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Thursday, October 27, 2005

Law - Interesting position taken by Virigina judge in DWI cases

"Maverick N.Va. Judge Tosses Out DWI Cases That Presume Guilt" is the headline to this story in the Washington Post. It begins:

A Fairfax County judge who believes Virginia's drunken driving laws are unconstitutional has begun dismissing cases, including five DWI cases in a week, and has threatened to throw a veteran prosecutor in jail for arguing with him.

Judge Ian M. O'Flaherty made it known in July that he felt Virginia's DWI law unfairly deprived defendants of the presumption of innocence if breath tests showed that they had a blood alcohol content of .08 or higher, levels at which people are presumed to be intoxicated.

"We've been really racking our brains, trying to come up with some solution to it," said Robert F. Horan Jr. (D), the county's longtime chief prosecutor. "It's a crazy situation. He is, for all practical and legal purposes, the Supreme Court of Virginia in these cases, even though, on the Supreme Court, it would take four of him" to issue a majority opinion invalidating a statute. * * *

The judge said in an interview that he recently was made aware of a 1985 U.S. Supreme Court ruling that reversed a Georgia murder conviction because the jury had been told to presume that, if the suspect was "of sound mind," he had the intent to kill.

As it does in all states and the District, Virginia's drunken driving law states that, for anyone with a .08 or higher reading on a breath test, "it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense."

Prosecutors point out that Virginia's law creates a "rebuttable presumption," meaning the defendant has the opportunity to prove it wrong. But O'Flaherty said that wrongly shifts the burden of proof from the prosecution to the defense.

"The Fifth Amendment," said O'Flaherty, 59, "is an absolute protection against requiring the defendant to say or do anything in the course of a trial. . . . The Fifth Amendment means the defendant can sit there, not say or do anything, and at the end of the case say, 'Can I go home now?' "

No other judge in Fairfax -- or elsewhere in Virginia, as far as can be determined -- has joined O'Flaherty. But the judge said some other jurists have told him they agree with him. "I had one judge tell me, 'I'd rule that way, but I don't have the guts to,' " O'Flaherty said. "I told him, 'You should be driving a truck.' "

Prosecutors cannot appeal a case that they have lost at trial at the General District Court level, so they began requesting that charges be dropped before cases went to trial in O'Flaherty's courtroom. O'Flaherty began denying those requests this month.

At least two cases could move toward a state Supreme Court ruling. Both were cases that prosecutors pulled from O'Flaherty's court and then indicted in Circuit Court. One will be tried today in Fairfax Circuit Court.

"This is a public safety issue," said Pat O'Connor, president of the Northern Virginia chapter of Mothers Against Drunk Driving. "My concern is that this judge is putting drunk drivers back on the road, based on a decision that none of his peers have seen fit to agree with."

The judge does have support from some in the legal community.

Ronald J. Bacigal, a criminal law professor at the University of Richmond, said of O'Flaherty: "I think he's exactly right. There are U.S. Supreme Court cases saying you can't relieve the government of proof beyond a reasonable doubt, which is what a presumption does."

Steve Oberman, a Tennessee lawyer and head of the National Association of Criminal Defense Lawyers' DUI committee, said similar arguments about presumptions in the law had been successful in various courts across the country over the years. State supreme courts in Massachusetts and Colorado have ruled exactly as O'Flaherty has on presumptions in drunken driving cases, he noted.

Posted by Marcia Oddi on October 27, 2005 09:44 AM
Posted to General Law Related