- The Washington Times - Friday, October 28, 2005

A judge who has ruled that Virginia’s drunken-driving law is unconstitutional is misinterpreting the U.S. Supreme Court case on which his opinion is based, prosecutors argued yesterday.

A different judge heard arguments on the constitutionality of Virginia’s law, which presumes that a driver with a blood alcohol level of .08 percent or higher is intoxicated, unless the driver can prove otherwise.

Defense attorneys argued that such a presumption is unconstitutional because it infringes on the guarantees to a presumption of innocence. They cite an obscure 1985 U.S. Supreme Court ruling, Francis v. Franklin, as support for their argument.

Defense attorneys presented that argument in July to District Judge Ian M. O’Flaherty, and he agreed, dismissing two drunken-driving cases in the summer and several more this month, including drivers whose blood alcohol level has been more than twice the legal limit.

Judge O’Flaherty’s rulings do not carry precedent, and no other judge has followed his lead.

In yesterday’s hearing, prosecutor Casey Lingan said that Francis v. Franklin doesn’t apply to Virginia’s law because the case dealt specifically with jury instructions about legal presumptions, and did not apply to a statute.

“Francis v. Franklin didn’t really establish anything grandiose or new,” Mr. Lingan told Circuit Judge Robert Wooldridge.

Judge Wooldridge questioned the notion that a decades-old Supreme Court case could have such a profound implication and go essentially unnoticed all that time.

“Are you telling me that no defense attorney was smart enough in the last 25 years to come up with this?” he asked defense attorneys.

One of the defense attorneys, Todd Sanders, said that driving-while-intoxicated (DWI) laws are facing closer scrutiny now that state legislatures constantly rework the statutes to make them tougher on drunken drivers.

Another defense attorney, Corinne Magee — who was the first to successfully argue the question to Judge O’Flaherty — said that although the Francis case dealt with jury instructions, the constitutional issue of creating factual legal presumptions in favor of the prosecution remains the same.

“These mandatory presumptions significantly lighten the prosecution’s burden of proof and in fact shift the burden of proof on an essential element to the defense,” Miss Magee wrote in her legal arguments.

Prosecutors have been frustrated with Judge O’Flaherty’s rulings because prosecutors in Virginia cannot appeal when a district court judge dismisses a case on constitutional grounds.

After Judge O’Flaherty dismissed two cases in July, he agreed to let prosecutors pull six DWI cases from his docket and obtain direct indictments in Circuit Court to obtain a definitive ruling in appellate courts.

Yesterday’s hearing combined arguments on two drunken-driving cases, which were among the six that prosecutors pulled from Judge O’Flaherty’s docket.

Judge Wooldridge said he will issue a written ruling on the issue later.

Judge O’Flaherty has not explained his views in any written ruling, because District Court rulings are issued orally.

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