DUI law ruled unconstitutional

TimesDispatch.com ^ | today | Matthew Bakarat

[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....

[P-Marlowe]

Until we start punishing everyone equally, the law will be an ass.

Actually the .08 limit does exactly that. It punishes everyone equally for drinking a sufficient amount of alcohol to produce a BAC of .08 and then getting behind the wheel.

I can't think of a fairer way of adminstering justice.

[Sandy]

Would you allow your teenage children to go out for the evening if you knew the driver of the car they were going to be riding in had a blood alcohol content of .05?

Depends on who the driver is. I'd take a .05 experienced driver over a 0.00 teen anyday though. That's speaking for myself as passenger. I don't have kids.

[P-Marlowe]

Depends on who the driver is.

I'd suggest that you would make a "reckless" mother. There is not a snowball's chance in hell that I would allow my teenage children to get in a car with anyone with a .05 BAC. I might not be able to prevent it, but if I knew, then they would not be going in that car.

'Now would you be willing to let your teenagers drive on the road if you knew everyone on the road (except your children) had a BAC of .08?

Indeed would you go out on the road yourself? I sure as heck wouldn't. Driving is dangerous enough when everyone on the road is sober.

[Sandy]

It punishes everyone equally for drinking a sufficient amount of alcohol to produce a BAC of .08 and then getting behind the wheel.

Which is actually pretty stupid. 0.05 in a youngster is a heck of lot more deadly than 0.1 in 40-year-old is.

[Sandy]

It is not necessarily against the law to drive erratically.

I think it should be. The manner of driving to me is much more important than the state of a driver's mind.

[Robert Drobot]

Your Post #1, makes sense. Unfortunately, the lawyer dominated local, regional, state and national legislatures have no desire to do the "....reasonable man...." thing. It would mean all those 'officers of the court' find a productive profession.

[Sandy]

Oops. Change my previous reply to: The manner of driving to me is much more important than the state of a driver's mind blood.

[Sandy]

'Now would you be willing to let your teenagers drive on the road if you knew everyone on the road (except your children) had a BAC of .08?

I wouldn't let my teenagers drive, period. That's one of the reasons why I have no kids--because I know I would suck at it.

[P-Marlowe]

It seems to me that what you are suggesting is that we ignore the alcohol content in a driver's blood and prosecute only on how erratic they were driving before they crossed the center divider and ran head on into a honda civic full of teenageres on their way to the prom.

If the driver had a .01 BAC but was driving "carefully" and just suddenly lost control of the car, you would not punish him as much as you would a sober guy who was driving 15 miles per hour over the speed limit when his front tire blew out and he lost control of the car and crossed the center divider and plowed into that same car.

Have I got it right?

BTW how many DUI's have you had?

[P-Marlowe]

I know I would suck at it.

Goodness, we finally agree on something.

[P-Marlowe]

Make that a .10

[An.American.Expatriate]

Why is it that even here on Free Republic, I CONSTANTLY have to repeat that "None of your rights are spelled out in the Constitution!!"

We retained our rights unto ourselves and granted limited powers to the federal (and state) governments so that they could conduct business in our behalf.

The so-called Bill of Rights is NOT a list of "rights"! It contains express limitations in how far the government is permitted to infringe upon certain rights - rights that were deemed to be so important. that express limitations needed to be made!

The irony is, at least at the federal level at the time of adoption, the government was not given ANY power to legislate in in the areas "protected" by the BoR!

Hamilton, in the Federalist Papers (one of the last ones, I don't recall the number and don't have my link here...) actually argued AGAINST the adoption of a BoR, contending that their inclusion would imply that the government would have had the power to infringe upon the rights contained therein had they not been expressly limited! He used the Freedom of the Press as an example and asked the rhetorical question - in a government of expressed limited powers, why prohibit the Congress from abridging the Freedom of the Press when the congress was never granted the power to do so in the first place?

[P-Marlowe]

Then the judge was wrong to say it violated his constitutional rights. He should have said that it violated his inalienable rights.

Do you believe a person has an inalienable right to operate dangerous machinery on public highways. Or do you think that somewhere there is a govenmental right or obligation to ensure that the citizens of this country are safe from having to be subjected to unqualified people operating dangerous machinery near school zones and crosswalks?

[Trust but Verify]

Congratulations on your sobriety.

[Sandy]

It seems to me that what you are suggesting is that we ignore the alcohol content in a driver's blood and prosecute only on how erratic they were driving before they crossed the center divider and ran head on into a honda civic full of teenageres on their way to the prom.

That's about right.

[P-Marlowe]

Which is actually pretty stupid. 0.05 in a youngster is a heck of lot more deadly than 0.1 in 40-year-old is.

Actually there is a zero tolerance in California for teenagers. Anything higher than .01 in anyone under 21 will buy you a night in the slammer and a DUI on your record.

Happy now?

[P-Marlowe]

Do you drive carefully when you are drunk?

[Sandy]

Anything higher than .01 in anyone under 21 will buy you a night in the slammer and a DUI on your record.

That's cuz drinking under 21 is a crime though, isn't it? How do they treat a 21-year-old with a .01, .05, or 0.08? Same as everyone else?

[Sandy]

BTW how many DUI's have you had?

None. I'm not a drinker. I can't remember the last time I had a drink; New Years Eve 2 years ago, I think.

[P-Marlowe]

From your answers I could have sworn you've been drinking all night.