If you’re charged with DWI / DUI in Virginia, you may get an odd form given to you at court or mailed to you by the prosecutor. If you don’t have an attorney yet, you’re probably scratching your head about it. Let me explain what the form means.
What does it look like?
But before we get to the explanation, what form am I talking about?
Unfortunately, there’s no standard format. It will likely say “Notice” as a title, and it will reference Virginia Code 19.2-187.1. The form will have a bunch of cryptic legalese about a certificate of analysis, objecting to it, etc.
Here are two examples that are used by Commonwealth’s Attorneys offices around Fredericksburg:
Both of these forms are saying the same thing, legally speaking.
What is 19.2-187.1?
This form is referred to as the Melendez-Diaz Notice. Basically, the statute was crafted as a result of the Melendez-Diaz v. Massachusetts decision from the U.S. Supreme Court.
The whole point of 19.2-187.1 is that the Commonwealth has to give you notice when they want to use a piece of paper as evidence against you, instead of bringing in the person who prepared the paper. There are exceptions and subtleties to the rule, but that’s the gist.
In a Virginia DUI / DWI case, the piece of paper is usually the Certificate of Blood Alcohol Analysis. The Notice you received is saying that the Commonwealth is going to use the breath certificate against you at court.
The statute (19.2-187.1) says that if you don’t object in writing to the Commonwealth’s Notice within 14 calendar days, you waive your right to have the actual person at court.
What should you do?
Good question. Unfortunately, this is a case-specific issue. In some cases, there’s really no reason to require the actual person to come to court. But in other cases, there could be a significant issue to argue in person.
To determine if you should object to the Commonwealth’s Notice, I recommend consulting with a local attorney.
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