that you want to give additional time, the lab tech gets called to court. I note that this type of dealing happens every day in our courts already but it will increase after Melendez-Diaz. Also, the federal system institutionalizes and offers decreased potential sentences for defendants who plead guilty well in advance of trial before the government has to expend considerable resources (known in the business as “acceptance of responsibility”). That idea could also be implemented in our state voluntary sentencing guidelines.

    So, some ideas for discussion by our legislators and for continued consideration by us would-be legislators. Sorry for taking so long and so much space!

  15. Lowell Fulk says:

    I appreciate you and Cook weighing in with analysis and explanation.

  16. David Miller says:

    Its nice to hear you all weigh in. My headache thanks you. I might propose that the referenced tweet was more relevant now than ever with our national resources as tight as they are. My inner conservative (which rarely gets a chance at the podium) demands a broach of this subject.

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