Posted on 08/12/2005 11:36:01 AM PDT by Rodney King
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.
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....
(Excerpt) Read more at timesdispatch.com ...
Thank you, Rodney. Great work on your part on this thread as well.
Wrong. See post #93, others.
The last time I looked, Black's Law Dictionary was not codified into the constitution. Perhaps I missed the constitutinal convention. Was it on TV?
If you want to explore the constitutional ramifications of current DWI laws, start with the following amendments: 4,5,14.
Oh yeah, the pneumbras. How could I forget?
Here's some light reading for Friday night. My comment was directed at what the legislatures will do to rectify the situation. We are already experiencing it here in Connecticut. You cut a deal for the Alcohol Education Program thinking you beat the system and then get the notice from DMV to appear for the licensing suspension.
The History of the Presumption of Innocence
It is better than 5, 10, 20, or 100 guilty men go free than for one innocent man to be put to death. This prinicple is embodied in the presumption of innocence. In 1895, the U.S. Supreme Court, in a decision in the case Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394, traced the presumption of innocence, past England, Ancient Greece and Ancient Rome, and, at least according to Greenleaf, to Deuteronomy. [also, Alexander Volokh wrote a law review article on the issue, available free here.]
The Coffin case stands for the proposition that at the request of a defendant, a court must not only instruct on the prosecution's burden of proof--that a defendant cannot be convicted unless the government has proven his guilt beyond a reasonable doubt--but also must instruct on the presumption of innocence--by informing the jury that a defendant is presumed innocent. The Court stated,
The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.
In tracing the presumption of innocence, the Court goes on to state:
It is stated as unquestioned in the text-books, and has been referred to as a matter of course in the decisions of this court and in the courts of the several States. See Taylor on Evidence, vol. 1, c. 5, 126, 127; Wills on Circumstantial Evidence, c. 5, 91; Best on Presumptions, part 2, c. 1, 63, 64; c. 3, 31-58; Greenleaf on Evidence, part 5, § § 29, &c.; 11 Criminal Law Magazine, 3; Wharton on Evidence, § 1244; Phillips on Evidence, Cowen & Hill's Notes, vol. 2, p. 289; Lilienthal v. United States, 97 U.S. 237; Hopt v. Utah, 120 U.S. 430; Commonwealth v. Webster, 5 Cush. 295, 320; State v. Bartlett, 43 N.H. 224; Alexander v. People, 96 Illinois, 96; People v. Fairchild, 48 Michigan, 31; People v. Millard, 53 Michigan, 63; Commonwealth v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581; Wharton v. State, 73 Alabama, 366; State v. Tibbetts, 35 Maine, 81; Moorer v. State, 44 Alabama, 15.
Greenleaf traces this presumption to Deuteronomy, and quotes Mascardus De Probationibus to show that it was substantially embodied in the laws of Sparta and Athens. Greenl. Ev. part 5, section 29, note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration, as the following extracts show:
"Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day." Code, L. IV, T. XX, 1, 1. 25.
The noble (bivus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent." Dig. L. XLVIII, Tit. 19, 1. 5.
"In all cases of doubt, the most merciful construction of facts should be preferred." Dig. L. L, Tit. XVII, 1. 56.
"In criminal cases the milder construction shall always be preserved." Dig. L. L, Tit. XVII, 1. 155, s. 2.
"In cases of doubt it is no less just than it is safe to adopt the milder construction." Dig. L. L, Tit. XVII, 1. 192, s. 1.
Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, "a passionate man," seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, "Oh, illustrious Caesar! if it is sufficient to deny, what hereafter will become of the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Rerum Gestarum, L. XVIII, c. 1. The rule thus found in the Roman law was, along with many other fundamental and humane maxims of that system, preserved for mankind by the canon law. Decretum Gratiani de Presumptionibus, L. II, T. XXIII, c. 14, A.D. 1198; [***492] Corpus Juris Canonici Hispani et Indici, R.P. Murillo Velarde, Tom. 1, L. II, n. 140. Exactly when this presumption was in precise words stated to be a part of the common law is involved in doubt. The writer of an able article in the North American Review, January, 1851, tracing the genesis of the principle, says that no express mention of the presumption of innocence can be found in the books of the common law earlier than the date of McNally's Evidence (1802). Whether this statement is correct is a matter of no moment, for there can be no doubt that, if the principle had not found formal expression in the common law writers at an earlier date, yet the practice which flowed from it has existed in the common law from the earliest time.
Fortescue says: "Who, then, in England can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favor of life; none but his neighbors, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused guilty. Indeed, one would much rather that twenty guilty persons should escape the punishment of death than that one innocent person should be condemned and suffer capitally." De Laudibus Legum Angliae, Amos' translation, Cambridge, 1825.
[*456] Lord Hale (1678) says: "In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die." 2 Hale P.C. 290. He further observes: "And thus the reasons stand on both sides, and though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, quod dubitas, ne faceris." 1 Hale P.C. 24.
Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Com. c. 27, margin page 358, ad finem. How fully the presumption of innocence had been evolved as a principle and applied at common law is shown in McKinley's case (1817), 33 St. Tr. 275, 506, where Lord Gillies says: "It is impossible to look at it [a treasonable oath which it was alleged that [**404] McKinley had taken] without suspecting, and thinking it probable, it imports an obligation to commit a capital crime. That has been and is my impression. But the presumption in favor of innocence is not to be reargued by mere suspicion. I am sorry to see, in this information, that the public prosecutor treats this too lightly; he seems to think that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman; and I was happy to hear from Lord Hermand he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a decree of conviction short only absolute certainty."
The Coffin case was later overruled on other grounds, having nothing to do with these principles.
Posted Sunday :: January 12, 2003| Law Related
Methinks you doth protest too much. Maybe you should tell us what your real problem is, then either I or the others on this thread will deal with it.
Thank you.
I'm not protesting. I'm just looking for the provision in the constitution that was violated by this law.
Show me the clause in the Constitution that states that a criminal defendant has the constitutional right to a presumption of innocence.
If you can show it to me, then I might agree with this judge. Right now as hard as I've looked, I can't find it.
You seem to know more than me about the Constitution, I'm sure you can locate that little clause. Once we have it, then I'm on your side. Until then, I just can't see any basis for the judge's decision.
wrong back to you. Every state has said it is a privilege to "drive" a vehicle. You have the right to walk, run, jog and even skip any where you want without a license and even ride a horse or a mule except on a highway. When you drive what is considered a dangerous instrumentality on the "public ways" then the state has a duty to protect it citizens and the most reasonable and least restrictive means is licensing.
I wouldn't want to be on the road at .08.
Take it up with this guy.
I wouldn't want you to be and I'm sure you would not want to meet me in that condition. With the high powered cars anything that slows or interferes with reaction times is dangerous.
Maybe we're not a free society.
NO, I am not a member of MADD.
"Maybe we're not a free society"
Never have been. Our system depends on rights and "responsibilities" and responsibilities always restricts some of our rights for the common good.
Due process clause. There is a problem, of course, with defining what due process means, since it is a pretty broad phrase, but I think the best interpretation is that whatever processes or protection were in place as part of the common law at the time of the adoption of the document are required for procedural due process; incidentally, this is Scalia's view, as well. Presumption of innocence was part of the English common law and pre-constitutional American law and thus is part of the procedural due process clause.
I agree with that. It's all a matter of degree, however. This Judge has concluded that we may have gone too far with this particular situation. I agree with her also.
I probably shouldn't have renewed this argument on this thread, as I have to go to work now. I will check back in 9 hours or so.
In my mind a presumption of intoxication at a set level of alcohol in the blood does not amount to a presumption of guilt. The Government still has the burden of proving beyond a reasonable doubt that you actually had a level of alcohol higher than .08%. Once proven beyond a reasonable doubt, then the application of a presumption would seem logical rather than unconstitutional.
The law prohibits one from having an alcohol level higher than .08%. There is no presumption that you have that level. The presumption is that once you reach that level you are intoxicated. The burden would then shift to show that even though you exceeded the legal limit, you were not ACTUALLY intoxicated. In other words, the law provides an out for the guy who can handle his liquor.
It would appear that all Virginia needs to do is remove the presumption and just make it a felony to drive with higher than a .08% blood alcohol level. Zero Tolerance. If this case holds up on appeal, then that's what these stupid lawyers are going to end up with.
A Pyrrhic victory in the making.
Well put.
See post 117. You may not like what you end up with.
That's a good answer. It's still founded on tradition and not the constitution. But I'll buy that.
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