Libertarian ping.To be added or removed from my ping list freepmail me or post a message here
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 ...
that would be nice. IMO anyone who loads up on alcohol before getting behind the wheel is per se driving poorly. He doesn't need to drive head on into a civic full of teenagers on the way to the prom to prove to me that he was driving reckless.
Granting a person the "privilege" of proving his legal innocence is in no way a remedy.
Then if the state proves he had a .08 BAC, what can he do to avoid conviction? Wink at the jurors? At least Virginia left the opportunity open for a guy with a .08 to prove that he wasn't impaired. Most other states could care less if they guy was actually impaired. All they need to show is the guy had a .08 and he's history.
I blame the legislators, which I suppose is ultimately We the People. The law schools just go along with it I guess.
Hmmm. Just occurred to me that "They the People" is a more appropriate phrase than "We the People". :-)
Good question. How about the 10th amendment? The states can do just about anything the people of the states want.
Was that one repealed?
Huh?
And what are the odds that if he makes it to the cemetary, he's going to take somebody else with him?
From what I recall in law school a malum prohibitum law is constitutionally permissible if the crime is not a felony. (in felony convictions you must prove some element of intent). Additionally in a trial on a malum prohititum misdemeanor violation you are not entitled to a trial by a jury.
Get off your high horse. It sounds like your rarely, if ever, drink. I've been drinking for years. In college I used to put back 12 beers per night, easy. I barely feel anything on 2 beers, as do most people.
Even the new prohititionist(s) (you know who you are).
Have you ever been arrested for a DUI?
Good ruling!
Good question. How about the 10th amendment? The states can do just about anything the people of the states want. Was that one repealed?
Not repealed, although many States ignore the powers that were prohibited to them, like inventing 'criminal acts'. --- It's now a criminal act to own certain semi-auto weapons in CA, with the blessing of the Feds. Do you approve?
From what I recall in law school a malum prohibitum law is constitutionally permissible if the crime is not a felony. (in felony convictions you must prove some element of intent).
Yet here you are approving of felony DUI, - 'proved' by a machines reading, -- correct?
Additionally in a trial on a malum prohititum misdemeanor violation you are not entitled to a trial by a jury.
Trial by a jury directed to convict if the machine reads .08 is a parody of justice. Correct?
Actually I checked Missouri's law and it looks like the BAC prohibition is a misdemeanor and if you are to prove up a felony conviction it does appear that you need to prove that the driver was actually intoxicated.
Possession of drugs is a malum prohibitum but in most cases the felony must show some kind of intent, such as an intent to distribute.
Trial by a jury directed to convict if the machine reads .08 is a parody of justice. Correct?
If it has been determined that it has been proven beyond a reasonable doubt that the driver had a .08 BAC then a conviction is proper since the law prohibits having a .08 BAC.
By the way, can you back up this rather novel idea?
Is it OK to write laws that infringe on a mans rights as long as he serves less that a year in jail for violations?
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A trial by a jury directed to convict if the machine reads .08 is a parody of justice. Correct?
If it has been determined that it has been proven beyond a reasonable doubt that the driver had a .08 BAC then a conviction is proper since the law prohibits having a .08 BAC. 273 P-M
So then, -- if we use the CA 'law' above for example : -- A trial by a jury directed to convict if the machine banned is semi-auto, --- is a parody of justice. Correct?
'If it has been determined that it has been proven beyond a reasonable doubt that the person possessed a banned weapon then a conviction is proper since the law prohibits having a banned weapon.'
Could that be your answer? Are you aware of your circular reasoning?
Libertarian ping.To be added or removed from my ping list freepmail me or post a message here
Its just something I remember from law school.
Is it OK to write laws that infringe on a mans rights as long as he serves less that a year in jail for violations?
No, it's not.
Does a man have the constitutional right (or the inalienable right) to operate dangerous locomotive machinery on public roads if he's been drinking?
You guys have all been great sports (especially Sandy) and I've enjoyed this rumble. I will leave this thread to your capable hands.
Thanks for the mental challenges and thanks for the interesting discussions. If I ticked anyone off, I'm truly sorry. If I made you think, then I'm truly glad. You guys all made me think.
It was fun.
Marlowe
By the way, can you back up this rather novel idea?
Its just something I remember from law school.
As Sandy said, the 'legalese' taught in school is not necessarily constitutional.
Is it OK to write laws that infringe on a mans rights as long as he serves less that a year in jail for violations?
No, it's not. Does a man have the constitutional right (or the inalienable right) to operate dangerous locomotive machinery on public roads if he's been drinking?
I'd say yes, and so does our Constitution. -- Within limits. - And as the judge in the article ruled, " -- 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 -- "
Smart man, and it's a pity we don't have thousands more like him on the bench.
No, in my family early on in high school, drinking was tolerated, but drinking while driving got the death penalty. So although I drank in High School, I never drank and drove. In college, I was in NYC, so we didn't even have cars.
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