Monthly Archives: January 2006

DUI Cases Thrown Out in Virginia: Update

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.

Attempted Suicide Convicted of DUI

Some days nothing goes right….

London, England  A motorist tried to commit suicide by driving over a cliff – only to be prosecuted for drink driving.

John Corner was suffering from depression when he headed to the rockface with lots of alcohol. He parked close to the edge, had a drink to summon up courage and drove straight for the precipice. But his car stopped just inches from disaster after hitting a fence. He was found by police close to the scene and was arrested – for drunk driving the short distance from where he had stopped to the edge of the cliff…

Mr. Corner, believed to be from Southend-on-Sea, Essex, won his appeal on the grounds he was not a danger to other road users while driving towards the cliff’s edge. 

Apparently, police in England have about the same degree of common sense and compassion as their brethren in America.

(Thanks to Richard Diamond.)

The Return of the Scarlet Letter

This latest development from the folks who brought you the Scopes trial:

Tennessee Law Shames Drunken Drivers

Unique law, which goes into effect Sunday, has some critics

Nashville, TN (AP/CNN). A new Tennessee law is enlisting the power of shame to discourage drunken driving — even the governor, law enforcement officials and various experts are calling it an expensive and bad idea.

Starting Sunday, convicted drunken drivers are required to do 24 hours of roadside cleanup while wearing orange vests emblazoned with the phrase "I am a Drunk Driver."… The new law is aimed at first-time offenders, says one of its sponsors, state Rep. Charles Curtiss.

"You cause them to go out and pick up trash in front of their friends and neighbors, the embarrassment is going to be such that they're never going to want to go through that again," Curtiss said….

Apparently, rapists, child molesters and wife beaters don't qualify for Tennessee's new humiliation approach.

(Thanks to Troy Hauser.)

Judge: DUI License Suspension Hearings “Unacceptable”

Some time ago, I wrote about the blatantly unfair procedures used to suspend licenses in DUI cases ("Due Process and Automatic DUI License Suspensions"). I pointed out that the arresting officer is the judge, jury and executioner: He confiscates the drivers’s license from the person he arrests and issues them a "Notice of Suspension" which legally serves to immediately suspend the license.

This presumption of guilt and execution of sentence by the officer has been held to afford "due process" since the driver has a "right" to appeal the summary suspension to the Department of Motor Vehicles. Using California as a fairly typical example, a demand for hearing must be made to the DMV within ten calendar days; if a demand is not made before the eleventh day, the right to appeal is lost.

The hearing is held by telephone or in a small room at the state DMV offices. The driver can be present with his attorney; the arresting officer will probably not be present for cross-examination, as hearsay documents like the arrest report are admissible and usually constitute the DMV’s entire case. In addition to the driver, a hearing officer is present. This "hearing officer" has no legal training, may have nothing more than a high school diploma, and is an employee of the DMV — that is, the same agency that wishes to uphold the suspension.

The DMV’s prosecutor will present the evidence, usually consisting of the hearsay documents, leaving the citizen’s attorney with nothing to cross-examine — unless he subpoenas the officer himself and pays his overtime salary. The citizen can then testify or present other evidence.

Oh, yes, one other thing: the hearing officer and the prosecutor are one and the same person. That’s correct: the high school graduate will prosecute and then pass judgment. He will present his case to himself. This individual with no knowledge of the rules of evidence will rule on objections raised by the citizen’s attorney. And, of course, as prosecutor he can make his own objections to the citizens’ evidence — and then, as judge, rule on them. Not surprisingly, the prosecutor/hearing officer usually wins. And this is called "due process" in America.

Finally, however, a real judge has come along who is apparently unafraid of the political consequences from MADD (mainly because he’s retiring soon) and recognized the process for what it is:

Broward judge: Hearing officers don’t have legal knowledge to take away licenses

Ruling could affect state’s drunken driving cases

Broward County, FL Dec. 30. The way state regulators strip licenses away from those charged with drunken driving is "fundamentally wrong" and "constitutionally unacceptable," Broward Circuit Judge J. Leonard Fleet ruled Thursday… For years, hearing officers with no legal experience, and some with only a high school diploma, decided whether motorists’ driving privileges should be restored as they await trial.

To offset their lack of legal knowledge, the 71 judge-like officers across the state depended on attorneys provided by the state motor vehicle department to explain legal jargon… "These people have no idea what to do without lawyers telling them what to do," (defense attorney) Fields said. "They don’t know what the hell they’re doing. They’re not lawyers."

In one of his final rulings before retiring, Fleet said it was a conflict of interest for hearing officers, whose duty it is to act as impartial judges, to be advised by attorneys working for the department that is attempting to strip away driving privileges. Fleet barred all hearing officers in Broward County from conferring with their staff attorneys…. At issue now is how hearing officers with no legal background will be able to rule on appeals from drivers attempting to get their licenses back.


No problem. Apparently, the only difference between California and Florida is that the hearing officers in California have never had access to Department attorneys with whom to consult. They don’t need it: they’re high school graduates.

(Thanks to Michael Kessler.)

Virginia Law: Can Arrest for DUI if ANY Alcohol Present

The police cannot arrest you for a crime unless they have objective probable cause to believe that you commited the crime, right?

Well, not necessarily…. Let's take a look at Virginia's drunk driving laws [18.2-267(D)], which clearly state:

Whenever the breath sample analysis indicates that alcohol is present in the person's blood, the officer may charge the person with a violation of §§ 18.2-266, 18.2-266.1 or § 18.2-272, or a similar ordinance of the county, city or town where the arrest is made. [The numbers indicate the crimes of driving with .08% or under the influence of alcohol and/or drugs.]

In other words, if you have any measurable amount of alcohol in your body — even less than .01% — the officer can arrest you for driving under the influence (without any evidence that you are under the influence) or over .08% (depite clear evidence that you are not). How can they do that? Simple: What I have referred to over the years as "The DUI Exception to the Constitution"….

(Thanks to Virginia attorney Mike Tillotson, who is appealing the statute on constitutional grounds.)