Dismissals Of DUI Cases Jolt Lawyers

By Jamie Stockwell and Tommy Nguyen
Washington Post Staff Writers
Saturday, August 13, 2005

It was a creative legal argument -- perhaps brilliant, some said -- and after a brief reflection, a Fairfax County judge bought it, declaring that key components of the state's drunken driving laws are unconstitutional.

In a decision that could prompt similar challenges nationwide, Judge Ian M. O'Flaherty cited a decades-old U.S. Supreme Court ruling when in the past month he dismissed charges against three alleged drunk drivers.

O'Flaherty, one of 10 judges who preside over traffic cases in Fairfax County District Court, ruled that Virginia's law is unconstitutional because it presumes an individual with a blood alcohol content of 0.08 or higher is intoxicated and denies a defendant's right to the presumption of innocence.

As a district judge, O'Flaherty does not establish formal precedent with his rulings. But reports of the constitutional argument have quickly found their way onto Web logs and into the offices of defense attorneys and prosecutors across the country, prompting some to explore tactics to exploit or attack the Fairfax decisions.

"There will be similar motions everywhere, no doubt about that," said Steven Oberman, chairman of the DUI defense committee at the National Association of Criminal Defense Lawyers. "There are lawyers everywhere who are looking at this issue again in a different light."

A lot will depend on each state's interpretation of its drunken driving laws, Oberman added, and whether a person with a 0.08 blood alcohol level is presumed, by law, to be intoxicated. If so, as is the case in Virginia, other elements must still be proven, including whether the defendant also failed a roadside sobriety test.

Corinne Magee, the attorney whose challenge of the state's drunken driving law led to O'Flaherty's ruling, said the decision was based on the 1985 U.S. Supreme Court case Francis v. Franklin , which dealt with a prosecutor's obligation to prove all elements of a crime beyond a reasonable doubt.

After closely reading the decision, Magee said she realized that it could apply to the state's drunken driving laws.

"I expected him to convict on other evidence in the case," Magee said of O'Flaherty, who presided over the case in which her client was accused of driving with a blood alcohol content of 0.21, more than twice the legal limit.

"I was surprised when he dismissed the case . . . but I think it was based on a very careful reading of the Francis case."

Magee said she was troubled by the law because it presumes intoxication at 0.08 and that the driver was at that level while driving, even if the test was administered hours after the driver was stopped. She said a person's blood alcohol level can fluctuate depending on when the last drink was consumed and how that person's body metabolizes alcohol.

But prosecutors, and even some defense attorneys, disagree, and said yesterday that laws in the 50 states that have established a presumption of intoxication at 0.08 have been upheld even when similar arguments were raised.

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