Va. Judge Says Parts of DWI Laws Illegal

[flyingtiger1013]

http://www.wtop.com/index.php?nid=25&sid=553221

McLEAN, Va. (AP) - A district judge has ruled that key components of Virginia's drunken driving laws are unconstitutional, citing a decades-old U.S. Supreme Court decision.

The state law presumes that someone with a blood alcohol content of 0.08 or higher is intoxicated, denying their right to a presumption of innocence, Judge Ian O'Flaherty ruled in dismissing charges against at least two alleged drunken drivers last month.

"I am sure there will be lawyers out in the field making similar arguments tomorrow," Steven Oberman, chairman of the DUI defense committee at the National Association of Criminal Defense Lawyers, said in a telephone interview Thursday.

Corinne Magee, a defense lawyer who first successfully argued the issue to O'Flaherty, said the ruling is based on a 1985 U.S. Supreme Court case that deals with prosecutors' obligation to prove all elements of a crime beyond a reasonable doubt.

Magee said Virginia's law presumes the blood-alcohol level at the time the test is taken is equal to the level at the time of the offense, even if the test occurs hours after police make a stop.

Prosecutors are now taking steps to avoid O'Flaherty on all drunken driving cases, withdrawing cases assigned to him and instead obtaining indictments that send the cases directly to Circuit Court. Prosecutors cannot appeal cases dismissed by a district court judge, but could appeal if a circuit judge makes a similar ruling.

Fairfax County Commonwealth's Attorney Robert F. Horan Jr. did not return phone calls seeking comment Thursday.

Patrick O'Connor, president of the northern Virginia chapter of Mothers Against Drunk Driving, said the decision "undermines the efforts of the police and prosecutors to enforce the DWI laws, puts drunk drivers back behind the wheel and potentially denies justice to victims of drunk drivers."

O'Flaherty declined to comment; rulings in District Court are made orally so there is no written ruling outlining his rationale.

Del. David Albo, a defense lawyer, said he sees no difference between a presumption of intoxication at 0.08 and a presumption of speeding at 80 miles per hour.

"So far not a single judge in Virginia has ruled the same way," he said. "It's just one judge."




Where was this guy when I needed him 4 years ago!;)

[Destino]

This seems like common sense to me. You shouldn't write laws that presume guilt, we don't believe in that type of law making in this country. It allows like this article says, for SLOPPY police work (ie test given late) to be swept under the rug, instead of being examined at trial.

This has to be changed now because the punishements are no long simple traffic infraction stuff ending with a ticket or short suspenision. There is jail time now and that IMO significantly raises the stakes and the standards must be raised with it.

[Thiebear]

I came in here shaking my head, but actually can't see whats wrong with that...

I think the video of the tests given should be given more credit than a .9 bac... or at least combined for an actual case...

[SkinsD]

It is an interesting argument but I sincerely hope it does not become the norm. Thousands are killed by these stupid drunks every year, imagine how bad it would be if we couldn't prosecute them...

[Destino]

Originally posted by SkinsD
It is an interesting argument but I sincerely hope it does not become the norm. Thousands are killed by these stupid drunks every year, imagine how bad it would be if we couldn't prosecute them... This doesn't mean you can't prosecute them. It just means you have to prove they are guilty and the standards of evidence can be argued in court.

[Larry]

The problem I have with the ruling is, the defense is arguing that the alcohol level at the time of the test isn't the alcohol level at the time of arrest. And they're correct. The alcohol level at the time of arrest is higher.

Unless the drunk wants to claim that he had three drinks one minute before he got behind the wheel, and he was trying to get home before they hit him.

(Go ahead, try that defense. Let me know how it works out.)

[Gichin13]

Originally posted by Larry
The problem I have with the ruling is, the defense is arguing that the alcohol level at the time of the test isn't the alcohol level at the time of arrest. And they're correct. The alcohol level at the time of arrest is higher.

Unless the drunk wants to claim that he had three drinks one minute before he got behind the wheel, and he was trying to get home before they hit him.

(Go ahead, try that defense. Let me know how it works out.)

First, your statements makes a lot of assumptions. Alcohol level at time of arrest conceivably could be higher or lower depending on when the perp ate, how much ate/drank, metabolism et c.

Second, this particular judge has done some flaky stuff before. I also believe that the "presumption" used in the statute is in fact rebuttable through testimony of sobriety and control of the vehicle. Thus, I think this is an argument that likely will not buy defendants much relief in Virginia courts besides this judge.

Third, in almost every case, there is some issue raised with the stop. The police need to demonstrate probable cause for the arrest, generally demonstrated through odor of alcohol, lack of vehicle control, then failure of various impossible field sobriety tests (trust me, even sober people constantly fail something on those tests). Such evidence is admissible on the drunkeness of the defendant as well ...

PS -- I have heard of the defense of cracking a bottle in front of other's after an accident when drunk actually working.

[Fred Jones]

I disagree with you Gichin13. The result at the time of the test is either going to be the same or lower than at the time of the arrest. From my friends have told me.

Let's say you drink three beers (guzzle them all at one time) just before you are pulled over. Let's assume you are within five minutes of the facility housing the Intoxilyzer machine. Let's say it takes only 25 minutes for the officer to determine you are drunk, place you under arrest, and dispose of the vehicle. Let's also assume that upon arrival at the facility the Intoxilyzer machine is not in use. Let's say it takes only five minutes to read the implied consent, gather all the required information and explain the test to the subject. The law states that you then have to wait twenty minutes before you can take the test. Let's throw in five minutes to process into the facility and at the very best, under the best of conditions, it is one hour from last drink to test. Now, in the real world, it is much longer. You have to:
1. Take time to park the subjects car
2. Wait for a tow truck
3. Takes time to get to drive the facility
4. Determining if the person is drunk or not many times takes longer than 20 minutes.
5. Other people maybe using the Intoxilyzer machine.
6. Ect.

Now, if memory serves me correctly, you reach equilbrium in under 30 minutes meaning you reach top alcohol level. Many factors contribute to how long you stay at that level. If you are on a full stomach, with lots of absorbing food stuffs, alcohol may get released into the bloodstream over time which means you stay at a high BAC longer. It does not necessarily mean you get more drunk. The average person reduces BAC by .015 - .018 per hour.

This judge is off the mark. Just look at the other judges in the GDC. Are they following this judge's logic?

[Goodlifer]

Isn’t the crime driving under the influence - that one is driving with a blood alcohol level above a certain limit - and NOT that they are driving while intoxicated? Intoxication is a subjective thing – a 40 of Jack is needed to get some life-long drinkers to the point of intoxication but they’ll show a decrease in their reaction time after a couple of drinks.

[SkinsD]

What about DUI vs DWI? As explained to me in drivers ed (my teacher was an idiot so this could be wrong) anyone with .01 can be charged with DUI if the officer can prove you are unable to drive as a sober person can. DWI is when you go over the set legal limit (.08 in most places).

[Gichin13]

Originally posted by Fred Jones
I disagree with you Gichin13. The result at the time of the test is either going to be the same or lower than at the time of the arrest. From my friends have told me.

Let's say you drink three beers (guzzle them all at one time) just before you are pulled over. Let's assume you are within five minutes of the facility housing the Intoxilyzer machine. Let's say it takes only 25 minutes for the officer to determine you are drunk, place you under arrest, and dispose of the vehicle. Let's also assume that upon arrival at the facility the Intoxilyzer machine is not in use. Let's say it takes only five minutes to read the implied consent, gather all the required information and explain the test to the subject. The law states that you then have to wait twenty minutes before you can take the test. Let's throw in five minutes to process into the facility and at the very best, under the best of conditions, it is one hour from last drink to test. Now, in the real world, it is much longer. You have to:
1. Take time to park the subjects car
2. Wait for a tow truck
3. Takes time to get to drive the facility
4. Determining if the person is drunk or not many times takes longer than 20 minutes.
5. Other people maybe using the Intoxilyzer machine.
6. Ect.

Now, if memory serves me correctly, you reach equilbrium in under 30 minutes meaning you reach top alcohol level. Many factors contribute to how long you stay at that level. If you are on a full stomach, with lots of absorbing food stuffs, alcohol may get released into the bloodstream over time which means you stay at a high BAC longer. It does not necessarily mean you get more drunk. The average person reduces BAC by .015 - .018 per hour.

This judge is off the mark. Just look at the other judges in the GDC. Are they following this judge's logic?

I agree that, all things being equal, the odds are the BAC will go down. Theoretically at least, it could go up.

Ultimately, this judge whiffed on the decision regardless

[Larry]

Sorry folks, to me, the only way the level can be lower at arrest than it is when tested, is if the drunk has alcohol in his stomach that hasn't been absorbed yet.

And like I said, if you want to go stand in front of a jury and claim that you'd drunk the alcohol, but you were driving because it hadn't hit you yet, then well, the jails are full of people who tried stupid defenses.

[Fred Jones]

DWI and DUI is about laws in different states. Virginia basically has two DWI laws. The standard 18.2 - 266 Driving motor vehicle, engine, etc., while intoxicated, etc. and 18.2-266.1 Persons under age 21 driving after illegally consuming alcohol. Virginia does not have a DUI law per say. The first references "such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath" and the second references "Any such person with a blood alcohol concentration of 0.02 percent or more by weight by volume or 0.02 grams or more per 210 liters of breath but less than 0.08 by weight by volume or less than 0.08 grams per 210 liters of breath".

If you are under 21, all you need to blow is a .02 to be charged under 18.2-266.1, however, the punishment for this charge is less than the punishment for 18.2-266.

[Gichin13]

This entire discussion about the rate and timing of absorbtion is irrelevant. The judge's decision was based on a SCOTUS decision that discussed presumption of innocence in criminal charges. The argument is the statutory presumption of intoxication based on the test takes away the constitutional presumption of innocence, I think.

Interesting argument, but ultimately flawed. There is plenty of scientific data showing that driving is impaired at specific BAC levels. It is a rebuttable presumption in the statute as well IIRC, but I do not do DUI work so this is not my area of expertise ...