A Fairfax County judge who believes Virginia’s drunken driving laws are unconstitutional has resumed his practice of dismissing all DWI cases brought into his court, leaving prosecutors unable to appeal his rulings. General District Judge Ian M. O’Flaherty last month dismissed two more drunken driving cases after defense attorneys successfully argued that the Virginia law presuming intoxication at blood-alcohol levels of 0.08 or higher violates an obscure 1985 U.S. Supreme Court ruling. All 50 states have laws that establish such a presumption, and their constitutionality has been upheld. But O’Flaherty has sided with defense attorneys’ arguments under Supreme Court language from a 1985 case called Francis v. Franklin, which deals with prosecutors’ obligation to prove all elements of a crime beyond a reasonable doubt. Fairfax Commonwealth’s Attorney Robert F. Horan Jr. said a quirk in Virginia law makes it impossible for prosecutors to appeal when a district court judge decides a law is unconstitutional.
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