Virginia's DWI Law Is Constitutional, Fairfax Judge Rules

By Tom Jackman
Washington Post Staff Writer
Thursday, January 5, 2006

A Fairfax County judge ruled yesterday that the state's drunken driving law is constitutional but agreed with a controversial lower-court ruling that juries and judges cannot automatically presume someone is intoxicated if their blood alcohol level is above the legal limit.

The ruling by Fairfax Circuit Court Judge Robert W. Wooldridge Jr. was the first written opinion to assess the legal reasoning of his colleague in traffic court. Fairfax General District Judge Ian M. O'Flaherty, citing a 1985 U.S. Supreme Court case, began dismissing driving-while-intoxicated cases last summer after he determined that the law unfairly shifts the burden of proof to a defendant.

Virginia law states that a driver whose blood alcohol content is .08 or higher is presumed to have been under the influence of alcohol at the time of an offense. The law does allow defendants to present rebuttal evidence.

O'Flaherty had several quarrels with the statute: He said that presuming someone is guilty violates the constitutional guarantee of "innocent until proven guilty" and that the opportunity for rebuttal violates a defendant's right to remain silent. And, O'Flaherty said, the law presumes that drivers' blood alcohol readings when the breath tests were administered -- often an hour or more after the offense -- accurately represents their condition at the time they were driving.

Once O'Flaherty began dismissing cases, Fairfax prosecutors had no way to appeal. Virginia law does not allow prosecutors to appeal from general district court, although a statute to remedy that has been proposed for the upcoming legislative session.

So prosecutors dismissed several cases before O'Flaherty could rule and then indicted those drivers in Circuit Court, where either side can appeal. Two Circuit Court judges rejected O'Flaherty's logic but did not issue written opinions. Two more cases were assigned to Wooldridge, who took oral argument and legal briefs on the issue, pending trials. The first of those trials is set for today.

Wooldridge ruled that the Virginia law would be unconstitutional if a judge or jury were required to find that someone was under the influence based on a certain blood alcohol level. Such a requirement would "diminish the requirement of the state to prove a defendant's guilt beyond a reasonable doubt," Wooldridge wrote.

But state and federal law enable a trial judge to "construe a statute in a way that is constitutional," Wooldridge added, "if such a construction is reasonable."

Wooldridge found that the U.S. Supreme Court and various state courts have allowed a "permissible inference" or "permissive presumption." That allows a judge or jury to infer that someone has committed a crime -- or driven drunk -- but gives defendants the chance to present rebuttal evidence that they were not drunk.

Wooldridge also said that the standard instruction given to juries in such cases was confusing and unconstitutional and that he would not give it without changes.

Lawyers on both sides of the case were pleased with Wooldridge's ruling. Fairfax Commonwealth's Attorney Robert F. Horan Jr. (D) said jurors can infer that someone with a .08 blood alcohol content is drunk "as long as they are told they must consider any evidence to the contrary."

Defense lawyer Todd F. Sanders, who is to represent a DWI defendant before Wooldridge today, said: "What the ruling means is that the state does not enjoy a mandatory presumption at a certain [blood alcohol] level. If the evidence suggests the person is not intoxicated, they might not be found guilty even if they are over a .08."

Corinne Magee, a defense lawyer who also has a case pending before Wooldridge, said the judge's ruling shifts the burden of proof back to prosecutors if the defendant has some indication of sobriety.

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