Interesting: DWI law unconstitutional

[Kat Kanning]

Va. Judge Says Parts of DWI Laws Illegal

By MATTHEW BARAKAT
The Associated Press
Thursday, August 11, 2005; 10:19 PM
http://www.washingtonpost.com/wp-dyn/content/article/2005/08/11/AR2005081102079.html

McLEAN, Va. -- A district judge has ruled that key components of Virginia's drunken driving laws are unconstitutional, citing a decades-old U.S. Supreme Court decision.

The state law presumes that someone with a blood alcohol content of 0.08 or higher is intoxicated, denying their right to a presumption of innocence, Judge Ian O'Flaherty ruled in dismissing charges against at least two alleged drunken drivers last month.
   

"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 Thursday.

Corinne Magee, a defense lawyer who first successfully argued the issue to O'Flaherty, said the ruling is based on a 1985 U.S. Supreme Court case that deals with prosecutors' obligation to prove all elements of a crime beyond a reasonable doubt.

Magee said Virginia's law presumes 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.

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 Thursday.

Patrick O'Connor, president of the northern Virginia chapter of Mothers Against Drunk Driving, said the decision "undermines the efforts of the police and prosecutors to enforce the DWI laws, puts drunk drivers back behind the wheel and potentially denies justice to victims of drunk drivers."

O'Flaherty declined to comment; rulings in District Court are made orally so there is no written ruling outlining his rationale.

Del. David Albo, a defense lawyer, said he sees no difference between a presumption of intoxication at 0.08 and a presumption of speeding at 80 miles per hour.

"So far not a single judge in Virginia has ruled the same way," he said. "It's just one judge."

[Lloyd Danforth]

When all of those states that chnged DWI from .10 to .08 it occured to me how silly that one could be guilty one day for something that wasn't ilegal the day before.

[lildog]

The state law presumes that someone with a blood alcohol content of 0.08 or higher is intoxicated, denying their right to a presumption of innocence, Judge Ian O'Flaherty ruled in dismissing charges against at least two alleged drunken drivers last month.

I?m not sure I follow this one? since the blood test would be the physical evidence then ipso facto wouldn?t it be the facts of the case and not a presumption?

Seems to me this is a cut and dry issue like speeding.  Either you were going over the speed limit or you weren?t, there?s no other circumstances.

[Ron Helwig]

The state law presumes that someone with a blood alcohol content of 0.08 or higher is intoxicated, denying their right to a presumption of innocence, Judge Ian O'Flaherty ruled in dismissing charges against at least two alleged drunken drivers last month.

I?m not sure I follow this one? since the blood test would be the physical evidence then ipso facto wouldn?t it be the facts of the case and not a presumption?

Seems to me this is a cut and dry issue like speeding.  Either you were going over the speed limit or you weren?t, there?s no other circumstances.

I'd guess that being over a certain blood alcohol level isn't necessarily proof that you are "intoxicated". A BAL of .08 might be bad for some but I'll bet PatK would be OK driving a bus at that :-)

[lildog]

I'd guess that being over a certain blood alcohol level isn't necessarily proof that you are "intoxicated". A BAL of .08 might be bad for some but I'll bet PatK would be OK driving a bus at that :-)

The BAL would be just as bad for either of you.. It?s the amount of alcohol that would be needed to reach that BAL that would be different.

Someone small might hit .8 after one beer while a larger person might take 3 or 4.

Trust me on this one, I lived in a fraternity house for 2 years that was walking distance to a brewery? we had the chart hanging in our kitchen showing the beer to weight ratio and what your BAL would be over an hours time.

[Pat K]

What does impared mean? At .08 do I now have the reflexes of a 60 year old?
Of some one who got only 6 hours of sleep? Of the average driver? ?


No I don't condone people driving drunk but neither do I approve of this zero tolerance hystaria.

[Russell Kanning]

We are saying is ..... does .08 make you dangerous?

Dave Mincin might normally run on .04

[lildog]

Ah good point? if you have bad reflexes to begin with vs. someone with lightening fast reflexes to begin with.  I see now what the point is that I was missing here?

Even if your abilities are ?impaired? you may not be dangerous, while on the other hand someone who is driving to the best of their ability may pose a far greater danger.

[Kat Kanning]

A person walking around with a gun might be dangerous, but it doesn't mean he has or will hurt someone.

A country possessing weapons of mass destruction might be dangerous, but that doesn't mean that they have or will attack someone.

[tracysaboe]

A person walking around with a gun might be dangerous, but it doesn't mean he has or will hurt someone.

A country possessing weapons of mass destruction might be dangerous, but that doesn't mean that they have or will attack someone.

Umm. Typically if government's have weapons though, they'll be used irresponsibly. THey don't have to pay the consequences of their actions. We, the Tax-Payers do.

Government can't be trusted with weapon's or alchohol.

Tracy

[KBCraig]

I?m not sure I follow this one? since the blood test would be the physical evidence then ipso facto wouldn?t it be the facts of the case and not a presumption?

Seems to me this is a cut and dry issue like speeding.  Either you were going over the speed limit or you weren?t, there?s no other circumstances.

When you violate the speed limit, it's inarguable that you were violating the speed limit. But violating 0.08 is not, in se, evidence of intoxication or impairment.

That's the point of this ruling: the charge is driving while impaired or intoxicated. The BAC results are used to presume guilt, even if no evidence of impairment is offered. It's possible to get a DWI conviction for someone under the legal limit, or under the influence of something other than alcohol. Usually a police officer trained as an "intoxication specialist" must test and evaluate the subject, and testify in the case. The prosecution must present other evidence, such as swerving or erratic driving, causing an accident, etc.

This was the correct ruling.

Kevin

[KBCraig]

Government can't be trusted with weapon's or alchohol.

Entirely appropriate to the topic:

"Giving money and power to government is like giving whiskey and car keys to teenage boys."
-- P.J. O'Rourke