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 ...
No. I think I'd put tire blowout in the same category as heart attack or stroke--a mitigating factor--unless it could be proved that the driver should have known that his tires were a danger beforehand.
I always drive carefully. :-) I don't think I've ever driven drunk except maybe when I was a teen.
ROFL. Good one.
Bed time. Nice talking to you. Catch ya later.
You think Party status and connections didn't enter into the decisions ?
I pray God you are never in a position of authority ;one who is so quick to condemn others and desire their deaths is not suited for a free republic.
Right. When you need my help, I just be over here in the "smoking section", having a cigarette.
A half of glass of wine or less gets you blitzo?
Does for me too.
LOL!
I was, quite possibly, one of the last people to win a NOT GUILTY verdict from a jury in Texas. My week-long trial in Houston ocurred in Houston in Dec. 1983, just weeks before the "Assumed Guilty" law went into effect.
I was arrested on a Wed. night, before I was to be married on Sat. My best friend and I were leaving a "Gentlemen's Club" and had about 2 miles to drive to his apartment. We saw the police car in the parking lot before we left. We KNEW he was behind us. But, we weren't worried because we'd had almost nothing to drink. Two beers over 2.5 hours. (We had little money!)
We turned onto a major road, drove maybe a quarter mile, and were pulled over. Before I could even get my driver's license out, a wrecker pulled in front of my car and the driver was looking at my car to see how to hook it up.
I spoke with the cop a little, but he wasn't really interested in talking. He had me do several of the road-side tests, which I did, then he cuffed me and took me downtown.
At the station, I sat waiting to take my Breath-a-lyzer test. A sign on the wall said I had a right to refuse and require a blood test. I was considering requesting this, until an obviously drunk man in front of me asked for the same. A policeman pulled out his revolver and hit the man with the butt of the gun so hard, it knocked him off the stool he was on and left the right side of his face bloody. I quickly took another inventory of the drinks I'd had that evening and decided to blow into the machine.
It read: 0.10 . Legally drunk in Texas at the time, and now.. "Presumed drunk". Problem was... I WASN"T DRUNK!
I know everyone suspects the guy who says, "I didn't do it." But, in this case, it is absolutely true and I had someone with me who knew it. I will freely admit that I had previously been behind the wheel after drinking too much. Not routinely, but I'd done it. But, not this night. No way. Not even close.
I was offered a plea deal of 6 months probation and $1000 fine. I spent $1500 on a lawyer, risked going to jail, and decided to fight the system.
The first tactic for the state was to reschedule my hearings 7 times. This forced me to use up tons vacation and continue driving the 1 1/2 hours to Houston, wait in court for 3-4 hours while they "cleared the docket", then hear the prosecutor request a delay. FINALLY, the judge set a court date for December.
As I said, the trial lasted a week. It turns out, the Feds were supplying money to the State of Texas to run DWI "task forces". They arrested 77 people this night. NONE passed the Breath-a-Lyzer test. Several people tested at >0.40, including the man just before me. This is typically a fatal reading. Even though the machine records obviously showed the machine was faulty, no maintenance or calibration had been done in the previous two weeks.
The law in Texas at the time required officers to watch the testee for 15 minutes before giving the test to make sure they don't burp, as this could skew the results of the test. The officer who signed th statement saying he was "Waching" me, was at the same time, testing 10 people in another room.
The arresting officer completely lied on the stand about what I did and where I was. To strengthen his testimony, they even invented a second officer (who was never there) to back up his story. Problem was, he wasn't there.... My attorney was able to catch them in several lies (my clothing, whether or not there was a sidewalk, the look of the location). It became rather obvious they were both lying.
We had the Head of the Houston PD Chemistry Dept. on the stand testifying that the "Breath-a-Lyzer" is "NOT A CHEMICAL TEST". It uses an infrared analyzer, and is thus a physical property test. The Texas law at the time specifically required that a defendant be shown to have 0.10 BAC "By a CHEMICAL TEST". After closing their case, the prosecution was allowed by the judge to re-open after my lawyer asked for the case to be thrown out. The next day, the brought a low level chemist to the stand to say, "Yes, it's a chemical test".
Oh... did I mention that the Judge was handing out Christmas party invitations to the court staff AND PROSECUTORS as my trial was going on? They're all really good friends.
My attorney presented evidence from a technical expert that had analyzed the circuitry of the Breath-a-lyzer and identified more than 300 potential sources of error. This expert showed proof that he tried to purchase one of these machines for three times the normal price. He intended to do a full study. The manufacturer would not sell to him.
The courtroom was PACKED for the closing arguments. Richard "Racehorse" Haynes was in the audience. The attractive female prosecutor was 33-0 at the time. And, she tried to twist my words on the stand. Luckily, the court reporter accurately recorded what I said.
The jury was out for maybe 15 minutes before returning a NOT GUILTY plea. Naturally, I was very thankful. Had I known just how stacked the deck would be against me, I probably would have taken the plea. But, to me, it was a matter of principle. I WAS NOT DRUNK!
I know this is way too long for anyone to read on FR. But, I haven't told this story in a very long time.
PARDON me, if I have little faith in the Breath testing system.
Sorry but that is a load. I was pulled over because I forgot to signal as I exited a "deserted" interstate. The officer did everything he could to arrest me but I was well below the limit and he had to let me go.
My son in law is a cop. Last year he told me that all of the cops in my state were told to write more DWI tickets because federal money for their departments was going to be based on the number of DWI's they wrote up. They were told to use any excuse they could conjure up to make stops, including not having a buckeled seat belt.
How about sobriety checks? Is that an officer "pulling over" someone who is acting funny?
I don't condone drunk driving, but when a group like MADD can successfully lobby the feds who then threaten to pull highway funds from the states unless they comply with some arbitrary standard, isn't right.
And 99.999% of the people who have a BAC of .08 aren't driving on the wrong side of the freeway.
My Uncle, Aunt and two cousins were killed by a driver who was having an argument with his wife. No Alcohol involved, just having an argument.
My sister died as the result of a crash. The driver at fault was exhausted. No Alcohol was involved.
More people die in wrecks as a result of stupid behavior than drunk drivers. Cell phone usage is just another example of stupid behavior.
I think if you wanted similar penalties for talking on the cell phone, putting on makeup, eating a super-sized meal, etc. I might disagree with you, but at least you would be intellectually consistent and I could respect where you are coming from.
I come from two angles:
1. I think, that going after the guys with two beers probably ultimatly harms getting the drunks off the road.
2. Yesterday after work I went to Chili's after work with a co-worker. I am an attentive driver, I don't talk on the cell phone, etc.
I find it hard to accpet what I did being a crime while passing people on the cell phone, putting on makeup, etc.
I agree. The question is, what is drunk?
Two answers: I am sure that I have driven at .05 with my kids in the car. If we go out to eat, I will have two drinks. I am not at all concerned.
Your larger point, however is one of acceptable risk. The question is, where do we draw the line? If you think the answer is zero, then I am ok with that intellectually so long as you ban other, similar levels of risk. I think .1 works, and I think it is better to have the level be reflective of reality so that the law and the courts can focus on those who are really a major threat. The guy who drives down the wrong side of the highway is at .2, not .1.
I'd suspect that anyone who drove without a seat belt was suffering from impaired judgment. At two in the morning, I'd pull over anyone who I could see was not wearing a seat belt. I'd also suspect that anyone driving more than 5 miles an hour UNDER the speed limit was trying to hide the fact that they had too many.
All in all, I have no sympathy for people who drink and then drive. That is reckless behavior. I do not begrudge the police for going after drunks. If we lower the limit to .05 and increase the penalties, then we are likely going to reduce the number of people who are driving at .15.
.08 is not arbitrary. Look at the Chart in post 138. It is clear that even at .05 the increased risk of a fatal accident is well beyond any statistical anomaly. I think you should ask yourself, what is the acceptable level of intoxication that you would feel safe letting your children on the highway if you knew that EVERYONE on the highway was at that level? .08? Higher? Would you feel safe if every driver on the highway was at .10?
I tell you I'm nervous enough thinking that everyone out there driving dangerous machinery on the highways is sober.
That tells me a lot about your judgment. It also explains your attitude on this thread. You just don't want anyone on the road who is drunker than you are. You consider yourself the standard of sobriety. I'd consider you impaired.
I'm not in favor of sobriety checkpoints. The cops would do a lot better if they just followed people leaving bars.
I know that this isn't a great scientific study, but on Mythbusters they had some of the hosts drive an obstacle course at .75 intoxication and while talking on the cellphone. Surprisingly, if you said talking on the cell phone was far more dangerous you would be right.
Not bragging, but I've been to bars in 7 countrys in the Marines and my intoxication level is super high. It is far more dangerous to have some of the elderly and/or cell phone talkers on the road who are prefectly legal than to have me at .8.
The only time I came close to wrecking a car in 30 years was when I was talking on a cellphone (never wrecked in a million miles). No longer use in a car.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.