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 dismissed two drunken driving cases back in July after a defense attorney 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.
Since then, prosecutors have done their best to keep DWI cases out of O’Flaherty’s courtroom by temporarily dropping the charges and obtaining indictments in Circuit Court.
Now, though, O’Flaherty is no longer allowing prosecutors to bypass his courtroom, said Fairfax Commonwealth’s Attorney Robert F. Horan Jr. O’Flaherty on Wednesday dismissed a DWI case against a driver whose blood-alcohol level was .20, more than double the legal limit. On Thursday he did it again with a driver whose blood-alcohol level was .10, Horan said.
Horan said a quirk in Virginia law makes it impossible for prosecutors to appeal when a district court judge decides a law is unconstitutional.
“There’s no way for us to force this issue into the appellate court,” Horan said.
O’Flaherty’s rulings have no precedential value for other judges, and Horan said he is not aware of any other judges who have agreed with O’Flaherty’s stance. In fact, District Court judges in Virginia do not make written rulings, so O’Flaherty has never officially laid out his reasoning. He has declined comment in the past; efforts to reach him Thursday were not successful.
Horan had hoped to get the issue cleared up in Circuit Court, where rulings are formal and can be appealed to higher courts. But none of the defense attorneys whose cases were redirected to Circuit Court have raised the issue, so the question remains untested, he said.
Horan said he is worried that no defense attorneys will raise the question in Circuit Court, especially now that O’Flaherty is again dismissing cases, because a ruling overturning O’Flaherty’s interpretation will close the loophole that now exists in his courtroom.
“We are racking our brains trying to come up with some type of solution,” Horan said. “It offends my sense of justice that on the charge of driving while intoxicated, it’s going to be a question of luck of the draw” that determines guilt or innocence.
Horan said O’Flaherty told his prosecutors months ago that he would let them bypass his courtroom in favor of Circuit Court six times so that they could try to get the issue settled at an appellate level. Horan said those six cases have come and gone, so O’Flaherty has resumed dismissing cases over prosecutors’ objections.
“I have all the respect in the world for this particular judge,” Horan said. “I just happen to disagree with him on this issue.”
At least one defense attorney, though, said he plans to raise the issue in Circuit Court.
Michael Rieger, who is defending a client on DWI charges in Circuit Court later this month, plans to raise the issue with assistance from Corinne Magee, who first successfully argued the issue to O’Flaherty back in July.
Rieger said he recognizes the possibility that an unfavorable ruling could close the loophole that currently exists in O’Flaherty’s courtroom, but plans to pursue the issue in Circuit Court anyway.
“It would be unethical not to raise a potential defense for one client because it might benefit other clients,” Rieger said.
Magee, Rieger and other defense attorneys argue that a client’s constitutional right to a presumption of innocence is jeopardized by the Virginia law’s presumption that a blood-alcohol level of .08 or higher is equivalent to intoxication.
All 50 states have laws that establish such a presumption, and their constitutionality has been upheld. But Magee put forward a new approach by arguing the issue 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.
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