[angelize56]

Some judges! This is setting a dangerous precedent! Seems the wrong people seem to get the right....but wrong breaks....hooray....a triumph for drunk drivers everywhere! *Shaking Head*

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."

http://www.courttv.com/news/2005/081...riving_ap.html

[angelize56]

Dismissals Of DUI Cases Jolt Lawyers
Optimism, Anxiety After Fairfax Ruling

By Jamie Stockwell and Tommy Nguyen
Washington Post Staff Writers

Saturday, August 13, 2005; Page B01

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."

http://www.washingtonpost.com/wp-dyn...1102079_2.html

[bassetman]

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.

Ang, I know a lot of cops, including our County Sheriff here, and they all say that the .08 level is ridiculus. They say the problem is the people who are over .2 and repeat offenders who have lost the lic.s.

THis part is just a "Feel good" piece of law.

[angelize56]

I have to agree with MADD and 0.8....

Why does MADD support lowering the drunk driving limit to .08 blood alcohol content (BAC)?

MADD supports lowering the illegal BAC limit from .10 to .08 percent because sound research has consistently proven that .08 is a safer place to draw the legal line. Studies show that virtually everyone is impaired at .08 regardless of the number of drinks it takes to reach that limit.

If every state passed .08, nearly 600 lives could be saved every year. MADD is not alone in its efforts to lower the legal BAC to .08: the medical community, researchers, law enforcement and an overwhelming majority of the public support .08.

http://www.madd.org/aboutus/0,1056,1273,00.html

[bassetman]

Originally Posted by angelize56

I have to agree with MADD and 0.8....

Why does MADD support lowering the drunk driving limit to .08 blood alcohol content (BAC)?

MADD supports lowering the illegal BAC limit from .10 to .08 percent because sound research has consistently proven that .08 is a safer place to draw the legal line. Studies show that virtually everyone is impaired at .08 regardless of the number of drinks it takes to reach that limit.

If every state passed .08, nearly 600 lives could be saved every year. MADD is not alone in its efforts to lower the legal BAC to .08: the medical community, researchers, law enforcement and an overwhelming majority of the public support .08.

http://www.madd.org/aboutus/0,1056,1273,00.html

How do you think they can justify getting donations if they don't have a new cause?

Wait and see, it won't be long and they want a new lower elvel and eventually a no alcohol level. But that will take awhile, because the have to milk the issue.

[angelize56]

I can't imagine them wanting it any lower...and hey...their education of teens has saved lives....

[deh]

Originally Posted by angelize56

I have to agree with MADD and 0.8....

Why does MADD support lowering the drunk driving limit to .08 blood alcohol content (BAC)?

MADD supports lowering the illegal BAC limit from .10 to .08 percent because sound research has consistently proven that .08 is a safer place to draw the legal line. Studies show that virtually everyone is impaired at .08 regardless of the number of drinks it takes to reach that limit.

If every state passed .08, nearly 600 lives could be saved every year. MADD is not alone in its efforts to lower the legal BAC to .08: the medical community, researchers, law enforcement and an overwhelming majority of the public support .08.

http://www.madd.org/aboutus/0,1056,1273,00.html

That's not very scientific; looks more like an opinion.

I'm not condoning drinking and driving, I don't drink and drive BUT alcohol effects people differently. There are people i wouldn't want driving after 1 beer. So bottom line in my opinion from things i have witnessed in life I have seen people drive at .08 or even .10 better than someone that might be .01.

Now that being said when you get up to the likes of .20 then yeah most people aren't handling that.

[angelize56]

Hi deh.....I miss your little policeman!

Read here:

http://www.madd.org/activism/0,1056,7584,00.html

[bassetman]

Originally Posted by deh

That's not very scientific; looks more like an opinion.
I'm not condoning drinking and driving, I don't drink and drive BUT alcohol effects people differently. There are people i wouldn't want driving after 1 beer. So bottom line in my opinion from things i have witnessed in life I have seen people drive at .08 or even .10 better than someone that might be .01.

Now that being said when you get up to the likes of .20 then yeah most people aren't handling that.

[angelize56]

<SNIP>All states have now passed a .08 per se law; the final law (Minnesota) will take effect in August 2005.

The BAC level is .08 in Canada, Austria, Great Britain and Switzerland.

Seventy-two (72) percent of Americans support lowering the drunk driving limit to .08 blood alcohol concentration (BAC) as an initiative to reduce drunk driving. (Independent Gallup Survey sponsored by MADD and General Motors).

With the help of MADD, .08 became federal law in October 2000, requiring states to pass a .08 BAC per se law by October 1, 2003, or face the withholding of 2 percent of their federal highway construction funds. States without the law by this date will lose an additional 2 percent of highway funds each year until 2006. Passing the law before October 1, 2007 allows the return of withheld highway funds to those states that did not pass the law before October 1, 2003.

http://www.madd.org/stats/0,1056,4588,00.html

[angelize56]

Baklava: Got something in your other eye today!

[bassetman]

Originally Posted by angelize56

Hi deh.....I miss your little policeman!

Read here:

http://www.madd.org/activism/0,1056,7584,00.html

THat is their own article.

Part of what they use as support is based on this article:
http://www.thecommunityguide.org/mvo...lc-08-laws.pdf

If you read it, it uses guesstimates on how many lives the think might be saved.

[GoneForNow]

Since this is in my backyard I have been following this case closely. The judge is way off base. The biggest flaw (among several) in the legal argument is that that driving and having a license is a privilege granted by the state, it isn't a right. Because it's a privilege the state can put any restriction on the privilege it so desires. If Virginia wanted to it could lower the BAC to .05 and still not violate any constitutional prohibitions. The state doesn't have to prove that you are impaired it only has to prove that you had a BAC at some level that constitutes a DWI as defined by the state.

[linskyjack]

I have a question---Lets say that you are hitting the bottle and you get in the car. You are involved in an accident, but you run---12 hours later you are picked up by the police because someone got your plate number. What difference will you see in your BAC 12 hours later. How long does it take the body of the average person to purge itself of the booze so that the reading will drop down to normal.>

[GoneForNow]

Originally Posted by linskyjack

I have a question---Lets say that you are hitting the bottle and you get in the car. You are involved in an accident, but you run---12 hours later you are picked up by the police because someone got your plate number. What difference will you see in your BAC 12 hours later. How long does it take the body of the average person to purge itself of the booze so that the reading will drop down to normal.>

There are several variables involved but assuming the average person you burn off an ounce an hour. Again, assuming a BAC of .08, to get to .00 is around three to four hours. Again, many variables.

I once represented a guy who had been convicted of something like 26 DWI's. Honest to God true story, while driving to Court (he didn't have a license) to be sentenced to jail on his 27th DWI he was drunk and wrapped himself around a telephone pole and finally killing himself.