Tough Times Call For Tough Representation

Photo of Gary S. Bernstein

Supreme Court Ruling in Melendez-Diaz

On Behalf of | Jun 29, 2009 | DUI |

Much has been made about Judge Scalia’s majority opinion requiring the testing technician to appear in court.  We have a “demand statute” in Maryland, where defense counsel is required to request the technician’s appearance if the State has provided the test results sufficiently in advance and advised they will not call the technician.  This procedure is still acceptable under the Supreme Court’s opinion.  It does not offend the Confrontation Clause to require an accused to exercise the right before trial.  The “demand statute” governs the timing, and does not act as an abridgment of the constitutional right.  A footnote states that the maintenance technician does not fall within the persons constitutionally required.  Because Maryland has a procedure for summonsing the State Toxicologist, his appearance may be required even absent a request.  This is an issue that has been batted around in different courts where we have sought to bring him in to testify about how the instrument is approved and then re-certified.  The nuances of these procedures may require his appearance without a subpoena, and this may be a new way to challenge the accuracy of breath testing in a DUI in Maryland.