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Va. Judge Declares DUI Law Unconstitutional

By Jeralyn, Section Court Decisions
Posted on Fri Aug 12, 2005 at 05:11:41 PM EST
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MADD must be having seizures. A judge in Virginia ruled the state's DUI law unconsitutional because it presumes anyone with an 0.8 blood alchohol level or higher is intoxicated.

The state law presumes that someone with a blood alcohol content of 0.08 or higher is intoxicated, denying their right to a presumption of innocence, Judge Ian O'Flaherty ruled in dismissing charges against at least two alleged drunken drivers last month.

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    Va. Judge Declares DUI Law Unconstitutional | 18 comments (18 topical)
    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#1)
    by cpinva on Sat Dec 17, 2005 at 01:02:16 PM EST
    now i find that really, really interesting. i'll tell you why. the same argument can be made with regards to speeding tickets, issued on the basis of radar. state law presumes the radar is correct, you have to prove it's wrong. how much you want to bet some attorney is drooling over this as we speak?

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#2)
    by squeaky on Sat Dec 17, 2005 at 01:02:16 PM EST
    Wow. It is constitutional to set up check points but unconstitutional to use a standard measure for intoxication.

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#3)
    by Domino on Sat Dec 17, 2005 at 01:02:16 PM EST
    Fine and dandy. Good argument. But, is this more than an academic argument? Will this be allowed to hold? Will not the arguments for the retention of the current system be coming in now? Will they not overwhelm any logic of the ruling?

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#4)
    by chemoelectric on Sat Dec 17, 2005 at 01:02:16 PM EST
    Just at first glance, this doesn't seem to me to be the same as radar and speeding. The issue here is not whether the alcohol concentration was measured correctly, but whether the concentration is a reliable way to tell if a person is sufficiently intoxicated to be enough of a driving hazard to convict of DUI. The legal issues here are beyond my ken. Whatever rules one comes up with are going to be arbitrary in some fashion, anyway.

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#5)
    by Patrick on Sat Dec 17, 2005 at 01:02:16 PM EST
    my 2 cents is this isn't going to last. There's no presumption of guilt, just intoxication. Besides, it doesn't say you have to be knee walking drunk, it just says you can't drive with a BAC of over .08%. That's the crime, driving under the influence, not necessarily DWD.

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#6)
    by Sailor on Sat Dec 17, 2005 at 01:02:16 PM EST
    cpinva, been done and just like BAC meters they are calibrated. (Too many cases lost before for that exact reason.) I personally wished he had held it unconstitutional because a person can't be compelled to give evidence against themselves and that searches must have probable cause.

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#7)
    by BigTex on Sat Dec 17, 2005 at 01:02:16 PM EST
    [S]tate law presumes the radar is correct, you have to prove it's wrong. how much you want to bet some attorney is drooling over this as we speak?
    If I understand the Judge's ruling correctly there's a big difference between speeding tickets and BAC tests. Radar measures the speed the vehicle was traveling at the time the speeding violation occurred.
    Magee said Virginia's law presumes the blood-alcohol level at the time the test is taken is equal to the level at the time of the offense, even if the test occurs hours after police make a stop.
    The BAC law assumes the BAC level is steady, which we all know is not true. If LEOs had given a BAC test at the time of the arrest then the speeding analogy would hold. However, here, the the article makes it seem that BAC tests are given some time after the fact. Depending on metabolism, weight, food in stomache, etc BAC levels could go higher or lower after someone is arrested. A person could have a BAC of 0.78, not intoxicated, at the time of arrest, and when the test is given 40 minutes later the BAC has risen to 0.81, intoxicated. At the time of the arrest there was no intoxication.
    It is constitutional to set up check points but unconstitutional to use a standard measure for intoxication.
    The issue isn't so much is 0.80 an unconstitutional measure, but rather the issue is was BAC at 0.80 at the time of arrest. This is a good ruling. Whether it will have any change in the future is doubtful. LEOs can carry portable breathilizers and ask potential offenders to take the test, which would occur at the time of the incident. If the person refuses the LEO can still arrest for suspicion, and give testamony on why he thought the person was intoxicated and let the jury decide.

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#8)
    by Patrick on Sat Dec 17, 2005 at 01:02:16 PM EST
    Judge Ian O'Flaherty...Hmmm, Irish? Drinker? You make the call.... P.S. That's all poking fun at sterotypes....

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#9)
    by Patrick on Sat Dec 17, 2005 at 01:02:16 PM EST
    Tex, Those issues (or what the BAC was at the time of stop) can be worked out in court by experts. There's nothing that stops a defendant from raising that defense.

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#10)
    by Sailor on Sat Dec 17, 2005 at 01:02:16 PM EST
    There's no presumption of guilt, just intoxication.
    it's a criminal statute. One pleads guilty, not guilty or nolo. Care to see the statute?
    Virginia DUI / DWI drunk driving and Virginia reckless driving are Virginia Criminal Class 1 Misdemeanor charges carrying the possibility of up to one year imprisonment, fines up to $2500 and/or license suspensions.
    BigTex, good points. Nice to hear from you again. BTW, I like your site, I don't necessarily agree with it, but I like it.

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#11)
    by Che's Lounge on Sat Dec 17, 2005 at 01:02:16 PM EST
    This is a classic case where John Roberts would side with authorities if it went to the SCOTUS.

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#12)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:16 PM EST
    What a tremendous ruling! It really is a presumption of guilt - the jury is instructed to presume anyone over .08 under the influence. And in Arizona where I practice, the retrograde defense has been outlawed. In other words you can't introduce evidence that you were below .08 at the time of the driving, even if you really were. MADD lobbied for that one, falsely claiming that 50% of all DUI defendants got off on the "chug-a-lug" defense (it was really more like 1%) Let's hear it for a judge who actually gives a rat's ass about the constitution!

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#13)
    by cpinva on Sat Dec 17, 2005 at 01:02:16 PM EST
    ok, i re-read the article, and stand by my original post. the issue at hand was that state law, by setting an arbitrary standard of .08 blood alcohol level as presumptive of intoxication, is violative of the constitutional presumption of innocence, absent compelling proof to the contrary by the state. with regards to radar, the same presumptive weakness applies, negating the burden on the state to prove, case by case, that the equipment in question did work at the time of the event. by "work", i don't mean a mere certificate of calibration, i mean that the equipment actually does what it says it does, a far more difficult standard. actually, as i think about it, the state's position is still weaker, without that codified advantage, because radar is not calibrated after each and every ticket, nor even every day. add to that that the calibrating is done using equipment provided by the manufacturer of the radar, and you have a strong case for a conflict of interest: what are the odds that the company, who's income is dependent on these same police, is going to tell them the radar doesn't work? unless i read the article completely wrong, which is certainly possible. also, i could be totally out in left field. wouldn't be the first time! lol

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#14)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:16 PM EST
    I have a standard joke that goes like this, "have you ever seen a soccer-mom driving down the road? Well she has no concept of anything beyond what is happening in her backseat. A drunk has no chance against a soccer-mom. Heh! If you don't think that joke is funny try this. A drunk is by definition - irrational. Yet the state expects a drunk to make a rational choice. Not to drive when he is drunk - irrational! So both the state and the drunk are - irrational! So I'm not a comedian! Ok! The truth of the matter is many state laws void the Constitution on matters of drunken driving. It's viewed by Mothers Against Drunk Drivers that the Constitution takes a backseat to public safety. I am a long term AA member. I have seen the damage to both sides. MADD has only focused only on one aspect of the problem - punitive - irrational! If you punish a drunk - he drinks - then drives - whether he has a license or not. If you take a drivers license from a drunk preventing him from work - he drinks instead of work. Who suffers - the family that relies on the drunk - in every case. It's irrational! State Senators feel it's a win-win, pass a more punitive law get elected then they, their wives, and children get caught! All three are in my home group. So are the judges, and alcohol councilors. As long as drinking is legal and driving is legal there will be drunken drivers. Mothers have to get reality based, when they strap Junior into his child safety seat, turn on the Disney video, and start to go down the road there are a plethora of dangers. Grandma or grandpa who is legally blind, deaf, and incontinent; young pretty Diane on her cell phone; Paul the street racer; my ex-wife; and Don the drunken plumber. Singing songs and entertaining Junior is not an option! As an ex-over the road - truck diver (sober in those days) and a biker, with millions of miles behind him, I will testify that only one driver has to be cognizant and driving defensibly to avoid an accident. Drivers have no other option but to know some fool is out there to kill them and their children. States have options (1) Repeal all liquor licenses in their states - severe tax disadvantages, (2) Repeal all drivers licenses in their states - severe tax disadvantages (few others too). Otherwise find a social solution to a social problem! The Constitution is not for sale! Good for Virginia, thank god for a courageous judge!

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#15)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:16 PM EST
    Nah, this case will be overruled on appeal. Virginia? For sure. It is a >very< conservative state. It is also a heavy drinking state, but that's another matter. In the end, I don't think most jurists will think there is anything wrong with establishing a rule that driving with BAC more than .08 should not be allowed. Some people are perfectly capable of driving safely at 90 mph, but -- on average-- not. The law is full of arbitrary lines drawn based upon assumptions that don't apply to everyone.

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#16)
    by pigwiggle on Sat Dec 17, 2005 at 01:02:16 PM EST
    “MADD must be having seizures.”
    Me too, but for quite different reasons. It was inevitable; in the rush to the bottom with permissible BAC someone was bound to question this nonsense. Doubt this will stand, but I’ll be smiling all day long.

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#17)
    by killer on Sat Dec 17, 2005 at 01:02:17 PM EST
    It seems to me that in some states, the crime is haveing BAC above a certain level, and not "being intoxicated".

    Re: Va. Judge Declares DUI Law Unconstitutional (none / 0) (#18)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:02:18 PM EST
    The point is that the BAC above that level is DEFINED as 'being intoxicated.' A drunk driver may not show obvious signs of being intoxicated while driving. However, in the case of an emergency, their reaction time is a LOT slower. Stupidity and bad driving is not illegal in itself. Many drivers are so bad that, drunk or not, they are a hazard to others. For that reason, absolute standards of BAC are specious, and only provided for the convenience of officers. Lowering the BAC legal levels to .08 has probably removed a fudge factor that the original law(s) needed to remain legal. Cellphones remain as big a cause of accidents as lower-BAC drunk driving.

    Va. Judge Declares DUI Law Unconstitutional | 18 comments (18 topical)