Posted On: October 24, 2005, 5:47 pm CDT

Posted By: Allison

It should be noted that Virginia, as a general rule, construes rebuttable presumptions (you must infer, unless the defendant rebuts) as permissive inferences (you may infer, if you believe what the prosecution is telling you)to avoid the due process problems involved with shifting the burden of proof to the defendant. Ex. Wilson v. Commonwealth, 225 Va. 33, 41(1983)(finding that "the law of the Commonwealth is that a presumption such as that in the DUI statute is legally speaking only a permissible inference"). Thus, even though the statute calls it a "rebuttable presumption", this has been interpreted by courts to be less burdensome on the defendant.

The only problem with these Fairfax cases that could have resulted in the dismissal is if the jury instructions were phrased in a way that made it a rebuttable presumption that shifted the burden of proving intoxication to the defendant. (Ex. use of "must" instead of "may").
While I agree with the judge's fundamental belief that DUI laws are in a sorry state of affairs, I have spent a fair amount of time looking into this and, unless this has to do with jury instructions, I believe he is not appropriately construing Virginia law. His attempt to do so, however, is indicative of the notion that there is something inherently unfair and wrong with regard to these laws, especially with regard to due process.