Fairfax Judge a Stickler About the Law, Say Prosecutors

Judge Ian O'Flaherty of the Fairfax General District Court has taken a seemingly moot-courtish approach to one of the most emotionally involved areas of law, dismissing DWI cases on the grounds that the statute is unconstitutional.

The Fifth Amendment's guarantee that a witness will not be compelled to testify against himself creates the famous "presumption of innocence," and makes unconstitutional any law that requires a criminal defendant to disprove an assumption. In the words of Judge O'Flaherty, "The Fifth Amendment means that the defendant can sit there, not say or do anything, and at the end of the case say, 'Can I go home now?' "

Virginia's DWI law (Va. Code §18.2-269), however, uses breath-based blood alcohol level tests to create a "rebuttable presumption" that the person is intoxicated if their blood alcohol is above .08. In other words, the statute doesn't convict them for having that much alcohol in their blood, but shifts the burden to them to disprove that they were driving while intoxicated. The law requires that the state prove that the person was driving, but lets the prosecutor simply assume that the person was intoxicated and wait for the person to present evidence that they were not.

A simple workaround would seem to be for the legislature to eliminate §18.2-269 and change §18.2-266 (the part of the DWI statute that sets out the crime) to require negligence in letting one's blood alcohol get above .08 (strict liability instead of negligence would also work, but I tend to get skittish about using that one because a person can commit the crime without even knowing that they have, and this cannot provide a deterrent; see, e.g., Staples v. United States). By changing the offense from being intoxicated to driving with a blood alcohol level above .08 should take care of the constitutional problems.


As a side note, §18.2-266 already provides that one can be convicted of DWI for either being intoxicated and having a blood alcohol above .08. I imagine that prosecutors shy away from the latter one because they have to show that that was the level at the time of driving, not several hours later when they get around to testing the suspect at the station. This would seem to be simply a problem caused by a shortage of the equipment and training needed to verify the blood alcohol levels.