Fairfax Judge Declares DUI Statute Unconstitutional Fairfax General District Court Judge Ian O'Flaherty has declared that portions of Virginia's laws against driving while intoxicated are unconstitutional, because the statute in question contained an impermissible presumption of guilt.

The basis for Judge O'Flaherty's ruling is that all elements of a crime must be proven by the prosecution beyond a reasonable doubt. Therefore, any statute which makes a finding of guilt mandatory on the finding of a fact, a so-called "mandatory presumption" or "irrebuttable presumption" violates that requirement, and therefore violates the Constitution. Contrast this with statutes which allow an inference to be drawn from the finding of a fact, the so-called "permissive inference". "Permissive inference" statutes are constitutional, "mandatory presumption" statutes are not constitutional.

As Justice Brennan explained in the case of Francis vs. Franklin, 471 U.S. 307 (1985), mandatory or irrebuttable presumptions impermissibly shift the burden of proof, and this is wrong.

For example, in the statute in question, instead of requiring the prosecution to prove guilt beyond a reasonable doubt, once the prosecution proves the predicate fact (here, that the accused's blood alcohol level was 0.08 or more at the time the test was run) then the defendant is automatically guilty of driving under the influence of alcohol.

But, as attorney Corinne Magee successfully argued to Judge O'Flaherty, the blood alcohol level may have been lower (or even higher) when the person was driving the vehicle, because blood alcohol level depends on a number of factors, including the size of the person, the amount of alcohol drunk, the timing of the consumption of alcohol, and other factors.

Kudos to Ms. Magee for a perceptive and cogent argument, and to Judge O'Flaherty for upholding the Constitution. We all abhor drunk driving, but the Constitution cannot be circumvented in the pursuit of expedience.  ¶ 3:42 PM