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Consitutionality of DUI Laws

Dismissals Of DUI Cases Jolt Lawyers
Optimism, Anxiety After Fairfax Ruling

By Jamie Stockwell and Tommy Nguyen
Washington Post Staff Writers
Saturday, August 13, 2005; Page B01

It was a creative legal argument -- perhaps brilliant, some said -- and after a brief reflection, a Fairfax County judge bought it, declaring that key components of the state's drunken driving laws are unconstitutional.

In a decision that could prompt similar challenges nationwide, Judge Ian M. O'Flaherty cited a decades-old U.S. Supreme Court ruling when in the past month he dismissed charges against three alleged drunk drivers.


O'Flaherty, one of 10 judges who preside over traffic cases in Fairfax County District Court, ruled that Virginia's law is unconstitutional because it presumes an individual with a blood alcohol content of 0.08 or higher is intoxicated and denies a defendant's right to the presumption of innocence.

As a district judge, O'Flaherty does not establish formal precedent with his rulings. But reports of the constitutional argument have quickly found their way onto Web logs and into the offices of defense attorneys and prosecutors across the country, prompting some to explore tactics to exploit or attack the Fairfax decisions.

"There will be similar motions everywhere, no doubt about that," said Steven Oberman, chairman of the DUI defense committee at the National Association of Criminal Defense Lawyers. "There are lawyers everywhere who are looking at this issue again in a different light."

A lot will depend on each state's interpretation of its drunken driving laws, Oberman added, and whether a person with a 0.08 blood alcohol level is presumed, by law, to be intoxicated. If so, as is the case in Virginia, other elements must still be proven, including whether the defendant also failed a roadside sobriety test.

Corinne Magee, the attorney whose challenge of the state's drunken driving law led to O'Flaherty's ruling, said the decision was based on the 1985 U.S. Supreme Court case Francis v. Franklin , which dealt with a prosecutor's obligation to prove all elements of a crime beyond a reasonable doubt.

After closely reading the decision, Magee said she realized that it could apply to the state's drunken driving laws.

"I expected him to convict on other evidence in the case," Magee said of O'Flaherty, who presided over the case in which her client was accused of driving with a blood alcohol content of 0.21, more than twice the legal limit.

"I was surprised when he dismissed the case . . . but I think it was based on a very careful reading of the Francis case."

Magee said she was troubled by the law because it presumes intoxication at 0.08 and that the driver was at that level while driving, even if the test was administered hours after the driver was stopped. She said a person's blood alcohol level can fluctuate depending on when the last drink was consumed and how that person's body metabolizes alcohol.

But prosecutors, and even some defense attorneys, disagree, and said yesterday that laws in the 50 states that have established a presumption of intoxication at 0.08 have been upheld even when similar arguments were raised. "If this ruling became the law of the land, it would be devastating for all DUI cases," Fairfax County Commonwealth's Attorney Robert F. Horan Jr. said. "For all these years, it has passed muster, and now one judge has decided it doesn't. "Our hope is to get it through to circuit court and let it play out and go from there."

Moreover, Horan said, O'Flaherty misinterpreted the obscure and rarely cited 20-year-old case. Because of carefully phrased statutes, defendants in drunken driving cases have to prove they were not intoxicated, he said.


Because prosecutors can appeal only cases dismissed by a circuit court judge, Horan said his office plans to prosecute three other DUI cases in circuit court.

O'Flaherty did not return a call seeking comment.

A. E. Dick Howard, a constitutional law professor at University of Virginia, said O'Flaherty's ruling appears misguided, an "idiosyncratic ruling" that if followed could "create massive upheaval and seismic shock in courtrooms across the country."

"I think the Francis case simply does not apply, not like this," Howard said.

Patrick O'Connor, president of the Northern Virginia chapter of Mothers Against Drunk Driving, said he was not aware of any other state judges who have made similar decisions. O'Flaherty's ruling, he said, undermines the work of law enforcement and prosecutors to keep drunk drivers off the roads.

O'Connor, whose son was killed three years ago in a crash caused by a driver who had a blood alcohol content of 0.15, said he would have been devastated if that driver had not been prosecuted.

"In that case, if they had thrown out that evidence as unconstitutional, then there would have been no consequence for that driver's action," he said.

"I'd be angry . . . at the thought that someone could drink and drive, take a life away and possibly walk free, when all the health and medical evidence support that a driver with .08 is impaired to drive."



Constitutionality of DUI Laws
 
It is in my opinion that a set point for drunkenness is irresponsible.
There are plenty of heavy drinkers out there whom a .08 BAC wouldn't even phase.
There are plenty of others who have no business even looking a car at .08.
A BAC reading and an appropriate field sobriety test are the only ways to determine if the driver is in fact intoxicated.
 
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Yeah, and some people can drive 100 MPH on the freeway and still be perfectly safe, while others have no business being on the highway even at the posted 55 MPH, so speeding tickets should also be unconstitutional because people have varying levels of ability?

Fuck that. You drink, you drive, you get caught, you blow the limit, you get jailed...plain and fucking simple. That's why they call it Driving Under the Influence, and not Drunk Driving.
 
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DUI laws have become so political correct that it has become stupid. How many accidents are caused when threre is 0 alcohol involved. It is at the point now where a 6'3" 220 lb man can not have 3 drinks and go home. Hell you do not even need to blow .08 to get charged with a DUI. And fanatical groups like MADD make things worse. I think it is silly a first offense DUI can be punished more then solicting sex with someone underage, etc.

I know what I write will get ripped but the laws are stupid. Hell you refuse to blow you are punished, that is not right either. I am not saying it is a good idea for anyone to drink and drive, but in a lot of cases this is just another witch hunt. But I agree, people who drive erratic should be pulled over, but cops can pull you over at anytime for no reason.

Hell if people were really worried about saftey cell phone usage on the road should have the exact same penalty as a DUI and it (have no facts) causes as many if not more accidents.
 
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No kidding Mili. The legal limits are perfectly fine. You don't wanna get a DUI - either don't drink, or don't drive.

Next thing you know, the Supreme Court's gonna rule that Ohio State has to reinstate Steve Bellisari for two games.:roll2:
 
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I think the key here is that Driving isn't a right. When you aren't talking about a right, your Constitutional protections are less. There certainly is a line here, as I don't think we'd want Cops just saying "Dude was drunk" and not having any evidence, but if the State says .08, then it's .08.

It's hard to achieve that line, though, when if you try you sound like you're advocating drunk driving, which I'd be surprised if any one would.
 
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Buckeyeskickbuttocks said:
I think the key here is that Driving isn't a right.
Bingo - you beat me to it. There is no "right" to a driver's license.

We can argue all day about whether an individual is "impaired" or not, but there has to be a uniform standard, and like it or not, .08 is it.

This attorney may have gotten her client "off" - even though .21 is fucking drunk unless you're the late Andre the Giant - but anyone who thinks this makes it open season to drink and drive should think again. All they need to do is change the law, which they will if this defense holds. They'll simply make .08 be the ONLY measurement, eliminate the field sobriety test, and arguments of "all aspects of the law" will be out the window.

In the end, this ruling will actually make it EASIER to prosecute a DUI.
 
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craigblitz said:
DUI laws have become so political correct that it has become stupid. How many accidents are caused when threre is 0 alcohol involved. It is at the point now where a 6'3" 220 lb man can not have 3 drinks and go home. Hell you do not even need to blow .08 to get charged with a DUI. And fanatical groups like MADD make things worse. I think it is silly a first offense DUI can be punished more then solicting sex with someone underage, etc.

I know what I write will get ripped but the laws are stupid. Hell you refuse to blow you are punished, that is not right either. I am not saying it is a good idea for anyone to drink and drive, but in a lot of cases this is just another witch hunt. But I agree, people who drive erratic should be pulled over, but cops can pull you over at anytime for no reason.

Hell if people were really worried about saftey cell phone usage on the road should have the exact same penalty as a DUI and it (have no facts) causes as many if not more accidents.

Yeah, it's a witch hunt alright...like the family and friends of the 13 year old I knew who was killed by a drunk driver. I guess they were just part of some big PC conspiracy.

Operating a motor vehicle impaired puts everyone's life in danger...I guess I am more of the opinion it is better to try and prevent such accidents than to wait until everyone who drinks and drives kills someone. Call me crazy.
 
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MililaniBuckeye said:
Yeah, and some people can drive 100 MPH on the freeway and still be perfectly safe, while others have no business being on the highway even at the posted 55 MPH, so speeding tickets should also be unconstitutional because people have varying levels of ability?

Fuck that. You drink, you drive, you get caught, you blow the limit, you get jailed...plain and fucking simple. That's why they call it Driving Under the Influence, and not Drunk Driving.
Exactly.
 
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Best friends dad died because some tree hugging asshole was too busy on his cell phone then to drive..... The dui laws are out of control in my opinion because it is all about politics, and judges, officers, and lawyers put their political career in jeporady if the do not go with the flow of tough on crime, etc etc.

BTW sorry to hear about the loss, I am not advocating drinking and driving, but the laws have become out of hand in my opinion. Again if we take that approach I guess I am more of the opinion it is better to try and prevent, then radios, cell phones, televisions, anything that distracts the driver from being 100% focused thus causing an imparement should be illegal. Like I said I agree with the artical, I know people who are 100% fit to drive after have a 6 pack, but there are people who I would not get behind the wheel with 2. .08 does not mean impared for everyone and that is what I was agreeing with.

The witch hunt expression was extreme but it is a money maker for the states in most cases more then it is in keeping the roads safe in my opinion.

Again sorry to hear about the loss.
 
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jlb1705 said:
Next thing you know, the Supreme Court's gonna rule that Ohio State has to reinstate Steve Bellisari for two games.:roll2:
Please no - anything -- but not not that, not again, I can't stand it --

Stop -

Please.

Oh, yes, and the Fairfax, VA judge is reading the law waay too tightly. Like Mili said -its a DUI, not a cannot operate vehicle while comatose crime.

I was once called on by a lawyer friend of mine to provide "expert" testimony of the frailty of the analytical methods used in the Breathalyzer on behalf of his client. Thought sure, there may be agood reason why my skills would be needed here. Asked first to sit down with his client. Within two questions I had established that he
A - Knew he had drunk more than was likely to get him over the reading, and;
B -That his sole remaining defence was that his reading was compounded by the presence of "alcoholic compounds from mouthwash" still on his breath.

I calmly explained to both lawyer and client that this last claim about mouthwash amounted to hogwash. Plus, in view of the former declaration of his intake I declined to act on the lawyer's behalf in his client's defence.

Lesson here is that lawyer's will try and say anything they are allowed to, in order to get their clients out of the rathole in which they may be buried. As the lawyer in this case said:

After closely reading the decision, Magee said she realized that it could apply to the state's drunken driving laws.

"I expected him to convict on other evidence in the case," Magee said of O'Flaherty, who presided over the case in which her client was accused of driving with a blood alcohol content of 0.21, more than twice the legal limit.
So putting it simply, Magee KNEW - that the defendant was GUILTY AS HELL (0.21 BAL) -- but still hit for the fences, using Virginia's convoluted wording of the DUI Statute against its intended purpose.

At 0.21 BAL we are talking staggering to get behind the wheel, it's a no-brainer -- till Magee come's to the plate.
 
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craigblitz said:
Best friends dad died because some tree hugging asshole was too busy on his cell phone then to drive..... The dui laws are out of control in my opinion because it is all about politics, and judges, officers, and lawyers put their political career in jeporady if the do not go with the flow of tough on crime, etc etc.

BTW sorry to hear about the loss, I am not advocating drinking and driving, but the laws have become out of hand in my opinion. Again if we take that approach I guess I am more of the opinion it is better to try and prevent, then radios, cell phones, televisions, anything that distracts the driver from being 100% focused thus causing an imparement should be illegal. Like I said I agree with the artical, I know people who are 100% fit to drive after have a 6 pack, but there are people who I would not get behind the wheel with 2. .08 does not mean impared for everyone and that is what I was agreeing with.

The witch hunt expression was extreme but it is a money maker for the states in most cases more then it is in keeping the roads safe in my opinion.

Again sorry to hear about the loss.
I appreciate that. I tried not to attack you personally craigblitz, but obviously this is an issue I take very seriously. I understand, and should be able to rationally argue, the particulars of the laws, but unfortunately my emotions on this one preclude me from doing so. And I certainly know you weren't advocating drinking and driving.

I guess my issue is I think there are too many lawyers and politicians attacking the wrong places, just like you do...I just don't think drinking and driving is one of those places. I think if they spent half the time worring about Jessica's law and other ways that people's lives are put in danger that they do on adult porn, what people do in their bedrooms, and a host of other things that score political points but do nothing to help or protect society, then we'd all be better off.

I personally believe that the book should be thrown at anyone who causes an accident while impaired driving, be it alcohol, reading, applying makeup, cell phones, or any of the other stupid things I've seen people do while driving. That said, any way we can prevent even a few people from doing these things behind the wheel ahead of time could prevent the death of the 13 year old, and your friend's dad. I know that not everyone agrees with this...but that's my opinion.

I am sorry for your loss too...it breaks my heart everytime I hear about someone dying needlessly and preventably in an automobile accident.
 
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From the time I was six years old, I spent hours practicing basketball every day. It was the era of Lucas, Havlichek and the gang, of Gary Bradds, etc. I lead every team that I played on in scoring. By the time I reached ten, I spent four hours a day playing. I even got personal encouragement from Fred Taylor and dreamed of playing guard for Ohio State.

One day, when I was 13, my mother and I were hit in a collision at Karl and Morse Roads in Columbus when a drunk driver ran a red light while we turned left. He hit us at such a speed that our Rambler (a real crap car) was wrapped around the telephone pole on the corner outside the fire station so violently that the front and back of the car were joined around the pole. It took an hour to get us out and two days to cut it off and haul it away.

We both survived the accident but I went through the passenger window and windshield and was hospitalized for a month with a fractured skull, major brain concussion, massive internal bleeding, and two shattered collar bones. Forty years later, I still taste the mouthful of glass and blood everytime I see an accident and remember how cold I felt in that rain. I can still see his car and face at impact and his surprise at seeing our car in his path.

I probably would not have been good enough to play for any university of note, especially Ohio State. Anyway, I certainly didn't have the right physical package at 18.

My point is that the cost of drunk driving often is not as visible as someone getting killed. Regardless of my abilities, my dream to play for Ohio State died on that rainy day thanks to that drunk driver. I never could shoot the same afterwards. I had dizzyness and motion problems for years afterwards and I shied away from contact. I still can't sleep on one side because of the injuries that day.

I do NOT want or need any sympathy because I have lived such an incredibly blessed, rewarding and interesting life. About ten years ago, in my early 40's, I played some semi-pro ball here (mainly Yugoslavs and Ukranians and Eastern Europeans, a couple of guys had played in the Olympics). Clearly, my time had passed and the level was far below the USA, but I still had some game and I wasn't afraid to drive the lane and challenge the big folk. I can't tell you what it felt like to get out there and put double digits on the board against those youngsters and it was a healing time for me. Although I wondered just what might have been, I must be honest that I have no regrets and am not a card-carrying member of the anti-drunk driving lobby. I don't carry any resentment but it's hard for me to have any sympathy for drunk drivers.

We all know that low levels of blood alcohol impair judgement and driving ability. We have all seen the televised tests in which people have a couple of drinks, have a blood alcohol level below the legal limit, and yet cannot negotiate a driving course that they mastered quite easily a few hours earlier. Despite their impaired ability to manage their automobile, we also have witnessed them telling us that they actually can still drive very skillfully and that their ability to not handle the course "doesn't matter anyway" because "driving isn't really like that".

Of course, they are right, because the bright orange obstacles that they run over aren't people, like in real driving, and there aren't any consequences. A receptionist at my work was killed in a drunk driving incident just two weeks ago. She was like a beacon of goodwill on the ugliest of days and leaves behind two small children under the age of five. Her husband remains so much in a state of shock that he almost cannot cope. I understand that the drunk driver can't understand what went wrong with his car that caused him to cross the median.

I believe that drunk drivers should go to jail. Period. Not because I am angry but because their behavior is every bit as dangerous as picking up a loaded gun and playing Russian roulette with other people's lives.

However, I also agree with Craigblitz about the need for balanced laws and enforcement. Studies show that people who talk on cell phones and participate in other distracting behaviors are equally bad drivers, similar to those who are intoxicated. They also should be penalized.

Portable hands-free kits are very inexpensive. In South Africa, it is against the law to drive and speak on a cellphone except with a hands-free kit. That should be the law everywhere and it should be enforced.
 
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MililaniBuckeye said:
Fuck that. You drink, you drive, you get caught, you blow the limit, you get jailed...plain and fucking simple. That's why they call it Driving Under the Influence, and not Drunk Driving.
Your exactly right, but you missed my point.
The level of "influence" is going to vary from person to person, and a specific point is stupid.
 
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strohs said:
Your exactly right, but you missed my point.
The level of "influence" is going to vary from person to person, and a specific point is stupid.
Actually, as far as influence on driving is concerned, the research suggests that people drive badly when they exceed the limit, strohs.

People may sincerely believe that their personal driving skills aren't affected, and there may be some variation in how badly alcohol affects a person's driving, but everyone's driving skills are affected when blood alcohol reaches the legal limits and the effects are such that it puts people's lives at risk. Reaction times are slowed, perceptual field is affected. It is an indisputable fact.
 
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