A few weeks ago I posted about a courageous Virginia judge who was throwing out DUI cases because he found the state’s presumptions of guilt to be unconstitutional. It was a violation of the Constitution’s presumption of innocence, he ruled, to presume that (1) the defendant is guilty of driving under the influence of alcohol if the breath machine’s reading was over .08%, and (2) the blood-alcohol level was the same at the time of driving as when tested an hour or two later. These patently false presumptions and insidious violations of the Constitution are found in all 50 states, as I pointed out in an earlier post entitled “Whatever Happened to the Presumption of Innocence?”.
A higher court in Virginia has now reviewed the ruling. In essence, the higher judge found the statute itself to be constitutional — but further held that guilt could not be conclusively presumed, only inferred. Such a presumption, the judge wrote in his opinion, would “diminish the requirement of the state to prove a defendant’s guilt beyond a reasonable doubt”.
However, the judge went on, the statute itself is not unconstitutional if the presumption is viewed as a permissive one, rather than conclusive. In other words, the defendant should be permitted to produce evidence that he was not under the influence of alcohol when driving. The higher court judge found that the existing instructions to the jury were constitutionally impermissible and must be changed: the jury should be told that they were permitted to find the defendant not guilty if the totallity of evidence raised a reasonable doubt as to whether he was, in fact, under the influence at the time of driving.
All of which should seem obvious, and is the law in most states. But the very existence of this and other laws designed solely to facilitate convictions in DUI cases continues to be an insult to basic notions of fairness and to the Constitution itself.