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VA Judge Refuses to Presume Guilt in DUI Cases

by TChris

While the headline to the linked story labels Judge Ian O'Flaherty a “maverick,” it might be more accurate to call him “brave” for standing up to M.A.D.D. and all the legislators who cower before the group’s lobbying power. Judge O’Flaherty is concerned about drunk driving laws that require a court to presume a defendant guilty of impaired driving if the defendant has a blood alcohol level in excess of 0.08. The judge concluded that the presumption unconstitutionally conflicts with the presumption of innocence and with the defendant’s right to remain silent, and (to the frustration of prosecutors) has repeatedly ruled in the driver’s favor when the test result is the only significant evidence of the driver’s impairment. (Judge O’Flaherty’s first decision to that effect was reported here.)

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.

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    Interesting character and interesting position. Are there any true measures of an individual's impairment due to alcohol? I think most of us, after a few drinks, can bring our focus to bear and improve our odds at passing a quick motor-skills test, but is that a true measure of our impairment? Should we pass the test, would we keep that same elevated focus for the entire drive home? Couldn't/wouldn't a law be legislated that merely says driving with a BAC over 0.8 is illegal, period, similar to those which say exceeding the proscribed speed limit is illegal, period, without needing any sort of proof that the indivudual driver with a BAC of 0.8+ is impaired or that the speeder is dangerous?

    ...sorry 0.08...

    I guess was so excited to see a topic that wasn't about Plame or Miers that I didn't read the whole post..."In addition to prohibiting impaired driving, Virginia makes it a crime just to drive with a blood alcohol concentration in excess of 0.08." So, never mind.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#4)
    by roy on Sat Dec 17, 2005 at 01:05:27 PM EST
    Maybe cops could keep portable driving simulators handy to test how intoxicated somebody is. A friend of mine got pulled over and the officer suspected him of being drunk. His truthful defense was that he's just a bad driver...

    My memory could be wrong on this, but I thought somebody raised this issue in VA a year or so ago, and the higher court rejected the argument. I live in the area and this isn't the first time this argument has been used. Personally, I don't think it is an unreasonable presumption (since it is rebuttable) in light of the many traffic deaths, especially among teens. I know they can't shift the burden of proof, but are rebuttable presumptions forbidden in criminal cases? I don't think so. Last year, a local professional football player was driving in Virginia and was stopped in the middle of the night. He refused the breathalyzer test, but at trial he argued that he had only 2 drinks and as an athlete with a high metabolism and good motor skills he wasn't impaired. He won the case.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#6)
    by Dadler on Sat Dec 17, 2005 at 01:05:27 PM EST
    Sarc, The speed limit is only a suggestion technically. If you can prove that, under the conditions you were driving at that specific time and place, it was safe to drive at that speed then you can get off. Too many trips to traffic school not to remember that one. But it also means you can get a ticket for driving AT the speed limit, or even under it, if, under those conditions, that was too fast to safely drive. This judge seems to be, wisely for the sake of equal justice, considering the same type of formula here with blood-alcohol levels. Tho it's a formula that will be fought much harder than speed-limit enforcement for obvious reasons.

    "The speed limit is only a suggestion technically. If you can prove that, under the conditions you were driving at that specific time and place, it was safe to drive at that speed then you can get off." In light of this thread, shouldn't it be the state's burden to prove that your drving was unsafe?

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#8)
    by Dadler on Sat Dec 17, 2005 at 01:05:27 PM EST
    Yep, but it seems have the advantage of the posted speed limit as their first argument. You have to reply to that, then they have to refute your reply. Hardly ever works that way, and the one time I tried to contest a ticket I got screwed unfairly due to an obvious bias in favor of the officer's opinion, but I can only state what I've been "taught" in traffic "school" by more than one moonlighting CHiP.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#9)
    by Sailor on Sat Dec 17, 2005 at 01:05:27 PM EST
    There should only be one charge; driving while impaired. No matter what the reason is, whether drugs, alchohol, angry, age ... etc. Perhaps when you get your license you should take a motor skills test to determine a baseline and the same test would be given by the cops when pulled over. No more humiliating stupid human tricks interpreted by a cop with a motive to convict you. OTOH, why should anyone be compelled to testify against themselves? Mandated giving of breath or blood is definitely an intrusive search that shouldn't be allowed under 'secure in our persons and places.'
    a local professional football player was driving in Virginia and was stopped in the middle of the night. He refused the breathalyzer test
    In my state he would have immediately lost his license for a year.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#10)
    by Patrick on Sat Dec 17, 2005 at 01:05:27 PM EST
    The speed limit is only a suggestion technically. If you can prove that, under the conditions you were driving at that specific time and place, it was safe to drive at that speed then you can get off
    Dadler, True and untrue. If you are cited for unsafe speed (Section 22350 of the California Vehicle code), then your statement is accurate. But, and there's always a but, exceeding the maximum speed of 55, 65, or 70 depending on the road is not defensible with the traveling a safe speed argument. (Section 22349 CVC). 22350 cvc covers all speed limits below 55 mph and it does require the speed be unsafe. California also makes it illegal to drive with a BAC of .08% regardless of your ability or tolerance. Which is, I'm assuming from the comments in thread, the law in VA.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#11)
    by Patrick on Sat Dec 17, 2005 at 01:05:27 PM EST
    'secure in our persons and places.'
    Hmmm, I think someone forgot the "unreasonable" part, of secure in our persons and places. The courts have ruled time and time again that requiring chemical tests is reasonble.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#12)
    by Dadler on Sat Dec 17, 2005 at 01:05:27 PM EST
    Patrick, I stand corrected, clarified, and contrite. Though my heart was true.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#13)
    by Patrick on Sat Dec 17, 2005 at 01:05:27 PM EST
    Dadler, Them Chippies better keep their day job eh? Silly blue ties, AAA with a badge. ;-)

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#14)
    by Lora on Sat Dec 17, 2005 at 01:05:27 PM EST
    Let's say a person with a BAC of .08 is involved in an accident resulting in serious injury or death of another person. I think the consequences to the driver should be serious, and should be related to the BAC, without having to even look at the "impaired" issue. Drivers should not have so many "outs" that they are tempted to put so many lives at risk.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#15)
    by Johnny on Sat Dec 17, 2005 at 01:05:27 PM EST
    In my state, refusal of a breathalyzer (which is not court admissable evidence)just means my next step is to refuse a blood test (which is acceptable as evidence). Upon refusing a bloodtest, I automatically suffer revocation of license for one year. Imagine for a moment all you fascists... Cop sees you walking around your house, smoking a cigarette. He suspects either illegal drug usage and/or intoxication of same. He knocks on your door and politely asks you if he can search your house. You tell him to get bent, come back with a warrant. You are perfectly in your right to do that. Imagine if they took your drivers license away for one year for doing that! And for what it is worth, I think submitting bodily fluids is self-incriminatory. The burden of proof in every crime always has been, and always should be,upon the prosecution.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#16)
    by pigwiggle on Sat Dec 17, 2005 at 01:05:27 PM EST
    “I think the consequences to the driver should be serious, and should be related to the BAC, without having to even look at the "impaired" issue.”
    Well, this is just stupid. What if the accident is entirely the fault of the now deceased? Impairment is the issue. Suppose the driver with the 0.08 BAC was in control and able when some half blind old codger crosses into their lane of traffic. You’re reasoning would hold the driver with the greater faculty responsible. You can’t seriously think this is a good (or even reasonable) outcome. If the state is going to license an elderly or otherwise handicapped driver because they meet some minimum standard it is hypocritical to punish a driver who normally exceeds this minimum for being alcohol impaired but otherwise at or above the minimum. Typical zero tolerance race to the bottom laziness.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#17)
    by Sailor on Sat Dec 17, 2005 at 01:05:27 PM EST
    "unreasonable" was not forgotten. What can be more unreasonable than the compelled taking of body substances? I know courts have ruled differently, but courts also cite 'compelling interest', which I have yet to see in the constitution.
    Well, this is just stupid. What if the accident is entirely the fault of the now deceased?
    In my state, it still is the fault of the 'impaired' person. Case in point, a kid's blood tested positive for mj, which means ingested sometime in the previous 2 weeks. A woman pulled out in front of him, acknowledged by the court to be the causitive factor. She died, he was convicted of murder. The judge stated he hated to do it, but it was the law.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#18)
    by cpinva on Sat Dec 17, 2005 at 01:05:28 PM EST
    i believe a rebuttable presumption is, by definition, a shifting of the burden of proof. regardless of how "reasonable" this appears, in light of the terrible toll alcohol takes, there is no exception granted in the 5th amendment to the "presumption of innocence" in criminal cases. i noted in that article that at least one federal appeals court has previously upheld the va statute, citing the "rebuttable presumption" logic of the state. i assume this was our very own 4th circuit, located in richmond, va, a court not noted for its liberal interpretation of the constitution. something not mentioned is that the USSC has previously ruled that there is no constitutional right to a driver's license. therefore, while at some point the statutes in question may well be overturned, the states will retain the right to suspend or revoke your driving privilages. what i found most disturbing was that MADD is apparently prepared to give suspected murders greater rights than those those suspected of DWI, all in the name of "public safety". this strikes me as the height of self-righteousness. this should in no way be misconstrued as condoning or supporting anyone's "right" to drive while drunk. i don't want to encounter them either, especially the amateurs.

    "What can be more unreasonable than the compelled taking of body substances?" The taking of a human life by a drunk driver.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#20)
    by Lora on Sat Dec 17, 2005 at 01:05:28 PM EST
    (from Pigwiggle) "You can’t seriously think this is a good (or even reasonable) outcome." I do. I'm hearing a lot of rationalizations for being able to break the law and drive with a BAC of .08. As for those of you who think you have normal reflexes and judgment when driving after drinking, I have news for you. You are avoiding some basic biochemistry here. Perhaps under normal circumstances you may be right, but in an emergency situation, you will not be as quick or have as good judgment as you would otherwise. And regardless of whose fault it is, the old codger is now dead, and might be alive if you hadn't gotten behind the wheel after having a few drinks. The law should make the penalties for doing this harsh enough to deter this practice, which I suspect many of you do. If you haven't had an accident yet, you are lucky. More important, your fellow citizens on the road are lucky. As far as the kid with the positive drug test being charged with murder, I feel that is wrong. There is no basic biochemistry here (at least I don't think so) to suggest reflexes or judgment is significantly impaired two weeks after toking up.

    Lora, If it is in fact such a simple matter of biochemistry, the state should have no problem proving impairment; there should be no need to simply assume it and then force the defendant to prove them wrong. That the state takes the path it does implies it is not, in fact, such a simple matter of biochemistry. But even if it is, which this judge has not said it is not, the Fifth Amendment still applies. By assuming guilt and placing the burden of proof on the defendant, these laws circumvent the clear meaning of the Constitution and the foundation of our legal system. And if you can assume guilt in one type of case, why not another?

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#22)
    by roger on Sat Dec 17, 2005 at 01:05:29 PM EST
    This burden shifting is just a way to reward sloppy police work. Put cameras in EVERY police car and video the drivers. It is usually easy to tell who is impaired, and it saves court time over unneccesary trials. In my town, MADD donated cameras. Too many people got off, so the cops took them out. They claimed that they could not afford to maintain them! Actually, they were caught lying several times.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#23)
    by Lora on Sat Dec 17, 2005 at 01:05:29 PM EST
    justpaul, How are you going to prove it after the fact? You don't have electrodes hooked up to the driver's brain while he's driving. All you have is a collision and a dead person. There is plenty of research showing the effects of alcohol; that's why we have a BAC in the first place. I don't think that there is the same research showing the effects of mj after two weeks. Apples and oranges. I'm just saying, make the law so that if you are involved in an accident and you have a BAC of .08, the penalties are harsh. I don't think that's unconstitutional. You don't have to prove guilt. It's simply, if you are doing (A), then the consequences are (B). If you don't think that's constitutional, then you could make the penalties just as harsh if you weren't involved in an accident. How many fatal and serious accidents involve alcohol? You shouldn't have been out there in the first place.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#24)
    by Johnny on Sat Dec 17, 2005 at 01:05:29 PM EST
    The law should make the penalties for doing this harsh enough to deter this practice,
    I am lol over here... Deter? Do you honestly believe that happens? I personally stand by my stance of "pass the field test, drive home" If you want to change the field test to include emergency reflexive behavior, go ahead. Make sure to include geriatrics. I guarantee that old gentleman would never pass muster on reflexive testing, eyesight acuity, fine motor skills, etc etc etc.. You get the picture. The way it is currently set-up, you are punished any way you look at it when you are pulled over for suspected DUI. Refuse blood test, lose license. Pass the field tests, asked to submit to breathalyzer, refuse, ask for blood...

    Lora, You're arguing that these laws make it easier for the police to convict someone, and are therefore good. Well, it would be much easier if, in order to prove a murder, the police only had to find some small piece of evidence linking the person to the crime and the defendant was then presumed guilty and had to prove themselves innocent. After all, it's not as if many murders are committed on video or with electrodes hooked into the defendant to monitor their state of mind. Should we go this route just so we can more easily prosecute murders? The Fifth Amendment does not say "unless the police can't find a way to prosecute the case without forcing the defendant to testify". A desire to get drunk drivers off the road, laudable as it may be, does not change the rules of the game. If the police wish to prosecute these cases, they can do so based on testimony, video, and, in the case of accidents, forensic evidence relating to the crash scene, skid marks, etc... They shouldn't be able to say "the defendant is guilty until he can prove otherwise".

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#26)
    by pigwiggle on Sat Dec 17, 2005 at 01:05:29 PM EST
    Lora-
    “I do. I'm hearing a lot of rationalizations for being able to break the law and drive with a BAC of .08.”
    The rationalization you are reading is sound . I’m talking about relative impairment and a base level of proficiency. Your ‘reasoning’ seems to be that given a law exists it is good and further, “the consequences to the driver should be serious.” How is this rational?
    “As for those of you who think you have normal reflexes and judgment when driving after drinking”
    You’re avoiding my point; I’ve conceded that alcohol impairs reflexes and judgment. Some folks are allowed to drive with minimal reflexes as they meet some minimum requirement; i.e., elderly, and so forth. You would have folks punished that are above this minimum requirement, albeit impaired relative to their customary level of faculty.
    “And regardless of whose fault it is, the old codger is now dead, and might be alive if you hadn't gotten behind the wheel after having a few drinks.”
    Replace the 0.08 BAC driver with another elderly driver with reflexes above the minimum standard but below our 0.08 BAC impaired driver. The result is the same save no one is punished. How is this reasonable? And good lord, what do you mean regardless of whose fault it is; that’s the point. The driver with the unacceptable skill level should be punished.
    “How many fatal and serious accidents involve alcohol? You shouldn't have been out there in the first place.”
    Your assumption is that any accident involving alcohol is caused by alcohol. You don’t know this and I doubt you can demonstrate as much. You still haven’t settled the point. How is it reasonable to punish drivers who are above some minimum level of proficiency but not at their average level? If this is reasonable then it seems to me we shouldn’t license any driver who is not above the level of the most proficient driver at a 0.08 BAC. Lora, I undoubtedly could find a driver that has better reflexes and judgment at 0.08 BAC than you are at your best. It is absolutely repugnant for you to ask that this driver be seriously punished when, given identical circumstances, you would gladly give yourself a pass.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#27)
    by Lora on Sat Dec 17, 2005 at 01:05:29 PM EST
    Pigwiggle, I'm thinking you want to be able to break a law, and not pay if caught, by demonstrating most unscientifically that it shouldn't apply to you. The law I want enforced is the one that says you cannot drive if your BAC is .08. I think that this particular law is a "good" law. Enough evidence exists to support it without having to look at individual proficiency. Some states have cut-off ages and driving tests for the elderly. These are "good" laws if based on sound evidence. Where the evidence exists, we should have laws to protect against serious injury or harm to large numbers of people, and they should be strongly enforced. I'm a good driver, but if I or you or anyone were on the road drunk and were involved in an accident, we would have no way of knowing for sure if our drinking had affected our reflexes and judgment or not. Research and knowledge of the effects of alcohol say it probably did. Should we get an automatic pass just because the state can't prove it? Write the law to say that if we take ourselves on the road in a state that reasonable people would say is dangerous to others, we will have serious consequences, especially if another individual is harmed or killed. Justpaul, You misunderstand me. Convicting a driver on driving with a BAC over .08 is what I'm looking to do. Obtaining evidence is not unconstitutional.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#28)
    by pigwiggle on Sat Dec 17, 2005 at 01:05:29 PM EST
    Lora-
    “I'm thinking you want to be able to break a law, and not pay if caught, by demonstrating most unscientifically that it shouldn't apply to you.”
    No, I think the law should apply equally to all. I’m trying to convince you that a one size fits all law is ignorant and unjust.
    “Enough evidence exists to support it without having to look at individual proficiency”
    I’m not aware of any, but for the sake of argument I’ll concede it. What makes a DUI homicide such a special crime that we can forgo individual consideration and simply look at trends in the general population? Consider infanticide; children under five are almost exclusively murdered by their parents. By your reasoning we can just lock up the parents of any child who is murdered; you know, enough statistical evidence exists to support it.
    “we would have no way of knowing for sure if our drinking had affected our reflexes and judgment or not.”
    Like I said before; we know alcohol impairs reflexes and judgment, it’s not in question. The question is minimum competency and fault. If the alcohol impaired driver is at fault we should ask if they were below the minimum level of competency. It seems like a trivial test. Measure their BAC and then test their ability at some later time with the same blood BAC. I don’t have a problem with enhanced penalties for folks that willfully injure or risk life and limb of others by driving below the standard. In fact, I would be willing to bet that I am in favor of more sever punishment than you.
    “Should we get an automatic pass just because the state can't prove it?”
    Yes, that’s the typical criminal standard. The state has the burden of proof and, when asking for ‘severe’ penalties, should meet something above a simple preponderance. What do you think of this; my father is a police officer and has offered to put me in his departments driving simulator to test my reaction time and judgment, all the while testing my BAC as I gradually get drunk. So, in this way we can establish what my proficiency is relative to some minimum level as a function of BAC. Should I then be able to drive impaired as long as I am within my predetermined minimum competency BAC?

    pw, while the goal is laudable, the procedure is problematic. Our reaction proficiencies vary all the time. The hyper-focus of a testing situation could yield reaction proficiencies much different than what you would normally exhibit. Reaction proficiencies, however advanced they may be, are useless if you make a dumb choice on the road.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#30)
    by Patrick on Sat Dec 17, 2005 at 01:05:30 PM EST
    Hence the .08 limit in most states, and the need to prove impairment at levels below that. I've seen functional drunks at a .38 pass field sobriety tests better than a female at .05. Alcohol effects people differently, and even small amounts in the blood can cause impairments in refelx and response to emergency situations. I've often heard the most dangerous drunk drivers are the ones at or near the legal limit. They don't feel drunk and drive less carefully than the one who knows they are plastered and is trying to sneak home. With the penalties the way they are, I don't know why people would risk it.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#31)
    by Lora on Sat Dec 17, 2005 at 01:05:30 PM EST
    pigwiggle, It's impossible to custom design this particular .08 law. It is impossible to test everybody for driving proficiency under all possible circumstances. So you set a standard and deal with it. That's how laws generally are. They don't make exceptions because you should somehow be exempt from following the rules like everybody else. The standard is .08. If you drive at or over it, you are willfully breaking the law, putting everybody on the road at risk, and should pay the consequences.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#32)
    by pigwiggle on Sat Dec 17, 2005 at 01:05:30 PM EST
    Lora-
    “It's impossible to custom design this particular .08 law. It is impossible to test everybody for driving proficiency under all possible circumstances.”
    I agree; law enforcement is difficult. But we don’t simply play odds when assigning fault, at least we shouldn’t. It’s absurd and unjust, but convenient.
    “They don't make exceptions because you should somehow be exempt from following the rules like everybody else.”
    I don’t know why you keep accusing me of this. I’ve never said as much. From my previous post …”I think the law should apply equally to all”.
    “If you drive at or over it, you are willfully breaking the law, putting everybody on the road at risk”
    Perhaps willfully breaking the law, albeit not necessarily placing anyone at risk. Well, at least not any more than those folks licensed by the state who are nominally at the state sanctioned minimum standard. And this is the crux; it seems your best argument for harshly punishing folks who are otherwise well above the state sanctioned minimum proficiency is convenience. One man wrecks his car, he’s just old, it’s an accident; a second, he’s drunk, throw the book at him. Does it matter that they both were driving with equal ability? No, this kind of consideration is too inconvenient.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#33)
    by Lora on Sat Dec 17, 2005 at 01:05:31 PM EST
    pw, I am assigning fault based on breaking the law. You have said you should be allowed to drive regardless of BAC if you can demonstrate proficiency. You can't. We don't allow people under the age of 16 to drive, period (obviously different states have different age limits). It's unfair and unjust and convenient. It's the law. Finally, anyone who believes he/she can drive with a BAC of .08 and be in full possession of their faculties, is in denial.

    Re: VA Judge Refuses to Presume Guilt in DUI Cases (none / 0) (#34)
    by pigwiggle on Sat Dec 17, 2005 at 01:05:31 PM EST
    Lora-
    “pw, I am assigning fault based on breaking the law.”
    And I’ve shown you why the law is unnecessarily arbitrary and therefore bad. The fact that a law exists does not justify its existence.
    “You have said you should be allowed to drive regardless of BAC if you can demonstrate proficiency.”
    Right; I think a good law would be one where the state has the burden of demonstrating a given driver was operating their vehicle below some state sanctioned minimum proficiency.
    “It's unfair and unjust and convenient. It's the law.”
    Providing other examples of arbitrary restriction in the law doesn’t justify it. It was once legal to own folks and shoot American Indians or Mormons on sight. It’s an ignorant and unjust law and should be fixed.
    “anyone who believes he/she can drive with a BAC of .08 and be in full possession of their faculties, is in denial.”
    Good lord, how many times are you going to repeat this? Given, alcohol impairs both judgment and reaction time. This is not in question, but so what. If I’m a better driver after a six-pack than you are on your best day you look pretty small trying to justify tossing me in jail while you are free to go on your way.