Posted On: October 17, 2005, 2:47 pm CDT

Posted By: Chris

Mary,

Unfortunately, a lot of the reaction to the issues involved in drunken driving is emotional. I get the impression that few people read all the way to the bottom of the article, or else did not want to consider that the judge may have been acting in accordance with the law as written, and higher court precedent, rather than his own agenda.

The presumption laws started out as a well-intentioned response to judicial and societal reaction to drunken driving charges. Prior to the laws, the arresting officer had to present evidence to justify doing a BAC test; weaving, running off the road, hitting fixed objects like light poles, and, of course, other vehicles. The officer also had to conduct a field sobriety test.

The problem was that too many judges and juries would buy lame excuses for the other evidence of being under the influence. The BAC test would be ruled inadmissible or just ignored, and drunks walked. I can���¢�¢â�š�¬�¢â�ž�¢t tell you how demoralizing it was to watch a known drunk walk on a DUI charge because he was ���¢�¢â�š�¬��â��swatting at a wasp���¢�¢â�š�¬����, ���¢�¢â�š�¬��â��suffers from severe halitosis���¢�¢â�š�¬���� (sworn to by a doctor) that smells like alcohol, ���¢�¢â�š�¬��â��bumped his head���¢�¢â�š�¬���� in the accident (or sustained some other injury) and thus couldn���¢�¢â�š�¬�¢â�ž�¢t pass the roadside test, etc.

When someone came up with the idea of an irrefutable presumption based purely upon BAC, without any other corroborating evidence or actions, MADD (as well as other well-meaning groups) jumped on it and pushed it. No one considered, really, the Constitutional ramifications.

But, what was originally a .10 level became .08, by Federal mandate. Now, they are pushing for .05. And, people stopped at random checkpoints, or where there is no probable cause to suspect DUI, are being prosecuted. Like a lot of good ideas, it���¢�¢â�š�¬�¢â�ž�¢s become too much of a good thing, and has lent itself to enforcement and/or prosecutorial abuse. For ���¢�¢â�š�¬��â��all the right reasons���¢�¢â�š�¬����.

I am all for getting drunk drivers off the road. But, I am also all for doing it constitutionally. The judge has made his ruling. Unfortunately, a quirk in the court system in VA does not lend itself to judicial appeal of that ruling. Maybe the energy needs to be spent in fixing THAT anomaly, so that a higher court can review the matter.