                                 CODE OF VIRGINIA

PROCEDURES FOR NOTIFYING ACCUSED OF CERTIFICATE OF ANALYSIS; WAIVER;
CONTINUANCES (§ 19.2-187.1)

A. In any trial and in any hearing other than a preliminary hearing, in which
the attorney for the Commonwealth intends to offer a certificate of analysis
into evidence in lieu of testimony pursuant to § 19.2-187, the attorney for the
Commonwealth shall:

   1. Provide by mail, delivery, or otherwise, a copy of the certificate to
   counsel of record for the accused, or to the accused if he is proceeding pro
   se, at no charge, no later than 28 days prior to the hearing or trial;

   2. Provide simultaneously with the copy of the certificate so provided under
   subdivision 1 a notice to the accused of his right to object to having the
   certificate admitted without the person who performed the analysis or
   examination being present and testifying;
   				2a. When the attorney for the Commonwealth intends to present such
   testimony through two-way video conferencing, attach to the copy of the
   certificate provided under subdivision 1 a notice on a page separate from the
   notice in subdivision 2 specifying that the person who performed the analysis
   or examination may testify by two-way video conferencing and that the accused
   has a right to object to such two-way video testimony; and

   3. File a copy of the certificate and notice with the clerk of the court
   hearing the matter (i) on the day that the certificate and notice are provided
   to the accused or (ii) in the case of a breath test certificate for a
   violation of any offense listed in subsection E of &#xA7; 18.2-270, no later
   than three business days following the day that the certificate and notice are
   provided to the accused.

B. The accused may object in writing to admission of the certificate of
analysis, in lieu of testimony, as evidence of the facts stated therein and of
the results of the analysis or examination. Such objection shall be filed with
the court hearing the matter, with a copy to the attorney for the Commonwealth,
no more than 14 days after the certificate and notice were filed with the clerk
by the attorney for the Commonwealth or the objection shall be deemed waived. If
timely objection is made, the certificate shall not be admissible into evidence
unless (i) the testimony of the person who performed the analysis or examination
is admitted into evidence describing the facts and results of the analysis or
examination during the Commonwealth&#8217;s case-in-chief at the hearing or
trial and that person is present and subject to cross-examination by the
accused, (ii) the objection is waived by the accused or his counsel in writing
or before the court, or (iii) the parties stipulate before the court to the
admissibility of the certificate. If the accused demands, at hearing or trial,
the presence of the person who performed the analysis or examination and he is
thereafter found guilty of the charge or charges for which he demanded the
presence of such witness, $50 for expenses related to the witness&#8217;s
appearance at hearing or trial shall be charged to the accused as court costs.

B1. Except as provided in subsection D of &#xA7; 19.2-187, when the attorney for
the Commonwealth gives notice to the accused of intent to present testimony by
two-way video conferencing, the accused may object in writing to the admission
of such testimony and may file an objection as provided in subsection B. The
provisions of subsection B shall apply to such objection mutatis mutandis.

B2. The two-way video testimony permitted by this section shall comply with the
provisions of subsection B of &#xA7; 19.2-3.1. In addition, unless otherwise
agreed by the parties and the court, (i) all orders pertaining to witnesses
apply to witnesses testifying by video conferencing; (ii) upon request, all
materials read or used by the witness during his testimony shall be identified
on the video; and (iii) any witness testifying by video conferencing shall
certify at the conclusion of his testimony, under penalty of perjury, that he
did not engage in any off-camera communications with any person during his
testimony.

C. Where the person who performed the analysis and examination is not available
for hearing or trial and the attorney for the Commonwealth has used due
diligence to secure the presence of the person, the court shall order a
continuance. Any continuances ordered pursuant to this subsection shall total
not more than 90 days if the accused has been held continuously in custody and
not more than 180 days if the accused has not been held continuously in custody.

D. Any objection by counsel for the accused, or the accused if he is proceeding
pro se, to timeliness of the receipt of notice required by subsection A shall be
made before hearing or trial upon his receipt of actual notice unless the
accused did not receive actual notice prior to hearing or trial. A showing by
the Commonwealth that the notice was mailed, delivered, or otherwise provided in
compliance with the time requirements of this section shall constitute prima
facie evidence that the notice was timely received by the accused. If the court
finds upon the accused&#8217;s objection made pursuant to this subsection, that
he did not receive timely notice pursuant to subsection A, the accused&#8217;s
objection shall not be deemed waived and if the objection is made prior to
hearing or trial, a continuance shall be ordered if requested by either party.
Any continuance ordered pursuant to this subsection shall be subject to the time
limitations set forth in subsection C.

E. Nothing in this section shall prohibit the admissibility of a certificate of
analysis when the person who performed the analysis and examination testifies at
trial or the hearing concerning the facts stated therein and of the results of
the analysis or examination.

F. The accused in any hearing or trial in which a certificate of analysis is
offered into evidence shall have the right to call the person performing such
analysis or examination or involved in the chain of custody as a witness
therein, and examine him in the same manner as if he had been called as an
adverse witness. Such witness shall be summoned and appear at the cost of the
Commonwealth; however, if the accused calls the person performing such analysis
or examination as a witness and is found guilty of the charge or charges for
which such witness is summoned, $50 for expenses related to that witness&#8217;s
appearance at hearing or trial shall be charged to the accused as court costs.

G. Nothing in this section shall be construed as requiring a locality to
purchase a two-way electronic video and audio communication system. Any decision
to purchase such a system is at the discretion of the locality.

HISTORY: 1976, c. 245; 1979, c. 364; 2009, Sp. Sess. I, cc. 1, 4; 2010, cc. 555,
656, 800; 2011, c. 32; 2017, c. 669.