Drunken Driving Law Challenged

Fairfax, VA – The constitutionality of the state’s drunk driving laws have been questioned by two Fairfax county
prosecutors and a judge who argue that the current law does not allow
drivers any possibility of disproving drunkenness.

General District Court Judge Ian M. O’Flaherty challenges the Virginia
state law that states that drivers with a blood alcohol level (BAC) of
0.08 or more are drunk. He also ruled that a defendant’s option to the
presumption of innocence is not established in the law.

According to a 1985 Supreme Court ruling, it is a violation of the
Fifth Amendment to require a defendant to provide defense. O’Flaherty
states that prosecutors must prove the cases, and the defendant must not
be duty-bound to act in any way.

Flaherty’s argument, which is not officially the first to make such a ruling, is being discussed among DUI attorneys and prosecutors nationwide. Defense lawyers across the country are expected to use the argument as leverage in their cases.

O’Flaherty does not approve of using blood alcohol content (BAC)
levels that are measured 90 minutes or more after arrest. Sometimes
officials determine BAC after the suspected drunk driver has been taken
to the police station, and O’Flaherty argues that this BAC is not
accurate. Since this measurement lacks precision, the evidence would thus
lack validity.

The law states that defendants can in fact use their own evidence to
defend their innocence.

County prosecutors often request that the judge dismiss DWI cases so
that they can then file an appeal. Recently O’Flaherty found some
defendants to be not guilty of DWI because he could not conclude that
they were drunk. His ruling resulted from insubstantial BAC

The inherent reliability of blood alcohol tests is questioned by the
cases, and could affect cases nationwide.

Mothers Against Drunk Drivers (MADD) finds O’Flaherty’s
ruling to be a threat to the enforcement of drunk driving laws. The group
fears that evidence will be too easily deemed as “unconstitutional.”

Attorney Kathryn S. Swart believes that defense attorneys may
cross-examine police in order to delegitimize evidence. She believes that
the Constitution does not state that a defendant must bear the burden of
providing evidence from the presumption of a blood alcohol level

October 28, 2005

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