Dismissals Of DUI Cases Jolt Lawyers

"If this ruling became the law of the land, it would be devastating for all DUI cases," Fairfax County Commonwealth's Attorney Robert F. Horan Jr. said. "For all these years, it has passed muster, and now one judge has decided it doesn't. "Our hope is to get it through to circuit court and let it play out and go from there."

Moreover, Horan said, O'Flaherty misinterpreted the obscure and rarely cited 20-year-old case. Because of carefully phrased statutes, defendants in drunken driving cases have to prove they were not intoxicated, he said.

Because prosecutors can appeal only cases dismissed by a circuit court judge, Horan said his office plans to prosecute three other DUI cases in circuit court.

O'Flaherty did not return a call seeking comment.

A. E. Dick Howard, a constitutional law professor at University of Virginia, said O'Flaherty's ruling appears misguided, an "idiosyncratic ruling" that if followed could "create massive upheaval and seismic shock in courtrooms across the country."

"I think the Francis case simply does not apply, not like this," Howard said.

Patrick O'Connor, president of the Northern Virginia chapter of Mothers Against Drunk Driving, said he was not aware of any other state judges who have made similar decisions. O'Flaherty's ruling, he said, undermines the work of law enforcement and prosecutors to keep drunk drivers off the roads.

O'Connor, whose son was killed three years ago in a crash caused by a driver who had a blood alcohol content of 0.15, said he would have been devastated if that driver had not been prosecuted.

"In that case, if they had thrown out that evidence as unconstitutional, then there would have been no consequence for that driver's action," he said.

"I'd be angry . . . at the thought that someone could drink and drive, take a life away and possibly walk free, when all the health and medical evidence support that a driver with .08 is impaired to drive."