No more trial by affidavit in Virginia drunk driving cases

US Supreme Court Justice Scalia's proclamation in the Melendez-Diaz case that no longer was trial by affidavit acceptable in a criminal case was used in a Northern Virginia courtroom to keep a breath test certificate from being admitted into evidence in a DWI trial.

Virginia criminal defense attorney David Bernhard was successful in his argument in a Fairfax County court that allowing the state to introduce a breath test certificate into evidence without producing the officer who performed the breath test violated a defendant's right to confront the witnesses against him.

Fairfax county prosecutors now face the daunting task of figuring out how to arrange for a small number of breath test operators to be available to testify in the 4,000 or so DWI cases filed in that county.

"It's Christmas in July for criminal lawyers who defend drunk drivers." -- Raymond F. Morrogh, Fairfax Commonwealth Attorney (prosecutor).

The handwringing from Virginia prosecutors and Governor Timothy Kaine serves as an example of how residents of Texas are often afforded greater protection under the state consitution than under the U.S. Constitution. In Texas criminal defendants have long had the right to cross examine the breath test operator in a drunk driving trial.

Maybe rulings like this one will convince prosecutors to think twice before trying marginal cases.