The Washington Post and a Northern Virginia judge:
Judge Ian M. O'Flaherty made it known in July that he felt Virginia's DWI law
unfairly deprived defendants of the presumption of innocence if breath tests
showed that they had a blood alcohol content of .08 or higher, levels at which
people are presumed to be intoxicated.
(...)
Critics say O'Flaherty, a General District Court judge, is endangering
public safety by returning drunk drivers -- some with alcohol levels of twice
the legal limit -- to the roads. But some legal experts are sympathetic, saying
the judge might be making a valid argument and protecting the constitutional
rights of all motorists.
(...)
The judge said in an interview that he recently was made aware of a 1985 U.S. Supreme Court ruling that reversed a Georgia murder conviction because the jury had been told to presume that, if the suspect was "of sound mind," he had the intent to kill.
As it does in all states and the District, Virginia's drunken driving law states that, for anyone with a .08 or higher reading on a breath test, "it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged
offense."
Prosecutors point out that Virginia's law creates a "rebuttable presumption," meaning the defendant has the opportunity to prove it wrong. But O'Flaherty said that wrongly shifts the burden of proof from the prosecution to the defense.
"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?' "
No other judge in Fairfax -- or elsewhere in Virginia, as far as can be determined -- has joined O'Flaherty. But the judge said some other jurists have told him they
agree with him. "I had one judge tell me, 'I'd rule that way, but I don't have
the guts to,' " O'Flaherty said. "I told him, 'You should be driving a truck.'
"
(...)
Steve Oberman, a Tennessee lawyer and head of the National Association of
Criminal Defense Lawyers' DUI committee, said similar arguments about
presumptions in the law had been successful in various courts across the country
over the years. State supreme courts in Massachusetts and Colorado have ruled
exactly as O'Flaherty has on presumptions in drunken driving cases, he
noted.
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.