Why Lab Techs Get Subpoeaned for Court

Did you know that you have the right to cross-examine the actual lab tech who analyzes your blood sample for a DUI / DWI or the alleged marijuana in a possession of marijuana case?

That’s right. The Sixth Amendment to the U.S. Constitution gives you the right to confront the witnesses against you. That means the arresting officer has to be there to testify, and you can also demand that any applicable lab techs come to court as well.

Apparently lots of people are exercising that right. A recent article in Virginia Lawyers Weekly said that the Department of Forensic Science received 2,144 subpoenas in the second quarter of 2012. Of those cases, the lab tech only had to appear in 208 cases and testify in just 74 cases.

The article seems a bit critical of defendants who demand the appearance of the lab tech. But it’s your constitutional right to have them there!

It does seem wasteful that 90% of the subpoenas don’t result in a technician coming to court. Why did they get subpoenaed in the first place?

Virginia law and the realities of the court system are to blame. The prosecutor has to send notice of using a lab certificate at least 28 days prior to trial. Then the defendant has only 14 days to object if you want the technician at court.

Practically speaking, it’s extremely rare to be able to talk to a prosecutor about a case 28 days before trial. It’s uncommon to even have a chat a week before trial. Usually the discussion and plea negotiations take place on the morning of court.

Thus, to preserve your right to cross-examine the witnesses against you, you almost have to blindly object even if the tech may not be necessary at court.

What’s the solution? I’m not sure. One idea would be for prosecutors to talk to defense counsel earlier. If they would discuss the case when they receive our objection to the certificate, we might be able to reach an agreement and withdraw the objection before a subpoena gets issued.

Without something like that in place, I think the techs will continue to be flooded with subpoenas.

Photo by jurvetson

Andrew Flusche

My name is Andrew Flusche. I am a traffic and misdemeanor defense lawyer in Virginia. I limit my practice to traffic tickets and misdemeanor defense, so I know the ins and outs of these offenses. I literally wrote the book on reckless driving in Virginia which you can get on Amazon here or download for free here. I opened my practice in 2008 after earning my Juris Doctor degree from the University of Virginia School of Law. Since then, I have earned over 600 5-star reviews from happy clients on Google, Yelp, and Facebook. If you’ve been charged with a misdemeanor offense in Virginia, please don’t hesitate to contact me. Your initial consultation is always free, and you'll talk directly with me about the details of your case.

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