State judge rules Virginia's drunken driving law unconstitutional

| Wednesday, August 17, 2005

A district judge in Virginia is dismissing cases against drivers charged with driving under the influence of alcohol.

District Court Judge Ian O’Flaherty said the law prosecutors use to convict drunken drivers is unconstitutional. O’Flaherty serves in the state’s 19th Judicial District in Fairfax, VA, which is about 25 miles southwest of downtown Washington D.C.

Virginia law presumes that someone with a blood alcohol content of 0.08 percent or higher is intoxicated. That violates the right to a presumption of innocence, according to the ruling O’Flaherty wrote when he dismissed charges against at least two alleged drunken drivers last month.

Corrine Magee, a defense attorney who first successfully argued the issue before O’Flaherty, said Virginia’s law presumes the blood-alcohol level at the time the test is given is equal to the level at the time of the offense, even if the test is given hours after a driver is pulled over.

Prosecutors reportedly are now taking steps to avoid O’Flaherty on all drunken driving cases.

Patrick O’Connor, president of the northern Virginia chapter of Mothers Against Drunk Driving, told The Associated Press the judge’s 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.”

State Delegate David Albo, a defense attorney, said he sees no difference between a presumption of intoxication at 0.08 and a presumption of speeding at 80 mph.

“So far not a single judge in Virginia has ruled the other way,” he told The AP. “It’s just one judge.”

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