The Department’s Breath Alcohol Section responds to subpoenas duces tecum (SDTs) for breath alcohol records. Additional information about requesting DFS Breath Alcohol records can be found here.
For all other SDTs for Department records:
All parties are required to serve the Department with a subpoena duces tecum (SDT) to obtain case file documentation. Please note that the Department will accept service of a SDT at any of its regional laboratories. SDT responses are generated by Department Counsel. Please note that examiners are not permitted to provide case file documentation, other than Certificates of Analysis, without management approval.
For state criminal cases, responses are provided to the Clerk’s Office so that both parties may have access to the records, as is required under Rule 3A:12(b) of the Rules of the Supreme Court of Virginia. The parties are copied on the response so that they are notified that the records are available for review at the Clerk’s Office.
Most SDTs received by the Department seek the “case file documentation,” or those records that are generated by the Department’s forensic scientists as part of their forensic analyses of evidence submitted in a case. The laboratory’s chain of custody documentation is included as part of the case file documentation. Under the Department’s Quality Manual, all pertinent communications with customers related to submitted evidence is recorded and stored within the Department’s case file or Laboratory Information Management System. These records also would be provided as part of the case file documentation.
The Department’s case file documentation may also include compact discs. So that parties may have access to this information, three duplicate copies of each disc are provided in the Department’s response to the Clerk of Court. If the discs contain sensitive electronic data, under the Commonwealth of Virginia’s IT Security Policy, the discs must be encrypted and password protected. The parties may obtain access to the encrypted disc by contacting the Department for the password. For some types of examinations, the data on these discs can be accessed by the requesting party without any specific software (e.g., Mideo data related to a latent print examination). For electronic data related to a DNA examination, however, specific computer software is required to access the data contained on the discs. The Department is not able to provide any party with a copy of licensed software.
For extensive requests, the Department may, pursuant to Virginia Code § 19.2-187.2, make the “documents available for inspection by the requesting party at the laboratory site where the analysis was performed or at the laboratory operated by the Department of Forensic Science which is closest to the court in which the case is pending.” Appointments for document inspection should be made with the individual specified in the Department’s SDT response.
The Department has previously received SDTs or court orders seeking the release of the genetic profiles of individuals from the Combined DNA Index System (CODIS). Under the DNA Identification Act, the Department is allowed to disclose stored DNA samples and DNA analyses only to criminal justice agencies for identification purposes, and to defendants who are permitted access to samples and analyses performed in connection with the case in which they are charged. Should an SDT seek the genetic profile of an individual in CODIS (other than a defendant seeking his own profile), the Department would be obligated under its Memorandum of Understanding with the FBI as an NDIS participating laboratory to object to the production of such records and seek resolution by the issuing court. Additionally, in compliance with the National DNA Index System (NDIS) Operational Procedures Manual, for SDT responses that contain eliminated candidate matches, those matches will be redacted from case file documentation.
For any questions or concerns regarding a SDT request or response, please contact Department Counsel at (804) 786-2281.