Posted On: October 31, 2005, 2:46 pm CST

Posted By: N.Va. defense lawyer

First, VA General District Court judges are appointed to a term of years by the General Assembly (VA's legislature). They are not elected, and appointment is not for life. Judge O'Flaherty will be up for possible re-appointment in a few years.

Second, I've argued cases in front of him for years. He deeply cares about justice, the rules of evidence, and the Constitution. He is one of the few judges who encourages open discussion about his performance on the bench, and I've seen his personally post his judicial evaluation results in the courthouse lobby. His docket usually runs the latest because he gives every defendant, prosecutor, attorney, and witness plenty of time to address the court on all relevant matters. In past years, when the county was too cheap to properly maintain the courthouse grounds, this judge has been seen on multiple occassions raking leaves or cutting grass on the courthouse lawn. When the lines to enter the courthouse get backed-up because security is overwhelmed (there are metal detectors at the doors), he will delay starting his docket so that no one is assumed to be missing his/her case before him. Before the morning docket begins, he can be seen in the courthouse lobby helping people find which floor and courtroom they are in [the Fairfax courthouse has 5 floors]. His integrity and dedication to the court is unquestionable.

Third, do not for a moment think he is a soft judge. He is also a VERY tough sentencing judge, especially for cases involving Reckless Speed, car accidents, stealing, and when he believes the defendant is lying to the court. In these cases, the prosecutors do not complain when he locks up defendants. Do not for a minute think he is some wacky feel-good judge.

Fourth, in a sense, the DWI laws encourage the prosecutors to be lazy by making their job easy. In most cases, the prosecutors read off a script of questions, get the breath test (BAC) sheet into evidence, then sit back. Any toxicologist will tell you that your BAC does not plateau from the time you are pulled over until the time you blow at the station/jail (1-2 hours later). Depending on numerous factors, alcohol in one's blood is absorbed, reaches an equilibrium, and then is eliminated. Unlike other fields of 'scientific testing' which require a prosecutor's expert testimony in the courtroom (like DNA, fingerprints, accident resconstruction, handwriting, etc.), the DWI statute bypasses this because it'd be too costly to have a state expert witness in each DWI case. This Fairfax judge would undoubtedly welcome any evidence from a state toxicologist who could "relate back" in time the BAC test taken 1-2 hours after the actual offense, i.e., the driving. However, since this judge's Francis v. Franklin ruling in July 2005, the prosecutors have never tried this tactic, for reasons unknown to me.

Certainly all Americans agree that drunk driving is bad. But most Americans would also agree that justice should not be compromised to save some bucks. If so, maybe we should throw out Gideon v. Wainwright (holding the right to counsel exists in criminal cases where jail is at risk, even when the accused cannot afford to hire counsel). Maybe the police would have more time if we got rid of the time-wasting Miranda v. Arizona case. Quite simply, my more well-off clients who can afford to pay for a defense expert have a more fair trial.

Presently, a Circuit court judge in Fairfax, VA (the highest county-level court) has the matter under consideration since last Thursday. In a neighboring county, my office will be filing a legal Memo next week in support of the same argument in a DWI case. Other jurisdictions have ruled in different directions on this issue (in favor and against). The issue is a valid one, and it is a shame to read postings that dispargage in a conclusory manner, without regard for the issue's substance. A number of these postings make valid points, but as to others, my intoxicated DWI clients make more sense.