Maverick N.Va. Judge Tosses Out DWI Cases That Presume Guilt

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By Tom Jackman
Washington Post Staff Writer
Thursday, October 27, 2005

A Fairfax County judge who believes Virginia's drunken driving laws are unconstitutional has begun dismissing cases, including five DWI cases in a week, and has threatened to throw a veteran prosecutor in jail for arguing with him.

Judge Ian M. O'Flaherty made it known in July that he felt Virginia's DWI law unfairly deprived defendants of the presumption of innocence if breath tests showed that they had a blood alcohol content of .08 or higher, levels at which people are presumed to be intoxicated.

"We've been really racking our brains, trying to come up with some solution to it," said Robert F. Horan Jr. (D), the county's longtime chief prosecutor. "It's a crazy situation. He is, for all practical and legal purposes, the Supreme Court of Virginia in these cases, even though, on the Supreme Court, it would take four of him" to issue a majority opinion invalidating a statute.

Critics say O'Flaherty, a General District Court judge, is endangering public safety by returning drunk drivers -- some with alcohol levels of twice the legal limit -- to the roads. But some legal experts are sympathetic, saying the judge might be making a valid argument and protecting the constitutional rights of all motorists.

The judge said in an interview that he recently was made aware of a 1985 U.S. Supreme Court ruling that reversed a Georgia murder conviction because the jury had been told to presume that, if the suspect was "of sound mind," he had the intent to kill.

As it does in all states and the District, Virginia's drunken driving law states that, for anyone with a .08 or higher reading on a breath test, "it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense."

Prosecutors point out that Virginia's law creates a "rebuttable presumption," meaning the defendant has the opportunity to prove it wrong. But O'Flaherty said that wrongly shifts the burden of proof from the prosecution to the defense.

"The Fifth Amendment," said O'Flaherty, 59, "is an absolute protection against requiring the defendant to say or do anything in the course of a trial. . . . The Fifth Amendment means the defendant can sit there, not say or do anything, and at the end of the case say, 'Can I go home now?' "

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.' "

Prosecutors cannot appeal a case that they have lost at trial at the General District Court level, so they began requesting that charges be dropped before cases went to trial in O'Flaherty's courtroom. O'Flaherty began denying those requests this month.

At least two cases could move toward a state Supreme Court ruling. Both were cases that prosecutors pulled from O'Flaherty's court and then indicted in Circuit Court. One will be tried today in Fairfax Circuit Court.

"This is a public safety issue," said Pat O'Connor, president of the Northern Virginia chapter of Mothers Against Drunk Driving. "My concern is that this judge is putting drunk drivers back on the road, based on a decision that none of his peers have seen fit to agree with."


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