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2009 SPECIAL SESSION I

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HB 5001 Evidence, testimonial; criminal defendant right to demand testimony of preparer of certificate, etc.

Introduced by: William R. Janis | all patrons    ...    notes | add to my profiles

SUMMARY AS INTRODUCED:

Testimonial evidence; admissibility.  Provides a notice and demand procedure whereby a criminal defendant receives notice in the certificate of analysis of laboratory or breath tests of his right to demand the testimony of the person who signed the certificate.  A defendant waives his right to object to the introduction of the certificate upon the basis of the absence of the person if he does not object in writing to the attorney for the Commonwealth within 21 days of receipt of notice or at least 10 days before trial, whichever is earlier.  There is a similar procedure for introduction of affidavits attesting to failure to register as a sex offender; however, in such cases the attorney for the Commonwealth is responsible for providing notice to the defendant. 

In either case, if the defendant objects (to the introduction of a certificate of analysis or the affidavit of non-existence of the registration record), the attorney for the Commonwealth must summon the person who performed the analysis or examination or executed the affidavit. 

The new notice and demand provision in this bill does not apply to preliminary hearings.

The speedy trial statute is tolled for continuances granted if such a witness is unavailable for trial.

Information on breath-test machine accuracy is removed from the certificate of analysis and will be maintained as a record of the Department of Forensic Science.

The bill also allows persons who prepared such certificates of analysis and affidavits to testify via two-way electronic video and audio transmission upon motion of the attorney for the Commonwealth in the interest of substantial justice, for good cause shown.

The bill also requires the Department of Forensic Science to assign one forensic scientist to each locality having a population of 100,000 or more.

The bill also removes the breath test as the default test for blood alcohol determination and places both blood and breath tests on an equal footing, allowing the accused to choose.

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.


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