DUI Tests: The Case is Against You

Unconstitutional Per Se

M.A.D.D. and W.P.L. (Womyn's Prohibition League)

MADD (Mothers Against Drunk Driving) struck a tremendous blow to the constitutional and the rights of every citizen of the united states when they got 48 states in the union to immediately pass an illegal per se law in DUI cases.  An illegal per se law makes it illegal in and of itself to drive with an alcohol concentration measured at or above the established legal level. Forty-eight states and the District of Columbia have established a per se law.  The legal limit in most states is .08 blood alcohol concentration (BAC) per se. That means it is against the law to drive a motor vehicle if you have a BAC of .08 or more, without having to prove intoxication. So on its face the illegal per se laws are saying that once the prosecution presents evidence that you had a BAC of 0.08, you are presumed guilty and a judge is then instructed at that point to tell the jury to declare you guilty, and you have to prove your innocence.  The prosecution literally does not have to have a case.



Some of you might be wondering what's the big deal, isn't a BAC of 0.08 mean you're drunk?  Categorically the answer is no.  First of all, the point of DUI laws should not be about proving pseudo-scientific evidence and convicting based on that merit, but to prove that that one person, you per se, were incapable of handling your car at that time and presented a danger to others [ and although I abhor it ] or a danger to yourself [ it smacks of Orwellian big brother talk, which is the basis for all of our drug laws. if you do drugs in your home, you're a danger to yourself, so we throw you in jail. it's rather nanny state thinking, but i digress].

The pseudo-science of BAC.  First of all, every human is different.  I know people try to say we all have the same basic physiology and biological responses, but when talking about alcohol, it's not true:

• a 120lb man is not going to react to alcohol like a 320lb man
• a consummate drinker is not going to react to alcohol like a tea totaler
• a woman is not going to react to alcohol like a man
• a young person is not going to react to alcohol like an old person

The BAC basis ignores all of those factors listed above and presumes everyone is the same.  The prosecutor does not have to even present, nor introduce evidence that you as a 120lb, young, female tea totaler cannot tolerate alcohol and therefore were unable to control a vehicle properly.  BAC based laws then simply say that, here's this number and we presume you are guilty.  BAC is pseudo-science in that it proves nothing other than a number and we infer from it a presumption that all humans, regardless of actual physcial make up, cannot handle a vehicle.  The basis of all real science is that, based upon a given factor, an exact reaction will occur over and over and over again.  A heavy reptitive drinker, will more than likely not be remotely phased by a BAC of 0.08, while a tea totaler would.  An older person, might not be phased by a BAC of 0.08, while a young person would.  This is exactly why 0.08 and illegal per se have no basis in reality.

In every criminal case the trial is to prove you are guilty of and underlying crime.  The state has to present enough corroborating evidence to prove your guilt.  It is not the case that the state simply present 1 piece of evidence and you then proceed to prove your innocence.  However, this is exactly what illegal per se does.  Once the prosecution presents to the court that you had a BAC of 0.08, they literally sit down and you have to prove your innocence.

FAIRFAX, Va. -- A Fairfax County judge is dismissing cases against drivers charged with driving under the influence of alcohol.

District Court Judge Ian O'Flaherty said the law prosecutors use to convict drunken drivers is unconstitutional.

A Virginia state trooper sent News4 an e-mail saying police are upset about the dismissals. Fairfax County Commonwealth's Attorney Robert Horan confirmed that the judge is ruling against prosecutors, making it harder to get drunken drivers off the road.

The judge is challenging one of the powers police and prosecutors rely on for arrests and convictions: the results of breath tests given to suspected drunken drivers. Virginia law says that anyone with a blood alcohol content level of 0.08 percent or more is presumed to be driving under the influence of alcohol. It is then up to the driver to rebut the presumption or prove he or she wasn't drunk.

O'Flaherty began dismissing DUI charges two weeks ago, ruling that the law is unconstitutional because the burden of proof in all cases rests with the prosecutor and this law puts the burden on the defense.

The state law presumes that someone with a blood alcohol content of 0.08 or higher is intoxicated, denying their right to a presumption of innocence, Judge Ian O'Flaherty ruled in dismissing charges against at least two alleged drunken drivers last month.

Imagine the following scenarios from three separate criminal trials:

1.  Burglary.  Police find fingerprints at the scene of the crime.  The prosecution introduces evidence that they match the defendant’s fingerprints.  The judge then instructs the jury that, based entirely upon that evidence, the defendant is presumed to be guilty and that they must convict him — unless he can prove his innocence.

2.  Forgery.  The prosecution offers evidence that the forged handwriting is that of the defendant.  The judge instructs the jury that he is presumed by law to be guilty — unless he can prove he is not.

3.  Drunk driving.  The prosecution produces evidence of a breathalyzer test that the defendant’s blood-alcohol level was over .08%.  The judge instructs the jury that they must convict him (of both driving under the influence and driving over .08%) — unless he can prove he is innocent.

In the first two cases, the convictions would immediately be reversed on appeal — and the judge probably castigated for both shifting the burden of proof from the government to the defendant and violating his presumption of innocence. The Virginia judge is simply saying that the third case should be no different.

"The Fifth Amendment," said O'Flaherty, 59, "is an absolute protection against requiring the defendant to say or do anything in the course of a trial. . . . The Fifth Amendment means the defendant can sit there, not say or do anything, and at the end of the case say, 'Can I go home now?' " 

The judge is well regarded by lawyers who practice before him and has received high marks in Fairfax Bar Association evaluations. He listens carefully to every last speeder and drunk driver and clearly explains his rulings. He has been a judge in Fairfax for 15 years and said he would like reappointment to another term in 2008. But he also said he would be perfectly satisfied if the legislature decided not to renew him in light of his stance on the drunken driving law.

After O'Flaherty dismissed one drunken driving case in July, in which police said the defendant had a .21 blood alcohol level, and another in early August, Fairfax prosecutors began dismissing the cases themselves before trial and then indicting the drivers in Circuit Court. But Oct. 12, when veteran Assistant Commonwealth's Attorney Kathryn S. Swart tried to do that with a driver who she said had a .20 blood alcohol level, O'Flaherty would not allow it.

Swart argued with the judge, then declined to call any witnesses, prosecutors said. O'Flaherty swore in the defendant and then dismissed the case.

The next day, Assistant Commonwealth's Attorney Jenna Sands asked O'Flaherty to recuse himself from a DWI case, saying it appeared that he would not consider all the evidence. "I'm going to consider all the evidence," the judge told her. "I'm just not going to have a presumption that requires the defendant to testify."

Sands asked him to allow her to dismiss the case so it could be indicted in Circuit Court. "That's denied," O'Flaherty said. "That's unethical. That's called 'forum shopping.' "

Sands tried to argue, but the judge cut her off. "I heard a whining diatribe yesterday from one of your associates," O'Flaherty said. "Next time I hear that from her, I'll put her in jail. You might tell her."

O'Flaherty explained that he had allowed prosecutors six dismissals without cause, so those cases can rise through the system and possibly to the appeals courts, where a formal opinion could be issued. "Half a dozen seems like a reasonable number," the judge said. "After that, there's no reason not to proceed in a regular manner."

He then heard evidence of the defendant's driving and performance on a field sobriety test -- the blood alcohol test was not submitted -- and dismissed the case. Several days later, after receiving evidence that a driver had registered .11 on a breath test but had not failed all the field sobriety tests, he dismissed that case.

O'Flaherty also believes it is unfair to presume that a breath test taken 90 minutes or more after a traffic stop is an accurate reflection of a driver's blood alcohol content at the time the person was driving. Defense lawyers have argued that the blood alcohol content of someone who drinks immediately before driving could still be rising when the person was tested later.

Corinne Magee was the defense lawyer who first won a DWI case in front of O'Flaherty by citing the 1985 Georgia case of Francis v. Franklin . She said the idea to use the Francis case came from everyday discussions among lawyers in the courthouse hallways about how to defend DWI cases.

O'Flaherty said that he was not disregarding blood alcohol results and that he allowed them as evidence when they were properly obtained. But he said alcohol affects people in different ways, so presuming someone with a .08 blood alcohol content is drunk might not be correct.

Similarly, the judge said, "sometimes these tests are taken two hours after" an arrest, and there's no evidence of the blood alcohol content at the time of the traffic stop. O'Flaherty said one way to quickly obtain a blood alcohol reading would be to have a mobile van available with breathalyzer equipment, though he realized that would be costly.

"Criminal law shouldn't be built around saving a buck," O'Flaherty said. "We shouldn't convict people because it's cheaper and easier."

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