Dismissals of Drunk Driving Cases Jolt DUI Lawyers

By Jamie Stockwell and Tommy Nguyen
Washington Post Staff Writers
Saturday, August 13, 2005

“…denies a defendant’s right to the presumption of innocence” rules Judge

It was a creative legal argument — perhaps brilliant, some said —
and after a brief reflection, a Fairfax County judge bought it, declaring
that key components of the state’s drunken driving laws are
unconstitutional.

In a decision that could prompt similar challenges nationwide, Judge
Ian M. O’Flaherty cited a decades-old U.S. Supreme Court ruling when in
the past month he dismissed charges against three alleged drunk
drivers.

O’Flaherty, one of 10 judges who preside over traffic cases in Fairfax
County District Court, ruled that Virginia’s law is unconstitutional
because it presumes an individual with a blood alcohol content of 0.08 or
higher is intoxicated and denies a defendant’s right to the presumption
of innocence.

As a district judge, O’Flaherty does not establish formal precedent
with his rulings. But reports of the constitutional argument have quickly
found their way onto Web logs and into the offices of defense attorneys
and prosecutors across the country, prompting some to explore tactics to
exploit or attack the Fairfax decisions.

“There will be similar motions everywhere, no doubt about that,” said
Steven Oberman, chairman of the DUI defense committee at the National
Association of Criminal Defense Lawyers. “There are lawyers everywhere
who are looking at this issue again in a different light.”

A lot will depend on each state’s interpretation of its drunken
driving laws, Oberman added, and whether a person with a 0.08 blood
alcohol level is presumed, by law, to be intoxicated. If so, as is the
case in Virginia, other elements must still be proven, including whether
the defendant also failed a roadside sobriety test.

Corinne Magee, the attorney whose challenge of the state’s drunken
driving law led to O’Flaherty’s ruling, said the decision was based on
the 1985 U.S. Supreme Court case Francis v. Franklin , which dealt with a
prosecutor’s obligation to prove all elements of a crime beyond a
reasonable doubt.

After closely reading the decision, Magee said she realized that it
could apply to the state’s drunken driving laws.

“I expected him to convict on other evidence in the case,” Magee said
of O’Flaherty, who presided over the case in which her client was accused
of driving with a blood alcohol content of 0.21, more than twice the
legal limit.

“I was surprised when he dismissed the case . . . but I think it was
based on a very careful reading of the Francis case.”

Magee said she was troubled by the law because it presumes
intoxication at 0.08 and that the driver was at that level while driving,
even if the test was administered hours after the driver was stopped. She
said a person’s blood alcohol level can fluctuate depending on when the
last drink was consumed and how that person’s body metabolizes
alcohol.

But prosecutors, and even some defense attorneys, disagree, and said
yesterday that laws in the 50 states that have established a presumption
of intoxication at 0.08 have been upheld even when similar arguments were
raised.

“If this ruling became the law of the land, it would be devastating
for all DUI cases,” Fairfax County Commonwealth’s Attorney Robert F.
Horan Jr. said. “For all these years, it has passed muster, and now one
judge has decided it doesn’t. “Our hope is to get it through to circuit
court and let it play out and go from there.”

Moreover, Horan said, O’Flaherty misinterpreted the obscure and rarely
cited 20-year-old case. Because of carefully phrased statutes, defendants
in drunken driving cases have to prove they were not intoxicated, he
said.

Because prosecutors can appeal only cases dismissed by a circuit court
judge, Horan said his office plans to prosecute three other DUI cases in
circuit court.

O’Flaherty did not return a call seeking comment.

A. E. Dick Howard, a constitutional law professor at University of
Virginia, said O’Flaherty’s ruling appears misguided, an “idiosyncratic
ruling” that if followed could “create massive upheaval and seismic shock
in courtrooms across the country.”

“I think the Francis case simply does not apply, not like this,”
Howard said.

Patrick O’Connor, president of the Northern Virginia chapter of
Mothers Against Drunk Driving, said he was not aware of any other state
judges who have made similar decisions. O’Flaherty’s ruling, he said,
undermines the work of law enforcement and prosecutors to keep drunk
drivers off the roads.

O’Connor, whose son was killed three years ago in a crash caused by a
driver who had a blood alcohol content of 0.15, said he would have been
devastated if that driver had not been prosecuted.

“In that case, if they had thrown out that evidence as
unconstitutional, then there would have been no consequence for that
driver’s action,” he said.

“I’d be angry . . . at the thought that someone could drink and drive,
take a life away and possibly walk free, when all the health and medical
evidence support that a driver with .08 is impaired to drive.”

Source:
Washington Post

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