2.6 Evidence

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2020 Ed.)

2.6 EVIDENCE

2.601 Generally. Section 19.2-183 of the Virginia Code presents a brief overview of the preliminary hearing process. Virginia has formally adopted a comprehensive set of evidence rules ¹⁶¹ that apply to all proceedings and are based on proposed rules drafted by the Boyd-Graves Committee of the Virginia Bar Association. In the area of serious traffic offenses, the statutes themselves also give some guidance on certain evidentiary issues. Kent Sinclair's The Law of Evidence in Virginia ¹⁶² is also an instructive, practical, and detailed treatise on the subject. Virginia Code section 19.2-266.2 provides for the procedures for defense objections and requests for bills of particulars in both district and circuit courts. ¹⁶³

2.602 DUI and License Suspension Cases. The admission of breath or blood test results does not limit the defendant's right to introduce other relevant evidence regarding his or her condition when the driving occurred. ¹⁶⁴ A blood test result showing that drugs other than alcohol or the

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drugs specifically listed in section 18.2-266 were present in the defendant's system will only be admitted if other competent evidence can be presented that relates the level of drugs found to the impairment of the defendant's ability to drive safely. Section 18.2-268.10(B) of the Virginia Code prohibits comment by the Commonwealth on the defendant's refusal to take an offered test or the fact that a test was not offered except in rebuttal to issues raised by the defendant during his or her case in chief. The defendant or the Commonwealth may introduce evidence of a finding of refusal pursuant to section 18.2-268.3, but only to explain the absence of the test results and not as evidence of the defendant's guilt. ¹⁶⁵

Unless the arrest of the driver occurs within three hours of the alleged offense, the implied consent statute does not apply. ¹⁶⁶ For commercial drivers, the arrest must also occur within three hours of the offense for the requirements of the implied consent law to apply. ¹⁶⁷ If the arrest is timely, the test is required and can be given at any time. But from the defense practitioner's standpoint, the more time that elapses between the arrest and the test, the less relevant the test results will be to the defendant's condition at the time that the driving occurred.

When the charge does not involve a certificate of analysis, the court determines innocence or guilt from all the evidence concerning the defendant's condition at the time of the alleged offense. In cases where a certificate of analysis is admitted, it is worthwhile to remember that the statutory presumptions of intoxication in section 18.2-269 of the Virginia Code and the mandatory minimum sentences in section 18.2-270 are governed by the blood alcohol content (BAC) at the time the certificate was generated, not by the BAC at the time of the offense. ¹⁶⁸ Therefore, counsel should, to the extent possible, attack the veracity of the test result during the case in chief so that the defendant is able to argue at sentencing that the test result was not accurate enough to establish beyond a reasonable doubt the defendant's BAC at the time the vehicle was being driven or operated.

Prosecutions of commercial drivers for DUI under section 46.2-341.24 are governed by section 46.2-341.26:10, which is very similar to section 18.2-268.10 for noncommercial drivers.

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2.603 Calibrations of Speed-Measuring Equipment.

A. Police Equipment. Data from any of the approved speedmeasuring devices are required by statute to be accepted as prima facie evidence of a vehicle's speed in any court or legal proceeding. ¹⁶⁹ Calibrations or testing of any device that was used to measure speed, including the officer's vehicle speedometer, must have occurred within six months of the offense. ¹⁷⁰ Local police chiefs and sheriffs are required to ensure that the equipment being used by their departments "meets or exceeds" the standards established by the Division of Purchases and Supply. Counsel may want to inquire whether the equipment being used is on a Division-approved list, as this appears to be part of the evidence that can be required. ¹⁷¹

According to section 46.2-882 of the Virginia Code, if "any question arises" at trial about the calibration or accuracy of any laser speed determination device, radar, microcomputer device, or photo speed monitoring device, a calibration certificate can be introduced in evidence to prove that the equipment had been tested and was working properly. Calibration certificates are used to validate the accuracy of (i) the speedometer of any vehicle, (ii) any tuning fork employed in calibrating or testing the radar or other speed determination device, or (iii) any other method employed to calibrate or test any laser speed determination device or photo monitoring device. The certificate must state when and by whom the calibration was made. Except for photo speed monitoring devices, a calibration certificate is admissible as evidence of the facts contained in the certificate as long as the calibration was performed within six months of the date that the vehicle's speed was measured. The calibrations or testing of a photo speed monitoring device is valid for twelve months. ¹⁷² A true copy of the certificate is admissible to the same extent as the original. ¹⁷³

Section 46.2-882 raises two important questions. First, what must a defendant do to make a "question arise" about the accuracy of the speedmeasuring device? Courts are likely to differ upon the answer, as there is a

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lack of authority on this subject. In some instances, it may be enough simply to enter a plea of not guilty, which will implicitly question the speed-measuring device's accuracy, or counsel may question the officer about the accuracy of the device on cross-examination.

The second ambiguity is whether the prosecution must admit the calibration to lay an evidentiary foundation for the accuracy of the equipment before the officer testifies about the speed, or only after a question arises, or not at all. Read plainly, section 46.2-882 indicates that the officer need not establish any foundation to testify as to speed and that the calibration certificate is prima facie evidence of a device's accuracy only if accuracy is questioned. This implies that if accuracy is questioned, and no certificate of accuracy is introduced in evidence, the court may assign whatever weight it chooses to the officer's testimony regarding speed and may consider other evidence to assess the appropriate weight of the evidence.

In many cases, the Commonwealth will attempt to prove the accused was speeding by introducing testimony that the police officer "paced" the defendant by following him or her for a period of time at the same speed. The officer will then be asked to state what speed his or her speedometer read during the pace. In these cases, the admissibility of the officer's testimony about the speed of his or her cruiser during the pace is controlled not by section 46.2-882 but by section 46.2-942, which directs the trial court to receive as evidence a sworn report of the results of a calibration test of the speedometer in the defendant's or the arresting officer's motor vehicle. In contrast to section 46.2-882, section 46.2-942 contains no explicit provision for the use of a true copy of the calibration certification by the prosecution. Read in pari materia, this implies that only the original speedometer calibration certificate is admissible at trial.

The United States Supreme Court's decision in Melendez-Diaz v. Massachusetts ¹⁷⁴ and the Virginia Court of Appeals' subsequent decision in Grant v. Commonwealth ¹⁷⁵ demanded a reassessment of whether a certificate of accuracy is considered testimonial hearsay subject to the Sixth Amendment's Confrontation Clause. Cases predating the existence of the certificates held that the testimony of the calibrating officer was necessary to establish the foundation for the admission of the results. ¹⁷⁶ When certificates were

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created, the law provided that that the certificate itself was a sufficient foundation to admit the results of speed-measuring devices because, as the Virginia Supreme Court acknowledged, the purpose of permitting certificates was to "obviate the necessity of having two troopers testify in every contested speeding case" just to lay a foundation for admissibility of the result. ¹⁷⁷

But, following Melendez-Diaz, the Virginia Court of Appeals held in Grant v. Commonwealth that "once the General Assembly conditions the validity and admissibility of the breath test on proof of those facts, the Commonwealth must prove those facts through live, in-court testimony and not by affidavit." ¹⁷⁸

It remains an open question in Virginia whether Melendez-Diaz and Grant also apply to an attempt by the Commonwealth to use a certificate of accuracy as the foundation to establish the truth of the calibration results contained therein. The primary distinction cited to justify admission of these certificates in speeding cases is that the attestations in Melendez-Diaz and Grant were accusatory toward a single defendant, whereas the attestations on LIDAR, RADAR, and speedometer calibrations are not directed at any particular accused because they are generated before the equipment is used to accuse anyone at all. The majority in Melendez-Diaz wrote extensively to rebut that argument, indicating that the distinction is irrelevant because any out-of-court affidavit used to prove a fact in the Commonwealth's case is ultimately testimonial hearsay. More recently, in Williams v. Illinois, ¹⁷⁹ five Justices of the United States...