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Dismissals Of DUI Cases Jolt Lawyers

Dismissals Of DUI Cases Jolt Lawyers

By Jamie Stockwell and Tommy Nguyen

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 presides 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, and 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.

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