As regular readers know, I’ve railed in past posts about the "DUI Exception to the Constitution" — the willingness of legislatures and judges to ignore the Bill of Rights in drunk driving cases.  Examples of this are the presumptions of guilt that apply in all 50 states, as I pointed out in a post entitled "Whatever Happened to the Presumption of Innocence?".

In yesterday’s news is a story about a judge who has apparently had enough and has decided to start following the Constitution in DUI cases:

Va. Judge Disputes Constitutionality Of DUI Law

District Court Judge Dismissing DUI Cases

Fairfax, Virginia – A Fairfax County judge 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.

A Virginia state trooper sent News4 an e-mail saying police are upset about the dismissals. Fairfax County Commonwealth’s Attorney Robert Horan confirmed that the judge is ruling against prosecutors, making it harder to get drunken drivers off the road.

The judge is challenging one of the powers police and prosecutors rely on for arrests and convictions: the results of breath tests given to suspected drunken drivers. Virginia law says that anyone with a blood alcohol content level of 0.08 percent or more is presumed to be driving under the influence of alcohol. It is then up to the driver to rebut the presumption or prove he or she wasn’t drunk.

O’Flaherty began dismissing DUI charges two weeks ago, ruling that the law is unconstitutional because the burden of proof in all cases rests with the prosecutor and this law puts the burden on the defense.

It is interesting that the prosecutor’s main objection to the rulings was that it was "making it harder to get drunk drivers off the road" — not that the judge was legally wrong.

To explain a bit further the basis for the judge’s ruling, the following is excerpted from my earlier post "Whatever Happened to the Presumption of Innocence?":

In most countries of the world, an accusation by the State forces the accused to prove himself innocent. In America, however, the presumption of innocence has always been a fundamental part of our rights as a free people. This basic protection against the power of the government has been recognized as flowing from the 5th, 6th and 14th Amendments to our Constitution. As the United States Supreme Court has said, "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." Coffin v. U.S., 156 U.S. 432 (1895)….

Let’s assume you have been arrested for drunk driving, and a Breathalyzer gave a reading of .09% blood-alcohol concentration (BAC). You will be charged with two crimes: (1) driving under the influence of alcohol (DUI), and (2) driving with over .08% BAC. Let’s look at the .08% charge first…..

[Discussion of legal presumptions that the machine is accurate and that the officer administered the test correctly.]

…So much for the .08% charge.  At least the defendant is presumed innocent of the DUI charge, right? Wrong. The laws of most states create a presumption of guilt: if the Breathalyzer reads .08% BAC or higher, the jury will be instructed that the defendant is legally presumed to be under the influence of alcohol. That’s right: the defendant is presumed guilty. This is called a "rebuttable presumption" — that is, the defendant can try to rebut this presumption with other evidence (what other evidence?). Put another way, he is presumed guilty and the burden is on him to prove his innocence. Just like in third world countries.

Ok, but the law says it’s illegal to have .08% BAC when driving — not when tested an hour later at the police station. If, for example, a person has a drink or two before driving, the alcohol will not be absorbed into the system for an hour or so: it will not be in his system while driving, but will be reaching peak BAC levels when tested an hour later at the station. So how does the prosecution prove what the BAC was at the time of driving?

Easy: the law again facilitates conviction by presuming that the BAC was the same, so long as the test was taken within three hours of driving….Well, now, that’s really amazing. The Legislature simply passed a law against scientific truth. We can absolutely say, with scientific certainty, that the BAC will NOT be the same three hours after the test…..