79571019.2-187.1Virginia Decodedhttps://vacode.org2016Criminal ProcedurePreliminary HearingProcedures for notifying accused of certificate of analysis; waiver; continuances1976, c. 245; 1979, c. 364; 2009, Sp. Sess. I, cc. 1, 4; 2010, cc. 555, 656, 800; 2011, c. 32.Magruder v. Com.070762657 S.E.2d 1132008-02-29https://www.courtlistener.com/opinion/1058523/magruder-v-com/ . . . of Code § 19.2-187.1. According to the defendants, the procedure provided in Code § 19.2-187.1 . . . <abbr title="Supreme Court of Virginia">SCV</abbr>Brooks v. Com.2195051638 S.E.2d 1312006-12-19https://www.courtlistener.com/opinion/1063127/brooks-v-com/ . . . we hold the procedure in Code §§ 19.2-187 and 19.2-187.1 adequately protects a defendant's . . . <abbr title="Court of Appeals">COA</abbr>Dunn v. Com.Record No. 0239-94-1456 S.E.2d 1351995-04-18https://www.courtlistener.com/opinion/1253164/dunn-v-com/ . . . contraband). Appellant did not avail herself of Code § 19.2-187.1, an additional statutory . . . <abbr title="Court of Appeals">COA</abbr>Cypress v. Com.070815699 S.E.2d 2062010-09-16https://www.courtlistener.com/opinion/1058151/cypress-v-com/ . . . certificate pursuant to subsection B of § 19.2-187.1. . . . <abbr title="Supreme Court of Virginia">SCV</abbr>Grant v. Com.0877084682 S.E.2d 842009-09-01https://www.courtlistener.com/opinion/1062371/grant-v-com/ . . . right under Code § 19.2-187.1, we express no opinion on whether Code § 19.2-187.1 continues to . . . <abbr title="Court of Appeals">COA</abbr>Mullins v. Com.Record No. 1705-89-3404 S.E.2d 2371991-05-28https://www.courtlistener.com/opinion/1348002/mullins-v-com/ . . . admitted into evidence in violation of Code § 19.2-187.[1] We agree. Accordingly, we reverse his . . . <abbr title="Court of Appeals">COA</abbr>Farmer v. Com.Record No. 1694-08-3687 S.E.2d 1052010-01-12https://www.courtlistener.com/opinion/1286166/farmer-v-com/ . . . trial court subpoena the analyst under Code § 19.2-187.1. The trial court, relying on Magruder v. . . . <abbr title="Court of Appeals">COA</abbr>Cindy Lynn Whitehurst v. Commonwealth of Virginia05311312014-03-11https://www.courtlistener.com/opinion/2656198/cindy-lynn-whitehurst-v-commonwealth-of-virginia/ . . . by pointing to the waiver provision of . . . <abbr title="Court of Appeals">COA</abbr>Brooks v. Com.091047712 S.E.2d 4642011-06-09https://www.courtlistener.com/opinion/1058028/brooks-v-com/ . . . quot;the procedure established in former Code § 19.2-187.1 did not adequately safeguard a criminal . . . <abbr title="Supreme Court of Virginia">SCV</abbr>Michael Tyrone Morgan v. Commonwealth of Virginia14081112012-10-23https://www.courtlistener.com/opinion/1061546/michael-tyrone-morgan-v-commonwealth-of-virginia/ . . . of the March 5, 2009 proceeding, former Code § 19.2-187.1 provided the . . . <abbr title="Court of Appeals">COA</abbr>http://law.lis.virginia.gov/vacode/19.2-187.1/19.2-187Admission into evidence of certain certificates of analysis/19.2-187/19.2-3.1Personal appearance by two-way electronic video and audio communication; standards/19.2-3.1//19.2-187.1/19.2/12/19.2-187.118.2-268.718.2-268.919.2-18719.2-188.246.2-341.26:746.2-341.26:959.1-165In 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:sectionAA1 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;sectionA1A12 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;sectionA2A22 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; andsectionA2aA2a2 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 § 18.2-270, no later than three business days following the day that the certificate and notice are provided to the accused.sectionA3A32When 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.sectionB1B11The two-way video testimony permitted by this section shall comply with the provisions of subsection B of § 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.sectionB2B21Where 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.sectionCC1Nothing 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.sectionEE1