The following news editorial is yet another example of the prevailing view that there is a “DUI Exception to the Constitution“:

Hampton Roads, VA December 21. The law that protects the public from drunken drivers is under assault, and one of the jobs facing the General Assembly when it convenes in January is to shore it up.

The assault comes from legal eagles who have hit on a way to attack the law that threatens to put their clients, accused of drunken driving, away. The law is written so driving with a blood alcohol level of 0.08 or above is illegal – in other words, the law presumes that anyone with a BAC that high is impaired.

This is a good presumption, based on tons of empirical data. But this summer, a lawyer in Fairfax County dreamed up a new defense: the application of an obscure 1985 Supreme Court ruling that says prosecutors must prove all elements of a crime. The lawyer got General District Court Judge Ian O’Flaherty to buy the argument that the presumption of impairment at a BAC of 0.08 runs afoul of this ruling by relieving prosecutors of the obligation to prove impairment. Instead, the law presumes guilt based on blood alcohol reading and shifts to the defendant the burden of proving he was not impaired, denying the constitutional presumption of innocence until proven guilty….

O’Flaherty also has doubts that the results of a breath test 90 minutes or more after a driver is picked up represent the blood alcohol level while actually driving. Throwing out the well-established scientific evidence that a BAC of 0.08 or above constitutes impairment gives drunken drivers a free ride. It puts them back on the street with no punishment….

Last year, 343 people died in vehicle accidents involving alcohol in Virginia, and 7,911 were injured. These are not legal technicalities….

The arguments that these despicable “legal eagles” are making are perfectly valid, as I have repeatedly discussed in past posts (Whatever Happened to the Presumption of Innocence?):

(1) The presumption of innocence that is a cornerstone of our constitutional protections does not permit the law to require a defendant to prove his innocence simply because a highly unreliable machine says his blood-alcohol level is .08% or higher. By way of example, would a defendant be required to prove he is innocent of burglary if fingerprints were found on the window sill of the house?

(2) Similarly, it is a scientific fact that blood-alcohol levels do not remain constant: they rise for anywhere from 1/2 hour to 4 hours after ingestion, and then begin to dissipate — so why a legal presumption that the level was the same when driving three hours before testing?

In fact, why is a legal presumption necessary at all? Why not simply provide the evidence of blood-alcohol analysis, let the experts testify to what that means, and then let the jury decide — exactly as it was done years ago before MADD began getting new laws passed which greatly facilitated convictions?

The writer of the editorial claims that this is “a good presumption, based on tons of empirical data” (none of which is mentioned). If so, why not just present that data to the jury?

Answer: Because it isn’t so. The simple fact is that no two humans are alike — and we each vary in our individual tolerance to alcohol. And “tons of empirical data” have clearly established this; one person is intoxicated at .07% while the next is unimpaired at .12%.

Problem: How does a prosecutor prove what a defendant’s individual tolerance is? He can’t. Solution: Pass a law saying he doesn’t have to — the defendant has the burden of proof.

Incidentally, recognizing constitutional rights in this instance certainly does not “give drunken drivers a free ride”. Any person with a test result of .08% or higher will almost always be charged with two crimes: (1) driving under the influence, and (2) driving with .08% or higher. Because of the “DUI Exception”, this gives the prosecutor two shots at a citizen accused of drunk driving: If he loses on the DUI charge, he can still win on the .08 charge — and since a defendant cannot be punished twice, the end result is no different. (The individual who wrote the editorial, by the way, exhibits the ignorance so typical of the MADD-driven media. He writes that “The law is written so driving with a blood alcohol level of 0.08 or above is illegal – in other words, the law presumes that anyone with a BAC that high is impaired.” In fact, “the law is written” so that there are two separate laws, as explained above, and the blood-alcohol level results in a presumption of impairment in only one; in the other, the blood-alcohol level is the crime.)

(Thanks to David Teddy of North Carolina.)