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DUI law ruled unconstitutional
TimesDispatch.com ^ | today | Matthew Bakarat

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 ...


TOPICS: Crime/Corruption; Culture/Society; News/Current Events; US: Virginia
KEYWORDS: 1fortheroad; alcohol; drunkbastards; dui; fairfaxcounty; good; onlyhad1; ruling; woohooletsdrink
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To: Rodney King

I agree with you. But do not try drinking and driving in Oregon. We were the first state in the country to adopt .o8 as the legal limit. Two or three beers for most people will put them over the limit. The entire state is one, vast police trap with cops stopping people for seat belt violations and faulty turn signals.


281 posted on 08/13/2005 4:26:29 PM PDT by ex-Texan (Mathew 7:1 through 6)
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To: Junior

"laws are the lazy way out"

Oh, very true. But mankind loves laws, the more the better. And it doesn't matter if there are already 40 laws on the books that address the same thing. Jesus Christ boiled down all of the Old Testament law into "Love thy neighbor as thyself". All of our laws could be broken down into a simple moral code but that would require thinking whether they were breaking this moral code so they opt for specific laws.


282 posted on 08/13/2005 4:39:58 PM PDT by jwh_Denver (The government said it? I believe it! Hehe hoho haha!)
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To: musanon

Thank you. Very cogent. Keep up the good work.


283 posted on 08/13/2005 5:08:06 PM PDT by elkfersupper
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To: P-Marlowe

"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."

Anything near .08 in Georgia and you're off to jail with your car impounded. That's some presumption. And then there's the few thousand dollars later...your job and your life in jeopardy.

My theory on this is that social engineers (like MADD) should have no standing in a free republic...

Now drunk drivers, those real and actual drunk drivers who are visibly impaired, and readily proven with a few field sobriety tests like the one's that worked for years, throw the book at'em Dano!


284 posted on 08/13/2005 5:40:38 PM PDT by takenoprisoner (illegally posting on an expired tag)
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To: All

I'm a fifteen year recovering alcoholic too, so I no longer drink alcohol, but the laws these days border on extremism and tyranny. What was once a perfectly reasonable crusade against drunk driving has now been made into a war against anyone who imbibes. Given the opportunity they will criminalize a driver who has had a single beer.

We are giving police and the courts power over every aspect of our conduct. I was in a courtroom the other day with people charged with petty crimes. I drive mental patients and one had not appeared in court because of being hospitalized. The security guards and police treated everyone who entered the courthouse like dogs. One fellow had been ticketed for jaywalking in front of the courthouse. He was half blind and on crutches. What a criminal he is.

Liberals love controlling every aspect of human behavior. Liberals have no faith at all in their fellow citizens. They want rules and regulations for everything that could ever happen. That's a police state. And I'm appalled at how many people here think it's a good thing.

We don't punish our sex offenders and predators. But we have police prowling for speeders in artificially low speed zones and drivers having a couple of beers? Insanity, pure and simple.


285 posted on 08/13/2005 5:55:10 PM PDT by Luke21
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To: Luke21

The most dangerous phrase ever uttered is "there ought to be a law"(against something the speaker doesn't like).Our legislators are only too willing to write those laws.


286 posted on 08/13/2005 6:22:31 PM PDT by hoosierham
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To: P-Marlowe
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.

But are sitting idly by?

Have you called for a ban of drivers over 75? Some older drivers may still have the reflexes and ability, but most are unsafe at any speed.

Have you called for a ban of drivers under 20? Some may have the temperament and the good judgement to drive, but most are extremely unsafe.

Have you called for the random testing of legal over the counter and prescrition drugs? Taking sedating antidepressants even 10 hours before driving is equal to driving drunk. 10 mg of Valium can cause greater driving impairment than a blood alcohol concentration of 0.1 (at or above the legal limit in all states). Antihistamines — which block allergic reactions — slow down reaction time and impair coordination. Over-the-counter decongestants can cause drowsiness, anxiety, and dizziness.

Have you called for a total ban of cellphone usage in cars? All of the researchers agree that the risk of crashing is multiplied when a driver is talking on the phone (2600 deaths, 570,000 injuries, and 1.5 million crashes causing property damage). FYI: Since it's been shown that the distraction from cell phones is mostly a cognitive one, having both hands on the wheel will make little difference.

Yes, the point is that you allow your legislature to sit idly by doing nothing about hundreds of other types of impairments. These impaired drivers endanger your childern but you are happy as long as they have an arbitrary law against a .08 BAC.

287 posted on 08/14/2005 8:30:08 AM PDT by BushCountry (They say the world has become too complex for simple answers. They are wrong.)
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To: Dead Dog
Sir, "obviously off the wall" is something that can easily be refuted. Which specific statistics do you object to? Please allow me to, with respect to you major objection, respond. Your other contention I can not address, as I believe that the laws in existence are a result of a vindictive, retribution, hate organization (and who really can blame these people for their emotions?). I've wrestled with the issue for several years, and believe that its more "knee jerk" response (albeit pragmatic), rather than a solution that addresses the core of the problem. The core of the issue is that alchohol and other intoxicants have become a pivotal and fundamental part of our society. All of that was explained to me during my Alchohol Awareness programs that I was legally required to attend a few years ago.

The US Department of Transportation estimates that the typical driver will have a near automobile accident one to two times per month and all will be in a collision of some type on average every 6 years.   According to the National Safety Council (NSA), there are more than 12 million motor vehicle accidents annually that involve more than 20 million vehicles.  Of these accidents, about 6.4 million are nonfatal, over 2 million are injurious and about 4.3 million are property damage only.  The following charts are from the NHTSA:

Chart 6 Occupant Fatalities in 2002
By Age and Restraint Use, In Passenger Vehicles

Age Group Restrained Percent Restrained Unrestrained Percent Unrestrained Total Total Percent
0-4 274 59.6% 185 40.4% 459 100%
5-9 205 51.4% 195 48.6% 400 100%
10-15 350 37.7% 576 62.3% 926 100%
16-20 1,999 35.5% 3,626 64.5% 5,625 100%
21-24 1,199 32.6% 2,477 67.4% 3,676 100%
25-44 3,232 32.7% 6,656 67.3% 9,888 100%
45-64 2,947 46.8% 3,353 53.2% 6,300 100%
65-74 1,253 58.5% 887 41.5% 2,140 100%
75+ 1,983 63.9% 1,122 36.1% 3,105 100%
TOTAL 13,448 41.4% 19,071 58.6% 32,519 100%

Chart 7 Occupants Killed or Injured In 2002
By Injury Severity, In Passenger Vehicles

  Injury Severity
Age Group Killed Incapacitating* Non-
incapacitating
Possible Injury Injury Severity Unknown Total Injured Total
0-4 459 6,588 15,552 35,602 783 58,525 58,984
5-9 400 7,038 21,087 42,822 758 71,705 72,105
10-15 926 12,569 34,745 74,536 1,062 122,912 123,838
16-20 5,625 56,053 149,645 266,200 4,167 476,065 481,690
21-24 3,676 35,973 89,255 166,995 3,302 295,525 299,201
25-44 9,888 99,504 227,077 595,110 7,912 929,603 939,491
45-64 6,300 57,286 118,747 343,343 3,711 523,087 529,387
65-74 2,140 13,343 32,042 65,376 391 111,152 113,292
75+ 3,105 14,604 28,096 49,983 422 93,105 96,210
TOTAL 32,519 302,957 716,246 1,639,968 22,507 2,681,678 2,714,197

*An incapacitating injury is any injury, other than a fatal injury, that prevents the injured person from walking, driving, or normally continuing the activities the person was capable of performing before the injury occurred.

It should be noted that 4,563,000 cases were reported by emergency departments to the CDC classified as "autmobile injury" in 2000.

According to Federal Highway Administration statistics for 2000:

  Fatal Crash Occupant Statistics by Restraint Use
restraint use Survived Percent Killed  Percent Total Percent
yes 31,328 73% 11,622 27% 42,950 52.4%
no 13,985 44% 17,672 56% 31,657 38.6%
unknown 4,742 64% 2,616 36% 7,358 8.9%
TOTAL 50,055 60.3% 31910 39.6% 81965 100%

  Vehicle Occupant Statistics by Restraint Use 
restraint use Uninjured Percent Injured  Percent Total Percent
yes 2,114,000 47% 2,351,000 53% 4,465,000 81.4%
no 152,000 30% 359,000 70% 511,000 9.3%
unknown 311,000 61% 199,000 39% 511,000 9.3%
TOTAL 2,577,000 46% 25503559 54% 5487000 100%

Given that there are an estimated 296 million people in the U.S.A., according to the above statistics, the probability for any person in the U.S.A. to be an occupant of an automobile accident by random chance in any arbitrary year would be 5487000/296000000 (or 98.1463% against).  However, over the course of 80 years, random chance suggests 77.62% chance for the event to occur at least once during that time.  The above data (2351000/5487000) shows there's a 57.15% chance against those involved in an accident and wearing a seat belt from being injured.  So the risk to the any member of the population at large amounts to 1.853 * 42.85 (or 99.2% against).  However, over the course of 80 years, random chance suggests 57.35% for that event to occur.   And finally, the probability that, by chance, one will be injured in an automobile accident (while wearing a seat belt), and the injuries being fatal amounts to (11622/3191) * 42.85 * 1.853  (or 10723:1 against).  However, over the course of 80 years, this becomes almost a 1% certainty.

Perhaps my statement of virtual certainty of an injurious accident during one's driving career was a bit over-zealous, in that the great likelyhood exists within one's lifetime.  However, I rest on my original, and subsequent (this) posting that the preponderance of chance is precisely what I stated, and that furthermore, the likelyhood of injury (based on the statistics for unrestrained motor vehicle occupants) much greater.  I'll concede that the statistics presented appear to show a higher incidence (compare incidence w/ prevalance) of injury, but what would the fatality statistics be if but for the restraints?



288 posted on 08/14/2005 1:34:28 PM PDT by raygun
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To: Integrityrocks
I agree with you on those occasional drinkers (also the habitual knee-walking drunk). I'd like to see the BAC scrapped and changed to a reaction time differential test. This gets drunk,potheads etc. as well as the "a tea-totaler with dangerously slow reaction time" off the roads.
289 posted on 08/14/2005 1:47:49 PM PDT by smug (Tanstaafl)
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To: smug
Something has to be implemented that's going to either address the core of the problem (the prevelance of people getting hopped up), or how to differentiate those who are hopped up but pose no risk and those who actually are hopped up and actually are impaired. The solution should be able to catch OTC cold-remedy users too. Clearly in our liberal, litiginous society, the issue of "damage to another" is without merit. I believe that to be an aspect of the "legal system" and not actually part of the problem. If they treated those who caused injury to others akin to the murderers that they actually are, there may not be as much contention. However, I believe the liberal part of our society that makes the excuses necessary to perpetuate this travesty.

Akin to the most famous statement that, "all it would take to make the world's greatest evangelist is for anybody to spend five seconds in hell", all it would take would be to experience a loved one taken from you by a most excellent repeat existing alchohol-prohibiting law offender getting of "scott free." And to that thought I hang my head in shame (not because I'm guilty of that), becuase I've been there.

Anybody who has ever been accused of an alchohol related traffic offense had better wake up; it's most likely their best last chance.

290 posted on 08/14/2005 2:07:38 PM PDT by raygun
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To: GraceCoolidge
My primary concern with lowering the BAC so much is that it will reduce the social stigma that I believe has been a helpful factor in reducing DUI. I recall, growing up, that driving drunk was not a big deal, a "boys will be boys" type of thing to most people. Now it seems that most people are judgmental about it; I think it's good that social pressure also has been brought to bear to reduce the incidence of DUI. If, however, the BAC keeps getting lowered to the point where nearly everyone could be busted for DUI, where the crime becomes more common again, I think there's the risk of the "everyone does it" attitude returning.

*** DING DING DING *** No more calls; we have a winner!

291 posted on 08/15/2005 6:28:35 AM PDT by steve-b (A desire not to butt into other people's business is eighty percent of all human wisdom)
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To: Rodney King

"Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with." ('Atlas Shrugged' 1957)


292 posted on 08/15/2005 10:29:12 AM PDT by CSM ( If the government has taken your money, it has fulfilled its Social Security promises. (dufekin))
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To: Rodney King
Cops could arrest these guys left and right by waiting outside bars at midnight.

I've never understood why they don't do this. There are streams of extremely drunk people hopping in their cars and driving home from every bar every night.

293 posted on 08/15/2005 10:32:43 AM PDT by Junior_G
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To: Rodney King

"The standard I set for myself is 2 beers in one hour, or 4 beers in 2 hours."

You should be very, very careful. It could be as few as 2 beers in 2 hours and you'd hit .08 BAC. There are way to many variables involved to ever be certain.


294 posted on 08/15/2005 10:38:36 AM PDT by CSM ( If the government has taken your money, it has fulfilled its Social Security promises. (dufekin))
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To: Rodney King

According to the Drink Wheel, I could have 5 pints (16 or 20 oz? How strong?) of beer over 2 hours and still be just a hair over the limit (.085 BAC). I can tell you from personal experience that after 5 pints (18 oz, I think) of 5% alcohol beer (v/v) in a 2-hour period that I am really not in any condition to be driving. So, to my point of view, a cut off of a .08 BAC seems quite generous, actually.


295 posted on 08/15/2005 10:49:26 AM PDT by -YYZ-
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To: raygun
15 years ago, I lost a 21 year old son to a drunk driver. I have no sympathy for those who drive drunk. There is no excuse for driving impaired. Get a designated driver, take a cab, drink at home, drink responsibly, etc.
296 posted on 08/15/2005 10:50:36 AM PDT by phil1750 (Love like you've never been hurt;Dance like nobody's watching;PRAY like it's your last prayer)
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To: Rodney King

ps, I also agree that the penalties for DUI should be geared towards the level of intoxication - someone just barely over the limit should not be punished nearly as harshly (I'd suggest a shortish license suspension would be appropriate) as someone who is at 2 or 3 times the legal limit behind the wheel.


297 posted on 08/15/2005 10:51:31 AM PDT by -YYZ-
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To: Integrityrocks
I would like to see the BAC raised back to at least .10

Me too, but that would be akin to the government repealing a tax that has been previously instituted....never happen.

298 posted on 08/15/2005 10:54:10 AM PDT by 1Old Pro
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To: Nightshift

ping


299 posted on 08/15/2005 11:05:32 AM PDT by tutstar (OurFlorida.true.ws)
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To: P-Marlowe

The burden would then shift to show that even though you exceeded the legal limit, you were not ACTUALLY intoxicated. In other words, the law provides an out for the guy who can handle his liquor.



How do you propose that a person prove they were not actually intoxicated? All it takes to have presumed guilt in your scenario is the police officers word. Period.

How do police officers get promoted? Prosecutors? And the one person not familiar with the system is supposed to be able to prove their innocense......


300 posted on 08/15/2005 12:12:51 PM PDT by CSM ( If the government has taken your money, it has fulfilled its Social Security promises. (dufekin))
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