- The Washington Times - Thursday, August 11, 2005

A Fairfax [Va.] 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 suspected drunken drivers last month.

As a district judge, 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.

Corinne Magee, a McLean defense lawyer who first successfully argued the issue to Judge O’Flaherty, said Judge O’Flaherty’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.

Miss 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, Miss 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 only because of the presumption of intoxication at 0.08, but also because a presumption in the law makes the blood-alcohol level at the time the test is taken equal to the level at the time of the offense, even if the test occurs hours after police make a stop. Miss Magee said a person’s blood alcohol level can fluctuate depending on when a person had their last drink and how their body metabolizes alcohol.

Prosecutors are now taking steps to avoid Judge O’Flaherty on all drunken-driving cases by 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 they 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 he was not aware of any other Virginia judges who have reached a similar conclusion.

Judge O’Flaherty’s 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,” said Mr. O’Connor, who has requested a meeting with Judge O’Flaherty.

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.

Mr. 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 Ms. 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 DWI laws and other factors.

Delegate David Albo, Fairfax County Republican and a practicing defense attorney, said he disagrees with Judge 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.”

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