CHAPTER 237

FORMERLY

HOUSE SUBSTITUTE NO. 1

FOR

HOUSE BILL NO. 305

AS AMENDED BY HOUSE AMENDMENT NO. I

AN ACT TO AMEND CHAPTER 43, TITLE 10 OF THE DELAWARE CODE RELATING TO CHAIN OF CUSTODY.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 43, Title 10 of the Delaware Code by adding a new subchapter to read as follows:

"Subchapter III. Chain of Custody

Section 4330. Chemical test report.

For the purpose of establishing that physical evidence in a criminal or civil proceeding constitutes a particular controlled substance defined under Chapter 47 of Title 16, a report signed by the Forensic Toxicologist or Forensic Chemist who performed the test or tests as to its nature is prima facie evidence that the material delivered was properly tested under procedures approved by Office of the Chief Medical Examiner/Forensic Sciences Laboratory, that those procedures are legally reliable, that the material was delivered by the officer or person stated in the report, and that the material was or contained the substance therein stated, without the necessity of the Forensic Toxicologist or Forensic Chemist personally appearing in court, provided the report identifies the Forensic Toxicologist or Forensic Chemist as an individual certified by the Office of the Chief Medical Examiner/Forensic Sciences Laboratory, the Delaware State Police, or any county or municipal police department employing analysts of controlled substances, as qualified under standards approved by the Office of the Chief Medical Examiner/Forensic Sciences Laboratory to analyze those substances, states that he made an analysis of the material under the procedures approved by the Chief Medical Examiner, Director of Forensic Sciences Laboratory and also states that the substance, in his or her opinion, is or contains the particular controlled substance specified. Nothing in this section precludes the right of any party to introduce any evidence supporting or contradicting the evidence contained in or the presumption raised by the report.

Section 4331. Chain of physical custody or control.

In the context of controlled dangerous substances:

(a) "Chain of custody" means:

(1) the seizing officer;

(1) the packaging officer, if the packaging officer is not also the seizing officer; and

(2) the Forensic Toxicologist or Forensic Chemist or other person who actually touched the substance and not merely the outer sealed package in which the substance was placed by the law enforcement agency before or during the analysis of the substance.

(b) "Chain of custody" does not include a person who handled the substance in any form after analysis of the substance.

(c) (1) For the purpose of establishing, in a criminal or civil proceeding, the chain of physical custody or control of evidence consisting of or containing a substance tested or analyzed to determine whether it is a controlled substance defined under Chapter 47 of Title 16, a statement signed by each successive person in the chain of custody that the person delivered it to the other person Indicated on or about the date stated is prima facie evidence that the person had custody and made the delivery as stated, without the necessity of a personal appearance In court by the person signing the statement.

(2) The statement shall contain a sufficient description of the material or its container so as to distinguish it as the particular item in question and shall state that the material was delivered in essentially the same condition as received.

(3) The statement may be placed on the same document as the report provided for in §4330 of this Title.

(4) Nothing in this section precludes the right of any party to introduce any evidence supporting or contradicting the evidence contained in or the presumption raised by the statement.

Section 4332. Presence of Forensic Toxicologist or Forensic Chemist at criminal _proceeding: availability of chemical report to defense counsel.

(a) In general. - (1) In a criminal proceeding, the prosecution shall, upon written demand of a defendant filed in the proceedings at least five days prior to the trial, require the presence of the Forensic Toxicologist or Forensic Chemist, or any person in the chain of custody as a prosecution witness.

(2) The provisions of §§4330 and 4331 of this Title concerning prima facie evidence do not apply to the testimony of that witness.

(3) The provisions of §§4330 and 4331 of this Title are applicable in a criminal proceeding only when a copy of the report or statement to be introduced is mailed, delivered, or made available to counsel for the defendant or to the defendant personally when the defendant is not represented by counsel, at least ten days prior to the introduction of the report or statement at trial.

(b) Witness for defense. - Nothing contained in this subchapter shall prevent the defendant from summoning a witness mentioned in this subchapter as a witness for the defense."

Approved May 31, 1994.