JUDGE POURS COLD WATER ON DUI LAW
Virginia Jurist Finds an Unconstitutional Presumption of Guilt

BY MARGARET GRAHAM TEBO

The art of law, some say, is in applying well-settled principles to new fact patterns and figuring out whether they match. A judge in Virginia looked at the state's driving-under-the-influence law and found a match with a 20-year-old U.S. Supreme Court homicide case about impermissible mandatory presumptions of guilt.

Judge Ian O'Flaherty's ruling in Fairfax County, Va., resulted in the dismissal of at least two DUI cases and caused lawyers on both sides of the DUI bar to take notice across the nation. Most states have DUI statutes substantially similar to Virginia's.

Virginia's law refers to "driving while intoxicated," while some states refer to the offense of "driving under the influence" and others use the term "driving while impaired." But all states make it illegal to drive with a blood alcohol level of .08 percent or more.

"I was really thrilled," says Edward L. Fiandach, dean of the National College for DUI Defense, based in Montgomery, Ala.

"It clearly set forth what we've been saying for a long time. The .08 statutes create an irrebuttable presumption of guilt in violation of the due process and equal protection clauses of the U.S. Constitution," says Fiandach, who defends DUI cases in Rochester, N.Y.

The rest of the article

I've read the whole thing twice and I'm still scratching my head. Anyone have any thoughts on this?

I don't know the exact test of Virginia's DUI law. However, the way the Texas law is written, I don't think any constitutional issue exists. A state can pass a law that says "you may not possess or use cocaine." Similarly, a state can pass a law that says "you may not operate a motor vehicle in a public place with a blood alcohol concentration of 0.08 or higher." This is essentially what Texas law states. The state is free to define "intoxication" for purposes of operating a motor vehicle, watercraft, etc. at what ever level it chooses. For that mannter, a state could pass a law that says that a person may not operate a motor vehicle in a public place with a blood alcohol concentration of 0.02 (or 0.04 or any other level the state selects), and not even mention the word "intoxication." This is what some of the European nations have done: 0.04 in France, 0.02 in at least one of the Scandinavian countries.

Perhaps Virginia's law provides the presumption that a person is presumed to be intoxicated if the persons's BAC is 0.08 or higher as shown by a blooc alcohol test performed with X number of hours after driving.

Janette Ansolabehere

"Perhaps Virginia's law provides the presumption that a person is presumed to be intoxicated if the persons's BAC is 0.08 or higher as shown by a blooc alcohol test performed with X number of hours after driving."

That's what I was trying to figure out. The article doesn't mention what the law actually IS, so I couldn't figure out exactly how it would be unconstitutional. I thought I'd see what the collective wisdom of the TDCAA boards thought.

this is the same judge involved in this thread
https://tdcaa.infopop.net/eve/forums?a=tpc&s=347098965&f=157098965&m=366109333

I suspect that the article you cite is just badly written and this story is about the 3 hour rule, not really the .08. Either that or Judge O'Flaherty thinks lots of DWI laws are unconstitutional.

Looks like it's the same case. Sorry for the duplicate thread, then. Thanks for the redirect.

If I remember correctly, Arizona has a law that the it is an offense if you operate a vehicle in a public place and your have a BAC of 0.08 or higher as shown by a chemical test taken within two hours of driving. It is not a presumption like in most states. It's the offense. It does have a provision that the person can show that he consumed alcohol AFTER he stopped driving.

Somewhere on my computer I have a chart of all DUI/DWI laws for all 50 states and the territories that I put together for our Breath Testing Bureau to use in a national conference on DUI law.

Janette Ansolabehere
DPS