The linked article asserts that Virginia, like “all states,” enacted a statute which provides that "it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense" if a breath test reveals that the driver’s blood alcohol content is at least 0.08. That isn’t true; some states permit, but do not require, the presumption. Virginia law creates a “rebuttable presumption” by directing a judge or jury to conclude that the defendant is under the influence unless the defendant proves that her ability to drive safely wasn’t impaired. It is that shift of the burden of proof on an element of the offense (impairment) from prosecution to defense that the judge finds constitutionally troubling.
O'Flaherty said that he was not disregarding blood alcohol results and that he allowed them as evidence when they were properly obtained. But he said alcohol affects people in different ways, so presuming someone with a .08 blood alcohol content is drunk might not be correct.
In addition to prohibiting impaired driving, Virginia makes it a crime just to drive with a blood alcohol concentration in excess of 0.08. That crime does not require proof of impairment, and the presumption of impairment would not apply to prosecutions for driving with a prohibited alcohol concentration (PAC). It’s unclear from the linked article whether Judge O’Flaherty believes the part of the law prohibiting driving with a PAC is also unconstitutional. He might believe that there’s no rational purpose underlying the PAC law (since many drivers at 0.08 will not be impaired), but the linked article appears to address only prosecutions in which the government seeks to prove actual impairment.
Judge O’Flaherty is bold in his assertion that other judges lack the courage to adopt his reasoning.
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.' "
(It must be fun to tell a judge "You should be driving a truck." Not recommended for practicing lawyers.)
Even if his colleagues won’t join him, some legal scholars who have reviewed Judge O’Flaherty’s analysis think he has a point.
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."
M.A.D.D., of course, has never favored fair laws in drunk driving cases, because laws that require prosecutors to prove actual impairment increase the chance of an acquittal. M.A.D.D. hates acquittals, and has lobbied legislatures for years to stack the deck in favor of prosecutors. M.A.D.D. accuses Judge O’Flaherty of “putting drunk drivers back on the road,” an accusation that assumes the drivers (none of whom were convicted) were actually drunk.
It will be interesting to watch M.A.D.D. vilify a judge who is apparently respected and well-liked. And who wouldn’t like a judge who pitches in by raking leaves at the courthouse?
He often helps direct people to their courtrooms in the chaotic mornings, and he could be seen raking and blowing leaves from the courthouse's front plaza in autumns past, before a construction project closed the plaza.
