Number 222 May 2000
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 ...
The problem arises when there is no real test for "impaired". "Impaired" means whatever the LEO on the side of the road wants it to mean. Until that is somehow objectified, we are all potential victims of the DWI industry.
Sorry, I REALLY have to go now. 20 minutes until workaday.
It's that mad dog 20/20!
Can't you read?
You have a whole plethora of Constitutionally protected rights that aren't enumerated. Presumption of innocence, as historically found in British Common Law, Roman Law, Greek Law, and even to a degree in the Code of Hammurabi, is among those non-enumerated rights.
Is that what you really want? The only solution is a zero tolerance at a set alcohol level. So that guy the is royally toasted at .07 walks and the guy who is totally unaffected by a .10 goes to jail? Is that your goal?
The presumption actually favors the defendants. It gives them a chance to prove that despite the alcohol level, they were not impaired. Remove that and all you have is this zero tolerance. The other choice is to let all the drunk drivers go free. That ain't gonna happen.
If this decision holds up, then the law will become more strict, not more flexible. The law that was struck down was flexible. If they can't use this law, then they have no choice but to make it inflexible and you don't want that. Believe me, if you've seen zero tolerance laws in action, they do not promote justice.
Enjoy your victory. Your enthusiasm may not last for long.
But government encroachment on our freedoms must be fought.
And .08 BAC is well PAST ridiculous.
I'm sorry for your loss, but I think your claim just bolsters what we are saying... .2 is not a "few" beers. The carnage is caused by the super drunks. .2 is a lot. It is a lot more than .08. The government should be focusing on the carnage, and the people who cause the carnage.
^The Constitution of the United States never was meant to explicitly cover every legal question;it is a statement of broad principles,specific enumerated government powers and a guarentee that all other powers and rights are still the people's. The COnstitution was meant to limit gov't not limit freedom. The freedom to travel was certainly known in 1787 and I never read of drivers' license for those in charge of 5000 lbs of excitable animals and a similar vehicle=4 big horses and a delivery wagon.
I ask any of the regular guys on FR to think about this and stick with the plan, 2 or three beers then go home to drink some more, it just may save you from destroying your life and someone else's.
Reckless driving and killing a person while driving recklessly should be crimes. But we put too much emphasis on *why* a person was driving recklessly, and DUI laws don't even care whether a person was driving recklessly at all. What's in a person's blood at the time of an actual crime should be either irrelevant or at most one among several possible aggravating factors in sentence determination (and even then it should be *proved beyond a reasonable doubt* that the person's blood content was actually related to the person's reckless driving). Blood content should never be a crime in and of itself, whether while driving or not. I've never understood why driving while intoxicated is considered so much more reprehensible than for instance driving while tired, especially considering the fact that many more accidents are due to fatigue rather than due to intoxication. It's senseless.
As far as I can tell there are still no license requirements that I am aware of in regard to the operation of a horse drawn carriage. In that sense I believe you really do have an absolute constitutional right to travel in a horse drawn carriage or to ride a horse without a license.
At the time the constitution was drafted there were no dangerous locomotive vehicles available on any roadway or other thoroughfare.
The constitution gives you the right to travel. I won't argue with that. It does not, however, give you the right to operate a locomotive vehicle on public roads where you could endanger the general public. If there is a true constitutional right to operate a motor vehicle, then a blind man would be free to take the wheel and drive through a school zone any time he so pleased.
You are free to travel. The government is free to keep you from operating dangerous machinery. There is no constitutional right to operate a dangerous piece of machinery on a public road.
""Rather than out getting the bad guys""
who are the bad guys here if not drunk drivers.
also you seem to really miss the point. all the reasoning of the judge to toss out .08 can be used to toss out .10 which you favor and so forth.
""It is a cash cow that nation-wide brings in billions.""
i think youre greatly overstating it....i have a very hard time believing that there are potentially billions in fines to be collected by ticketing people with a .08-.09 BAC.
I think the real DUI troublemakers are in the "fat middle." Not the alcoholics who drink and drive all the time, nor the dinner crowd who creep over .08 because of a second glass of wine, but rather the middle crew, who don't drink often and don't know their limits, then get behind the wheel after a binge that went farther than they realize.
DAMM = Drunks Against Mad Mothers.
Huh? What I am saying is that the bad guys are the people who cause carnage. The people who cause carnage are the people who are loaded, not the people who had a couple of drinks. Rather than crack down on the people who are loaded, the government has taken the approach of defining down what drunk means so that they can increase their arrest rates. However, this does nothing to reduce the carnage.
So if a guy with a .08 gets into a head on collision with a family in a civic it is going to cause less carnage than if a guy with a .2 gets into a head on collision with that same family?
Yeah, that makes sense.
The government should be focusing on the carnage, and the people who cause the carnage.
They are focusing on the carnage. That is why they properly throw idiots who drink and drive in jail. I only wish they'd throw away the key. If you drink to the point that you are at a .08 and then get behind the wheel, you should be arrested for being stupid. There is no excuse for drinking and driving. None.
In Cold-War Bulgaria they used to have the death penalty for drunk driving. Very few people were ever caught. Those that were caught were given Darwin awards.
Huh? Think logically. It is also the case that someone who hasn't had anything to drink who has a head on collison with a civic will cause the same carnage. Do you suggest banning driving?
The point is that drunk driving is a terrible thing. So drunk driving should be banned, it should be cracked down on, the full force of law should trample anyone who does it.
The carnage is caused by people driving DRUNK. LOADED. Not the people who had two beers. Yet, rather than focus on those who are loaded, repeat offenders, people leaving bars and concerts at night, the government is simply defining down what "drunk" means.
This does not do anyone any good.
Obviously, your stats state two things: That the main risk is by people who are LOADED. Also, however, it does suggest that a few beers creates an increased risk. I would bet, however, that at the .05 level one is at less risk than someone yammering on the cell phone, putting make up on, driving with a dog on the lap, yelling at the kids fighting in back, or eating a #2 super-sized.
Invariably the cops pull over those they suspect as being loaded. They don't pull over cars that are not acting funny. If the driver is driving erratically, then it doesn't matter if he's a lightweight and can't handle even one beer or he's a heavyweight who can drink an elephant under the table, the chances are that if you get pulled over after drinking, you are impaired.
Look at the chart above. It is pretty clear that statistically speaking even one beer can increase your chances of getting into a fatal accident. the more you drink the higher the risk. The questions is what is the acceptable level of risk. It is pretty clear from the charts above that anything above .08 is unacceptable.
I would lower it to .05. I would also dramatically increase the penalties. So don't vote for me.
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