Va. Bill a Response to Tossed DWI Cases

By Tom Jackman
Washington Post Staff Writer
Friday, November 11, 2005

The Virginia State Crime Commission, trying to avoid situations such as that involving the Fairfax County judge who believes the state's drunken driving laws are unconstitutional, proposed legislation yesterday that would allow prosecutors to move such cases out of general district court.

As Virginia law stands, when a general district court judge finds a law unconstitutional, prosecutors cannot appeal the ruling. This particularly vexed Fairfax prosecutors, who felt they had no recourse when General District Court Judge Ian M. O'Flaherty began ruling this summer that he would not automatically presume someone was drunk when he or she had a .08 blood alcohol level, as state law instructs.

Under the legislation, defendants who want to challenge the constitutionality of a statute in general district court must notify prosecutors in advance. The prosecutors then would have the option of transferring the case to circuit court, a "court of record" under the law, and would be able to appeal any rulings on the constitutionality of a law to the state court of appeals -- and beyond.

O'Flaherty has allowed a defendant's blood alcohol level into evidence but also considers the person's driving performance and behavior on roadside sobriety tests. And then, on at least six recent occasions, he has found defendants not guilty. He cited a 1985 U.S. Supreme Court ruling to support his opinion that relieving the state of its burden of proof, by presuming a key element of the crime, is unconstitutional in criminal law.

Although no other judges in Virginia have adopted O'Flaherty's approach, the situation poses a problem in all areas of the law, Lynchburg Commonwealth's Attorney William G. Petty said yesterday.

"If a statute's held unconstitutional by a general district court judge," Petty said, "that then becomes the law in that one courtroom, and there is no way to challenge that. It became a question of unequal justice, with one judge doing one thing and another judge doing another."

General district court judges hear traffic and misdemeanor cases and preliminary hearings in felony cases. Defendants can appeal guilty verdicts or pretrial rulings; prosecutors cannot appeal anything.

"The prosecutors feel paralyzed because they can't get a higher court to review anything," said Del. David B. Albo (R-Fairfax), a member of the crime commission.

"With Judge O'Flaherty, who is not a pushover, weak-on-crime judge, it's just that he believes the DUI laws are unconstitutional, and the prosecutors can't appeal."

Fairfax Commonwealth's Attorney Robert F. Horan Jr. said he has had "an awful lot of legislators call me about it." He said the legislation would fix a glitch in the system.

"Every other court in the system has checks and balances, but there's no check on the district court to declare something unconstitutional," Horan said. He added: "For a single sitting judge to be the Supreme Court of the United States on a single issue just makes no sense. I think most of the legislators saw it that way."

Petty, also a member of the crime commission, said that many general district courts have busy dockets, and a judge can quickly make a constitutional ruling that will stand unchallenged. "I think everybody would feel comfortable if this was done a little bit more deliberately."

Albo said the legislation should meet little resistance. "My prediction is it passes 97 to 3," he said. "Even the people on the crime commission who are defense-oriented, they even said it seems fair."

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