Quote :

"DUI law ruled unconstitutional Va. presumes guilt if blood-alcohol level is 0.08, a judge says BY MATTHEW BARAKAT THE ASSOCIATED PRESS Aug 12, 2005 McLEAN -- 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. Click Here! 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. "

what you think about this??

8/12/2005 2:33:32 PM

AFAIK, Cops mostly give breathalyzers if they suspect you of being drunk (driving weird, or acting weird at a checkpoint). So, in a lot of cases, there might be good reason for the cop to suspect you of being drunk, but the .08 seals the deal. In cases though where you are just breathalyzed for the heck of it, it does make sense that merely blowing a .08 shouldn't screw you over.

[Edited on August 12, 2005 at 2:45 PM. Reason : 2]

8/12/2005 2:45:13 PM

I'm inclined to agree, because I know several people who have gotten completely screwed by the system because they blew .09, despite not showing any effects of alcohol.

However, aside from search and seizure cases, I really think that its pointless to bring up the constitution in regards to traffic stops.

8/12/2005 2:51:04 PM

Crap, I posted in the lounge thread, but this statement belongs here because you guys can actually attempt to refute it.

Quote :

""...sees no difference between a presumption of intoxication at 0.08 and a presumption of speeding at 80 mph." "

I agree. Both presumptions are not necessarily correct, since intoxication varies greatly by body type and the maximum safe speed depends on vehicle type, weather conditions, attention and driving skill. I think the fact that I've averaged 80 on the back roads my entire life without so much as a warning ticket is proof that it can be done safely as long as you pay attention and slow down in rain and blind corners.

How's that for warping a quote?

8/12/2005 2:53:31 PM

yeah i def had to post in here as well b/c the arguing would be better

8/12/2005 3:07:10 PM

personally i think it should be .1

8/12/2005 3:34:12 PM

If the law says it is illegal to drive with BAC > 0.08, and you blow 0.08+, then please explain how you can claim innocence of BAC>0.08

likewise, if the law says it is illegal to drive 65+ and you are driving 80, please explain how you can claim innocence of driving over 65mph



[Edited on August 12, 2005 at 3:44 PM. Reason : s]

8/12/2005 3:41:08 PM

Quote :

"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"

8/12/2005 3:42:23 PM

like the article says, this all hinges on how the law is written. if this sort of decision becomes common, I have no doubt that legislatures across the nation will immediately close the loophole and simply make it illegal to blow 0.08+ while driving

[Edited on August 12, 2005 at 3:47 PM. Reason : s]

8/12/2005 3:43:28 PM

Until someone comes up with a perfect system to judge intoxication, I'm fine with .08 being illegal.

8/12/2005 3:46:27 PM

i can drive fine at .08

8/12/2005 3:49:16 PM

I can drive fine well above .2

8/12/2005 3:50:00 PM

.08 is NOTHING

it should not be illegal to blow a .9 if you are ok to drive at that level.

8/12/2005 4:47:12 PM

I've always wanted to get up to a .08 one morning and go to the DMV for a driving test. Upon passing I'll say "Haha! I was drunk all along!"

It wouldn't accomplish anything, but I would feel a smug sense of self-satisfaction.

8/12/2005 4:54:42 PM

I can't say for sure whether .08 is a good number. Perhaps it should be higher. However, I think BAC should be used to judge whether further sobriety tests should be administered. It's obviously unfair to say a 300 lb, 6'5" man at .08 is intoxicated. He could drink a six pack and still not be drunk. A petite woman could be smashed at .02. I know girls who can smell a god damn drink and not be ok to drive. The number should be PART of the legal situation, not the be all end all.

8/12/2005 7:43:31 PM

^ i think he is hitting the point here. Yes, if a state's law says you can't legally blow a .08, then yes you are guilty. At the same time, is it fair to call .08 intoxicated? The BAC itself is only loosely correllated w/ intoxication. Its not causal whatsoever. But, thats not related to this decision at all :/

8/12/2005 9:07:42 PM

ummmm.... BAC should largely take into account body size and composition. BAC is BAC

i think what you meant to say is that a big guy could drink a six-pack and have a BAC of .02 whereas a small girl drinking a six-pack would have a 0.08 (except for the fact that she and he would probably actually have much higher BACs)

8/12/2005 9:08:47 PM

I think BAC test should be used in conjunction with filmed field sobriety tests to build a case against the defendant. Taking a blood sample or breath sample that could later be used to damn/exonerate the defendent through independent analysis during the trial would also help. Automatic convictions based on Breathalyzer results alone are a bad idea.

8/12/2005 10:22:33 PM

I think the bartender should decide when you're too intoxicated to drive

8/12/2005 10:25:03 PM

I wonder what blood-alcohol level the founding fathers would find to be constitutional.

8/13/2005 1:07:54 AM

i'm sure had benjamin franklin been able to

he'd have driven drunk every fucking afternoon

8/13/2005 1:09:48 AM