This Judge should be REMOVED from the Bench,These HIGHWAY TERRORISTS cause too much Death and injuries on our highway’s, If he is voted in>>>>vote him OUT!
Aah another “rule from the bench” judge. I say he won’t be around for long (lets hope not anyway). Where is MAAD???!!!
What is wrong with our press when the judge who posted the ten commandments in the court room is a vilian. Put the commandments in all schools and public offices.
Wake up people, the problem isn’t with this particular ruling or millions of toehr rulings.
One needs to look between the lines to see what the “real problem” is. And, unfortunately, the problem goes beyond justice to the real problem “an issue of dollars and cents (not common sense!)
I believe the justice system has been corrupted. Senators make laws that are purposefully vague, cumbersome, unconstitutional or just poorly written. The effect of these actions is what we see here. Our society is purposefully becoming more litigious ‘BY DESIGN”.
Think about it. Almost ALL sneators are lawyers. All judges were lawyers. By purposefully creating these laws and issuing these rulings, cases drag on an on. The people (us) get screwed. And the lawyers keep getting richer. THE FOX WATCHING (AND CONTROLLING) THE CHICKEN COOP!
Everyone is worried about Supreme Court appointments. What we should really concern ourselves with is the local, municipal, civil, superior and appelate courts. This money making machince is out of control with justice for few NOT MANY.
Limit the terms of all judges. Make those judges who consistently get their ruling “over turned” liable for their ruling
This type of ruling will continue until one of these judges has a family member of friend killed or maimed by a drunk driver. Let’s hope it doesn’t come to that. Time for term limits for ALL political ofices, be it councilman, judge, senator or mayor. 6 years and out.
I’ve read this article several times, and I fail to see where you are coming from in regard to how corruption and money somehow affected the judge’s decision in this case. Ditto for vagueness of the statute (which I will agree is a problem in a lot of legislation passed, but not for the reasons that you cite).
There is money and lobbying involved, but you are looking at the wrong tree to bark at. Maybe you’ve forgotten where these “presumption of drunkenness” laws came from; MADD, the political, excuse me, victims’ rights lobbying group that spreads lots of campaign dollars and threats. And, let’s remember that the various states have passed these laws mostly because Congress passed a law that says that any state that didn’t pass such a law would lose its highway funding. Again, another MADD project.
The presumption of drunkenness statutes are anything but vague, and that isn’t the issue here. I hate to say it, because I don’t like drunk drivers either, but it sounds like the judge is on firm constitutional grounds in his reasoning. If the .08 were a rebuttable presumption, instead of an irrefutable presumption, maybe this would fly. But, by making it irrefutable, the law does remove the defendant’s right to present evidence in his defense; it does eliminate the need for the government to prove facts beyond a reasonable doubt before taking property (fines) and liberty (jail time). That does appear to make the law in conflict with our U.S. Constitution, and with the court case referred to.
I always hate to hear the slippery slope argument, but what happens when the next lobbying group makes the next mere presence of a single element of an otherwise legal act an irrefutable presumption of guilt of a crime that may not actually have happened? Like, say, being arrested for owning a handgun even though you haven’t shot anyone with it, because that lobbying group, with all good intentions of stopping handgun crime, goes a bit overboard.
Chris, Thank you for your comments. I feel much better now – seriously. Thought I was the only one who felt this judge was NOT doing this to let off a few drunks, but to make the point that the law is flawed (unconstitutional). He gave the prosecutors an opportunity to have the situation righted (6 more cases before he started dismissing them again) and they were so busy being aghast that he had defied them that they missed the point and the opportunity. Now he’s trying to make the point again.
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’t tell you how demoralizing it was to watch a known drunk walk on a DUI charge because he was â€Åâ€Ŕswatting at a waspâ€ÂÂÂ, â€Åâ€Ŕsuffers from severe halitosis†(sworn to by a doctor) that smells like alcohol, â€Åâ€Ŕbumped his head†in the accident (or sustained some other injury) and thus couldn’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’s become too much of a good thing, and has lent itself to enforcement and/or prosecutorial abuse. For â€Åâ€Ŕall the right reasonsâ€ÂÂÂ.
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.
As a CSM in the US Army Special Forces, I have every soldier tested for drugs when they come back from leave. BUT, I ensure that their Constitutional Rights well respected. I have blood drawn and have 3 independent labs test it for all various illegal drugs and give them a vile for their own testing (if so desired). JAG handles all of these and they are a great bunch of miitary lawyers that follow the UCMJ to the letter. The results are not taken from just one lab. Also, the lab techs and the labs themselves MUST be certrified. Now to my case in point. This judge is making the CORRECT decision. When you are tested for the BAC, how in the heck do you cross the damn machine?? You don’t and that should make anybody MADD!!!! But not MADD. I am waiting for the day one 2 or 3 of the madd ladies, going out to dinner, discuss how to get drunks off the road. In the mean time, have 3 or 4 glasses of wine and proceed to drive home. But wait! They are stopped at a check point and the officer smells the tale, tale sign that they have been out drinking. And lord behold, they are forced out of the car, forced to take a FST, then taken back to the PD and giving a test for the BAC and blow a 0.08 and are arrested for DWI. But they say, “we are not drunk, we just had dinner a couple of wines.” Well Ladies, “said the officer,” I agree but it seems that MADD wanted us to do this to get the drunks off the road. And ladies, you are drunk. That could happen to any one that has dinner and a couple of wines or beers. The lower you weight, the higher the BAC will be. Now it is your job to prove you are not guilty. Heck, you can rape, and murder and you are presumed to be inocent. But not in dui cases where you are presumed to be guility until you prove your inocence. This is wrong and I have take an oath to defend the Constitution of the United States of America, just like all officers and members of the courts and law makers.
Keep it up judge and defend the Rights given to all of us under the Constitution!!
CSM Michael P.
5th SFG, 75th Rangers RGT, 82nd ABN
“De Oppresso Liber!!!”
How many innocent people will this judge kill with his irrresponsible and eccenric inerpretations? The people of Virginia need to do whatever is necessary to get this individual removed from the bench. The amount of alcohol it takes to create a .08 BAC level is prodigious, and only someone who suffers from impaired judgement himself would be doing anything that puts these drunk drivers back on the road, rather than in jail where they need to be. I’m sick and tired of reading about families being wiped out, about children being slaughtered or orphaned, by drunk drivers and those who enable their behavior. This strikes me as being a terrible example of Justice Under the Influence, and it needs to be stamped out as forcefully and emphatically as possible.
Y’all (I’m from Texas) are still missing the point.
Someone challenged the law on constitutional grounds: presumption of guilt, limited ability to cross examine one’s accuser, the government not having to prove all of the elements of the crime. I’m sure that no one at the County Prosecutors office took the challenge seriously, or assigned a top level constitutional lawyer to argue the case. Besides, a similar law has been upheld in other jurisdictions, right?
But then, a U.S. Supreme Court case was cited as support. The judge ruled that the case cited was on point and was applicable precedent, and thus found the statute unconstitutional. The judge then gave all parties a period of time to bring the matter to a forum that allowed judicial review.
No one did. So, the judge’s ruling is now precedent, but in his court only. The judge is now dismissing the cases that come before him, as a message to the prosecutors to get the cases filed where the issue can be reviewed by the appellate courts.
Obviously, he is also challenging the legislature to review the matter, and come up with something that will pass constitutional muster if the law is reviewed, and found lacking.
What’s the knee-jerk response? Impeach/vote out/hang the judge! It’s a liberal conspiracy! The judge is legislating from the bench! Corruption is involved! The judicial system needs to be replaced! The judge is substituting his morals for the will of the legislature!
Sorry guys, but the rights of the people, as enumerated in the Constitution, trump the will of the legislature, even if the intent is noble. Our freedom depends on judges to look a law square in the eye, and if it is unconstitutional, or appears to be unconstitutional, rule that way.
Chris is right on.
But an even greater issue is that we are living under the yoke of a de facto “government,” and NOT the dejure government that was originally founded.
If you do not believe it, then read Marc Stevens’ take — http://www.adventuresinlegalland.com/
U.S. Constitution, Fourteenth Amendment, Due Process Clause:
“No state . . . shall deprive any person of life, liberty, or property without due process of law.”
Due process requires the government to prove EACH and EVERY element of the crime charged beyond a reasonable doubt.
Any presumption, whether it is conclusive or rebuttable, in a criminal proceeding that relieves the government of its burden of proof or shifts the burden to the defendant to rebut the presumption is UNCONSTITUTIONAL. See Sandstrom v. Montana, 442 U.S. 510 (1979).
If the state law makes it a crime to drive under the influence and establishes a presumption that .08 BAC is presumed to be under the influence, the law is unconstitutional.
If the state makes it a crime to drive with a .08 BAC or greater–there is no presumption and consequently, no constitutional infirmity.
It appears the LEGISLATURE should rewrite the law to make it constitutional. It’s an easy fix.
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.
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.
yep, those amounts sure are prodigous…four drinks in three hours if you weigh 160 pounds…have you ever been to a bar?!? do you live your life in a bubble? people drink that much over dinner in a respectable restaurant routinely! should they not be driving?
you need to re-evaluate your position else you might be mistaken for a temperence-worker. you remember those fun folks that brought about organized crime in america for their lack of understanding of the drinking culture?
This Judge should be cloned and put in courtrooms all over the Counrty until these draconain, ufair, UNCONSTITUIONAL laws are repealed!!!!!!!!!!!!!! Bravo Your Honer!!!
Hats off to this Judge, wish there were more like him with the guts to challenge these ridiculous DUI laws across the country, the laws are UNCONSTITUONAL…PERIOD!
The current DWI laws are unconstitional and finally a Judge is doing something about them, hats off to him and I hope others follow his lead. R.I D.L is a website that you should all check out, it is about responsabitly in the dwi laws, horror stories and all.
This Judge should be REMOVED from the Bench,These HIGHWAY TERRORISTS cause too much Death and injuries on our highway’s, If he is voted in>>>>vote him OUT!
Aah another “rule from the bench” judge. I say he won’t be around for long (lets hope not anyway). Where is MAAD???!!!
What is wrong with our press when the judge who posted the ten commandments in the court room is a vilian. Put the commandments in all schools and public offices.
Wake up people, the problem isn’t with this particular ruling or millions of toehr rulings.
One needs to look between the lines to see what the “real problem” is. And, unfortunately, the problem goes beyond justice to the real problem “an issue of dollars and cents (not common sense!)
I believe the justice system has been corrupted. Senators make laws that are purposefully vague, cumbersome, unconstitutional or just poorly written. The effect of these actions is what we see here. Our society is purposefully becoming more litigious ‘BY DESIGN”.
Think about it. Almost ALL sneators are lawyers. All judges were lawyers. By purposefully creating these laws and issuing these rulings, cases drag on an on. The people (us) get screwed. And the lawyers keep getting richer. THE FOX WATCHING (AND CONTROLLING) THE CHICKEN COOP!
Everyone is worried about Supreme Court appointments. What we should really concern ourselves with is the local, municipal, civil, superior and appelate courts. This money making machince is out of control with justice for few NOT MANY.
Limit the terms of all judges. Make those judges who consistently get their ruling “over turned” liable for their ruling
I agree this is a bad perversion of justice, but I can’t help but laugh that the guy is Irish. I feel guilty, but it’s still funny!!
Sounds like OJ has a fan…are murders next?
That’s all I can really say about this judge. He’s a moron.
This type of ruling will continue until one of these judges has a family member of friend killed or maimed by a drunk driver. Let’s hope it doesn’t come to that. Time for term limits for ALL political ofices, be it councilman, judge, senator or mayor. 6 years and out.
RIGHT YOU ARE. MAY HE BE MAIMED IN THE WRECK, BUT SURVIVE
WOW I HAVE BEEN SAYING THE SAME THING FOR YEARS. HOW ELSE WOULD LAWYERS MAKE A LIVING. IF ALL THINGS WERE SENSIBLE WE WOOULD HAVE NO USE FOR THEM.
INVEST IN INSURANCE STOCK. SURELY THIS JUDGE ALONE WILL BE RESSPONSIBLE ALONE FOR RAISING RATES AND PROFITS.
I’ve read this article several times, and I fail to see where you are coming from in regard to how corruption and money somehow affected the judge’s decision in this case. Ditto for vagueness of the statute (which I will agree is a problem in a lot of legislation passed, but not for the reasons that you cite).
There is money and lobbying involved, but you are looking at the wrong tree to bark at. Maybe you’ve forgotten where these “presumption of drunkenness” laws came from; MADD, the political, excuse me, victims’ rights lobbying group that spreads lots of campaign dollars and threats. And, let’s remember that the various states have passed these laws mostly because Congress passed a law that says that any state that didn’t pass such a law would lose its highway funding. Again, another MADD project.
The presumption of drunkenness statutes are anything but vague, and that isn’t the issue here. I hate to say it, because I don’t like drunk drivers either, but it sounds like the judge is on firm constitutional grounds in his reasoning. If the .08 were a rebuttable presumption, instead of an irrefutable presumption, maybe this would fly. But, by making it irrefutable, the law does remove the defendant’s right to present evidence in his defense; it does eliminate the need for the government to prove facts beyond a reasonable doubt before taking property (fines) and liberty (jail time). That does appear to make the law in conflict with our U.S. Constitution, and with the court case referred to.
I always hate to hear the slippery slope argument, but what happens when the next lobbying group makes the next mere presence of a single element of an otherwise legal act an irrefutable presumption of guilt of a crime that may not actually have happened? Like, say, being arrested for owning a handgun even though you haven’t shot anyone with it, because that lobbying group, with all good intentions of stopping handgun crime, goes a bit overboard.
Then what?
Chris, Thank you for your comments. I feel much better now – seriously. Thought I was the only one who felt this judge was NOT doing this to let off a few drunks, but to make the point that the law is flawed (unconstitutional). He gave the prosecutors an opportunity to have the situation righted (6 more cases before he started dismissing them again) and they were so busy being aghast that he had defied them that they missed the point and the opportunity. Now he’s trying to make the point again.
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’t tell you how demoralizing it was to watch a known drunk walk on a DUI charge because he was â€Åâ€Ŕswatting at a waspâ€ÂÂÂ, â€Åâ€Ŕsuffers from severe halitosis†(sworn to by a doctor) that smells like alcohol, â€Åâ€Ŕbumped his head†in the accident (or sustained some other injury) and thus couldn’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’s become too much of a good thing, and has lent itself to enforcement and/or prosecutorial abuse. For â€Åâ€Ŕall the right reasonsâ€ÂÂÂ.
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.
As a CSM in the US Army Special Forces, I have every soldier tested for drugs when they come back from leave. BUT, I ensure that their Constitutional Rights well respected. I have blood drawn and have 3 independent labs test it for all various illegal drugs and give them a vile for their own testing (if so desired). JAG handles all of these and they are a great bunch of miitary lawyers that follow the UCMJ to the letter. The results are not taken from just one lab. Also, the lab techs and the labs themselves MUST be certrified. Now to my case in point. This judge is making the CORRECT decision. When you are tested for the BAC, how in the heck do you cross the damn machine?? You don’t and that should make anybody MADD!!!! But not MADD. I am waiting for the day one 2 or 3 of the madd ladies, going out to dinner, discuss how to get drunks off the road. In the mean time, have 3 or 4 glasses of wine and proceed to drive home. But wait! They are stopped at a check point and the officer smells the tale, tale sign that they have been out drinking. And lord behold, they are forced out of the car, forced to take a FST, then taken back to the PD and giving a test for the BAC and blow a 0.08 and are arrested for DWI. But they say, “we are not drunk, we just had dinner a couple of wines.” Well Ladies, “said the officer,” I agree but it seems that MADD wanted us to do this to get the drunks off the road. And ladies, you are drunk. That could happen to any one that has dinner and a couple of wines or beers. The lower you weight, the higher the BAC will be. Now it is your job to prove you are not guilty. Heck, you can rape, and murder and you are presumed to be inocent. But not in dui cases where you are presumed to be guility until you prove your inocence. This is wrong and I have take an oath to defend the Constitution of the United States of America, just like all officers and members of the courts and law makers.
Keep it up judge and defend the Rights given to all of us under the Constitution!!
CSM Michael P.
5th SFG, 75th Rangers RGT, 82nd ABN
“De Oppresso Liber!!!”
How many innocent people will this judge kill with his irrresponsible and eccenric inerpretations? The people of Virginia need to do whatever is necessary to get this individual removed from the bench. The amount of alcohol it takes to create a .08 BAC level is prodigious, and only someone who suffers from impaired judgement himself would be doing anything that puts these drunk drivers back on the road, rather than in jail where they need to be. I’m sick and tired of reading about families being wiped out, about children being slaughtered or orphaned, by drunk drivers and those who enable their behavior. This strikes me as being a terrible example of Justice Under the Influence, and it needs to be stamped out as forcefully and emphatically as possible.
I agree – Drink Up!
Hate to break it to you guys, but judges in VA are appointed, not elected and it is for life.
Y’all (I’m from Texas) are still missing the point.
Someone challenged the law on constitutional grounds: presumption of guilt, limited ability to cross examine one’s accuser, the government not having to prove all of the elements of the crime. I’m sure that no one at the County Prosecutors office took the challenge seriously, or assigned a top level constitutional lawyer to argue the case. Besides, a similar law has been upheld in other jurisdictions, right?
But then, a U.S. Supreme Court case was cited as support. The judge ruled that the case cited was on point and was applicable precedent, and thus found the statute unconstitutional. The judge then gave all parties a period of time to bring the matter to a forum that allowed judicial review.
No one did. So, the judge’s ruling is now precedent, but in his court only. The judge is now dismissing the cases that come before him, as a message to the prosecutors to get the cases filed where the issue can be reviewed by the appellate courts.
Obviously, he is also challenging the legislature to review the matter, and come up with something that will pass constitutional muster if the law is reviewed, and found lacking.
What’s the knee-jerk response? Impeach/vote out/hang the judge! It’s a liberal conspiracy! The judge is legislating from the bench! Corruption is involved! The judicial system needs to be replaced! The judge is substituting his morals for the will of the legislature!
Sorry guys, but the rights of the people, as enumerated in the Constitution, trump the will of the legislature, even if the intent is noble. Our freedom depends on judges to look a law square in the eye, and if it is unconstitutional, or appears to be unconstitutional, rule that way.
Chris is right on.
But an even greater issue is that we are living under the yoke of a de facto “government,” and NOT the dejure government that was originally founded.
If you do not believe it, then read Marc Stevens’ take —
http://www.adventuresinlegalland.com/
Blessings,
George
U.S. Constitution, Fourteenth Amendment, Due Process Clause:
“No state . . . shall deprive any person of life, liberty, or property without due process of law.”
Due process requires the government to prove EACH and EVERY element of the crime charged beyond a reasonable doubt.
Any presumption, whether it is conclusive or rebuttable, in a criminal proceeding that relieves the government of its burden of proof or shifts the burden to the defendant to rebut the presumption is UNCONSTITUTIONAL. See Sandstrom v. Montana, 442 U.S. 510 (1979).
http://laws.findlaw.com/us/442/510.html
If the state law makes it a crime to drive under the influence and establishes a presumption that .08 BAC is presumed to be under the influence, the law is unconstitutional.
If the state makes it a crime to drive with a .08 BAC or greater–there is no presumption and consequently, no constitutional infirmity.
It appears the LEGISLATURE should rewrite the law to make it constitutional. It’s an easy fix.
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.
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.
yep, those amounts sure are prodigous…four drinks in three hours if you weigh 160 pounds…have you ever been to a bar?!? do you live your life in a bubble? people drink that much over dinner in a respectable restaurant routinely! should they not be driving?
you need to re-evaluate your position else you might be mistaken for a temperence-worker. you remember those fun folks that brought about organized crime in america for their lack of understanding of the drinking culture?
the rest of us do.
This Judge should be cloned and put in courtrooms all over the Counrty until these draconain, ufair, UNCONSTITUIONAL laws are repealed!!!!!!!!!!!!!! Bravo Your Honer!!!
Bravo to this Judge, repeal the Draconian DWI laws ASAP, Bravo Your Honor!!!!! Not being Polictlcy correct is a good thing sometimes….
Whoever fails to understand the purpose behind Sandstrom v Montana is an idiot and their opinion is worthless.
Hats off to this Judge, wish there were more like him with the guts to challenge these ridiculous DUI laws across the country, the laws are UNCONSTITUONAL…PERIOD!
The current DWI laws are unconstitional and finally a Judge is doing something about them, hats off to him and I hope others follow his lead. R.I D.L is a website that you should all check out, it is about responsabitly in the dwi laws, horror stories and all.
The current DWI Laws are most definitly unconstituional. The Judge’s ruling should set a presedent!