DUI law ruled unconstitutional
The Times Dispatch
By: Matthew Barakat
08/12/05

A Fairfax County judge has ruled that key components of Virginia's drunken-driving laws are unconstitutional, citing an obscure, decades-old U.S. Supreme Court decision that could prompt similar challenges nationwide.

Virginia's law is unconstitutional because it presumes that an individual with a blood-alcohol content of 0.08 or higher is intoxicated, denying a defendant's right to a presumption of innocence, Judge Ian O'Flaherty ruled in dismissing charges against at least two alleged drunken drivers last month.

As a district judge, O'Flaherty's rulings do not establish any formal precedent, but word of the constitutional argument is spreading quickly among the defense bar. Every state has similar presumptions about intoxication at a 0.08 blood-alcohol level, so defense lawyers across the nation are likely to make similar arguments.

"I am sure there will be lawyers out in the field making similar arguments tomorrow," Steven Oberman, chairman of the DUI defense committee at the National Association of Criminal Defense Lawyers, said in a telephone interview yesterday.

Del. David B. Albo, R-Fairfax, a defense lawyer who often practices in Fairfax, said he disagrees with O'Flaherty's ruling and sees no difference between a presumption of intoxication at 0.08 and a presumption of speeding at 80 mph.

He said he did not see any reason to change Virginia's drunken-driving laws. "So far not a single judge in Virginia has ruled the same way," he said. "It's just one judge."

Corinne Magee, a McLean defense lawyer who successfully argued the issue to O'Flaherty, said the judge's ruling is based on a 1985 U.S. Supreme Court case called Francis v. Franklin, which deals with prosecutors' obligation to prove all elements of a crime beyond a reasonable doubt.

Magee said she came across the Francis case doing research on another case and realized it might apply to Virginia's drunken-driving laws.

"Frankly, I was surprised" that the judge dismissed the case based on her constitutional arguments, Magee said yesterday. "But I think Judge O'Flaherty's ruling is based on a very solid reading of this case."

She said Virginia's law is problematic not just because of the presumption of intoxication at 0.08, but also a presumption in the law that the blood-alcohol level at the time the test is taken is equal to the level at the time of the offense, even if the test occurs hours after police make a stop. Magee said a person's blood-alcohol level can fluctuate up or down depending on when a person had their last drink and how their body metabolizes alcohol.

Prosecutors are now taking steps to avoid O'Flaherty on all drunken-driving cases, withdrawing cases assigned to him and instead obtaining indictments that send the cases directly to Circuit Court. Prosecutors cannot appeal cases dismissed by a district court judge, but could appeal if a circuit judge makes a similar ruling.

Fairfax County Commonwealth's Attorney Robert F. Horan Jr. did not return phone calls seeking comment yesterday.

Patrick O'Connor, president of the Northern Virginia chapter of Mothers Against Drunk Driving, said O'Flaherty's decision "undermines the efforts of the police and prosecutors to enforce the DUI laws, puts drunk drivers back behind the wheel and potentially denies justice to victims of drunk drivers." He has requested a meeting with the judge.

O'Flaherty, who has a reputation as a fairly tough judge among defense lawyers, turned down a request for an interview. Rulings in District Court are made orally, so there is no written ruling outlining his rationale.

Oberman said laws establishing a presumption of intoxication at 0.08 blood-alcohol level have been upheld in the past, but a new challenge like the one raised by Magee provides an opportunity to revisit the issue in a different context. He said the argument's potential effectiveness will vary from state to state based on the exact wording of the DUI laws and other factors.

Link: http://www.timesdispatch.com/servlet/Satellite? pagename=RTD/MGArticle/RTD_BasicArticle&c=MGArticle&c

What does "old and obscure" matter.  The Supreme Courts decision doesn't have to be recent or famous to be relevant.  Legislatures have to write legal laws.  Sheesh, most of them are lawyers, can't they write a law that does something simple like a drunk driving law that doesn't go against the Constitution?  If you write a law that says somebody can't be 'drunk', then you have to prove there drunk.  Which is not really hard.  Or you can have a law that says anybody who has blood alcohol more than X can't drive.  Simple.  You could even have a law that says you can't be drunk OR have blood alcohol more than X.  But you can't have a law that just says "you can't be drunk" and then arrest somebody because you ASSUME that just cuz they have a certain blood alcohol that means there "drunk".  It's just sloppy law or sloppy law enforcement.  You can call it a technicality, but that's what law is.


The term "drunk driving" does not appear in Vermont's statutes, the term is "diving under the influence"  - DUI, so drunk or sober doesn't matter.  "Influance" is defined as .08 blood alcohol content, and that is quite a bit of booze.

What a strange challenge!
Surely, all laws presume that the "law making authority" has the right to make a law.

Why not challenge a shoplifting charge with "I should be presumed innocent until the state can prove that theft is a crime"?

Of course, the actual legal limit for alcohol can be challenged and debated but the fact remains, the authorities (in the US in this case) have made a law and breaking it is considered a crime.

Jeez, some people will go to any lengths to make Gearge Bush look like a legit guy ;)

A law about under the influance makes sense.


That's what was ruled unconstitutional: Driving Under the Influence (DUI.)

I contradicted myself.  Now I think about it some more, on one hand it kinda does make sense that you have to prove somebodys actually under the influance.  Is blood alcohol a good test?  I don't know.  Does anybody know if two people have the same blood alcohol level, does there driving ability necessarily get affected the same way?  Maybe one persons driving could be affected and the other persons isn't.  But on the other hand, its probably makes sense to use a certain blood alcohol level as a cutoff.  But if somebody's alcohol is that high wouldn't they flunk the other tests anyway, like touching your nose and walking a straight line?  Don't those tests count in court?


Clearly, there are a number of factors that go in to determining the influence of a specific aount of booze on an individual, and and 50 or 100 people could all respond differently to the same amount.  In vermont, at least, upwards of 90% of DUI busts are the result of poor driving - speeding, weaving in and out of traffic, sloppy driving, accidents.  We do have the occasional sobriety checkpoints, usually on holidays, but they are well publicied in the local papers in advance, and yeild very few arrests.  So, most people who are busted are a menace on the roads here, and better they should spend the night in jail sobering up, and pay a fine than they should kill somebody - especially ME!

This is madness. Weren't we only arguing about Teddy Kennedy's drunken driving shenanigans here a little while ago, and now here we are talking about loopholes that allow drunken idiots behind the wheel?

Here in Australia, the legal limit for blood alcohol content for drivers is 0.05. For drivers on provisional licenses, it's 0.02 For professional drivers (chaffeurs, bus and truck drivers and the like) and those on learning permits, it's zero. If you got caught at 0.08 here, you'd be behind bars immediately. A presumption of innocence is part of our law too, but it's hard to presume someone innocent when they're caught red-handed breaking the law.

Regardless of your "resistance" to alcohol, it's a depressant drug that begins to affect your judgement and behaviour from the very first sip. 0.08 is a lot, and it's the same percentage regardless of whether you weigh 50lbs or 150lbs. There's no excuse for drink-driving. Like they say over here, "It's not bad luck , it's a crime".