DUI law ruled unconstitutional

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....

Prove the impairment beyond a reasonable doubt, don't just assume it.

The statisics prove it. The burden shifts to you to prove that you were NOT impaired.

If this law is overturned, then the legislatures will undoubtedly make it a crime simply to have a blood alcohol content above .08. Then all the state has to do is prove up the blood test and you go to jail. Under the present Virginia law, all the .08 blood test does is to create a rebuttable presumption that you were impaired. You can then present evidence that despite your .08 BAC, you were not impaired.

If the judge's ruling is upheld, there will be no opportunity to present evidence in regard to your ACTUAL impairment. The the legislatures will simply make it a crime to drive with a BAC exceeding .07 whether it actually affects you or not. The only rebuttal evidence you will be allowed to present is evidence to rebut the accuracy of the blood test. All the prosecution will have to do is establish that the BAC test is reliable and you are basically automatically going to go to jail. As the law (that was declared unconstitional) was written you could produce evidence that you were NOT impaired despite the blood readings.

Those who challenged this law obviously have no idea of what will happen if it is declared unconstitutional. They are going to end up with zero tolerance laws and no ability to present evidence that in fact you were not impaired. Impairment evidence will be irrelevant.

This judge has set in motion the very thing you fear.

Think about that.

Just damn. I don't know where to start.

Another drunken federal judge making stuff up. There is a presumption of innocence unitl the evidence proves that the is a blodd alcohol level in excess of .08. The presemption of innocence into probably cause when the observer sees unsteady gait, slurred speech, and smells alcohol. The the observer administers any on of a number of objective tests to confirm.

HUH?

This decision is so irrational that the perp involved must be black, a minority or related to himself.

Nevermind.

Sir, could you please just blow into the tube?

The legislatures are not going to let people drive with .08 or higher BAC's. It would be a violation of their oath of office to allow people who are presumptively impaired to share the streets with my children.

If this law is overturned, all the legislatures need to do is to simply make it a crime to have a BAC over .08. Right now all it does is create a presumption that you have broken the law. If the legislatures can't have that, then they will simply make it a crime to have a .08 BAC.

If you disagree, then you don't know lawmakers. I certainly would not allow the legislature of my state to sit idly by while impaired drivers are free to endanger my children. I think I'm in the majority on this one.

Just watch what happens if the judge's decision is upheld. Frankly I think its great. I hope it is upheld. I don't want to waste court time with trials where people try to prove they were not under the influence at .08 or higher.

The last 2 times I was called for jury duty was on drunk driving cases where the defendant was attempting to prove just that. Needless to say I was bounced out early 'cause I was honest about how I feel about drinking and driving. If this ruling is upheld, I doubt I will even have to be called for jury duty.

Way to go Judge O'Flaherty! A pyrrhic vicotry for the drunks. Drink up.

A long time ago I used to go squirrel hunting with a friend and as the property owner didn't have a really big woods he asked us to use shotguns.

Well, my buddy had a squirrel dog who would never tree a squirrel within less than 500 yards, so we did a lot of running.

My buddy would start into the woods with the dog and scan the tree branches for nests and everytime he saw one he would let off a couple of blasts into the nest, hoping to catch a late sleeper.

He grew up to become a policeman in the USAF and a Marshall afterward, always thought there was a connection.

Sandy wrote:

The problem with DUI laws is that they make the state of the driver's *mind* a crime rather than making the state of the driver's *driving* a crime. It's absurd that a person who kills someone in an accident gets a relative slap on the wrist if he's driving while exhausted or driving while sick, but if his blood alcohol is a certain level, he gets the book thrown at him regardless of *how he was actually driving*.

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.

_______________________________________

__________ CRICKETS __________

Typically, the most rational post on a thread is ignored..

Thanks Sandy. Well said.

I totally agree with you, alcohol is no different than other medications - people do react to them differently, and they do build up a tolerance after a while also.

In my ultra-stupid younger years, I got pulled over and hauled downtown. Deservedly so. I'd probably had a case of beer that day and was flat out drunk. For some bizarre reason, however, breathalyzers don't work on me like they do on most. I registered .02. Not .20. .02 after drinking all day. The policeman who stopped me was furious and wanted to hold me anyway but the shift captain refused. That was the last time I drank and drove, but after that I started checking myself whenever I was in a bar that had a breathalyzer machine. No matter how much I'd had, no matter how sloppy drunk I was, I never tested higher than .021.

I don't drink at all anymore. (I don't think taking a drink is a sin per se, but I do believe drinking can hurt my witness as a Christian, so I've stopped.) I also have zero tolerance for drinking and driving. I'll turn a friend in. I'd turn a relative in. If I see you drinking and driving, I'll turn you in. If someone sees me doing it, I sure hope they do the same. Utter common sense says alcohol and public roads don't mix, period. I think you have the right to drink if you choose, but when you hit the roads where my children and grandchildren and wife may be, that's a privilege, not a right.

I don't drink at all, and my grandfather was killed by a drunk driver, so I have no sympathy whatsoever for DUIs. That said, I still think some of our more recent MADD-inspired laws are "madd." The whole idea of cracking down on drunk drivers was to make them finally take responsibility for their actions. Now, we've gone so far overboard, we're arresting party hosts and bartenders for giving them the booze, which allows them to point the finger of blame at someone other than themselves, the exact opposite of the original intention.

And the open container law we have now in Texas is idiotic. The driver can be charged if anyone in the car is drinking, even if he hasn't had one sip. My wife has to finish her glass of wine at a party and can't take it in the car with her, because they could arrest the driver (me), who hasn't had a drink of anything alcoholic in 30 years. How in the hell arresting people who aren't drinking reduces drunk driving is far beyond my comprehension. I can only assume the Texas Legislators were drunk when they passed it, which would explain a lot of their legislation.

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.

You conveniently avoided the gist of my post. The police were required to write more DWI's to maintain their funding. So I forget to put on my seat belt (it's happened) and I'm suffering from impaired judgment? Am I driving impaired?

While I respect those who don't approve of drinking and driving, I lose that respect when they blindly assert crap like that.

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

Jesus that happens on a constant basis, especially the day social security checks hit the mail boxes. I certainly hope that the Gestapo police that you advocate don't start arresting all of the geezer drivers.

The burden shifts to you to prove that you were NOT impaired.

This of course is the problem. Guilty until proved innocent is a morally repugnant standard to those who value freedom and individual rights. Requiring proof of innocence--you truly see nothing wrong with that as a process?

The statistics prove it.

"Statistically guilty"--has a nice ring to it, eh? Statistics prove that 100% of shootings are caused by people who possess guns. By your standard, everyone with a gun should be forced to prove that he hasn't shot somebody, or else go to jail.

I don't know about your state, but in mine that's already the law. No doubt you approve.

If you don't like the laws, you can change them. First you have to convince the legisltures. The cops are charged with upholding the laws and the citizens are charged with not breaking them. If a citizen breaks the law, he is in no position to complain that he should not be charged because there are other people who are more guilty than he is.

By God's grace and will it was he who was caught. The other guy will eventually get caught too.

And yes the police are required to write as many DUI's as they can. Good for them. If the people who are caught in their sites are not violating the law, then they will undoubtedly be released without charge after whatever inconvienince they have to go though as part of their licensing agreement.

The main reason for DUI crackdowns is not to generate income, but to get the word out that drinking and driving will not be tolerated. If I were police chief, I would insist that my officers write as many DUI's as they could.

People need to think before they drink and not drink before they drive. Having a couple of friends who have gotten DUI's is as good a lesson as getting one yourself. Just pray it is your friends who can teach you that lesson and that you do not have to become the instructor to your friends.

Requiring proof of innocence--you truly see nothing wrong with that as a process?

Well if the judge's decision is upheld, anyone caught with a BAC of .08 or higher will not even have the opportunity to prove he was not impaired. He will be convicted of being at .08. Which would you prefer? A system that presumes that a person is impaired at .08 or higher with an opportunity to prove otherwise, or a system in which the person who tests out at .08 is guilty of a crime unless he can prove his blood was not actually higher than .08?

Please think about it. The law that was found unconstitutional actually gives drivers the opportunity to prove they were not impaired. Any law that replaces it will give the defendant no such opportunity. The crime will be based solely on the content of the blood with no consideration as to actual impariment.

Is that your preference?

Gee, I'm shocked.

I think you took my comment out of context. As a joke that is funny. But if you are trying to twist my words to try to show everone on this thread that I do not believe in due process, then that is dishonest.

I take it that was meant as a joke? :-)

I disgree. If it is declared unconstitutional then you will be ticketed only if you broke traffic laws. Not because of inconsequential behavior.
223 Buster777

______________________________________

Their oath is to support the Constitutions primary principles, one of which the judge cited, -- denying a defendant's right to a presumption of innocence.

If this law is overturned, all the legislatures need to do is to simply make it a crime to have a BAC over .08.

Legislatures do not have the power 'to make just anything a crime', -- not in a free republic.

Right now all it does is create a presumption that you have broken the law. If the legislatures can't have that, then they will simply make it a crime to have a .08 BAC. If you disagree, then you don't know lawmakers.

It seems you don't know your own Constitution, and how it safeguards you from such 'law'makers.

I certainly would not allow the legislature of my state to sit idly by while impaired drivers are free to endanger my children. I think I'm in the majority on this one.

The whims of a 'majority' are frequently overruled by constitutional safeguards in a Republic. Be thankful.

Typically, the most rational post on a thread is ignored.. Thanks Sandy. Well said.

Thanks, but it was later pointed out to me that I should have been using the word "erratic" rather "reckless" when referring to the manner of driving. Apparently "reckless" in legalese refers to a person's state of mind rather than his actual behavior. I didn't know that before.

Bull, the entire DUI system is about revenue. Why else would they bust someone in the back seat of a vehicle with the keys in the ignition. They aren't driving Drunk..but they are prosecutable, and than means cash.

There is also revenue insentive to nail men for domestic assault. Regardless of who hit who.

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.