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Fairfax judge: DUI law unconstitutional

Corinne Magee didn’t enter the courtroom of Fairfax County General District Judge Ian M. O’Flaherty with a lot of hope for her drunken driving defendant.
The legal argument she was relying on was based on a 20-year-old U.S. Supreme Court case, and even if she won the legal point, she expected the police officer’s testimony about her client’s appearance and conduct after his arrest to be enough for a conviction.
But O’Flaherty accepted her argument that Francis v. Franklin, 471 U.S. 307 (1985), does not allow a state to avoid its burden of persuasion by creating a presumption of guilt based on related facts. O’Flaherty acquitted her client.
Magee contended Virginia DUI law creates a presumption of guilt in two respects: permitting a judge or jury to convict solely on a certificate that the defendant’s blood alcohol content was 0.08 percent or higher, and allowing the judge or jury to assume that the level on the certificate relates back to the time the defendant was actually driving.
Word of Magee’s win spread quickly last month among traffic lawyers after she posted her motion to declare Virginia’s DUI law unconstitutional on the Web site of the Virginia Association of Criminal Defense Lawyers.
“It’s a fascinating argument,” said G. Barton Chucker, a Richmond lawyer who specializes in traffic work. “I certainly intend to make it.”
David L. Heilberg, a Charlottesville attorney with a substantial traffic practice, already has filed a motion in general district court there. “I don’t know that any judges here are going to go for it,” he said.
Indeed, O’Flaherty’s ruling represents the opinion of one judge at the lowest tier of Virginia’s court system and isn’t binding on any other court.
“He’s always been an independent thinker,” Magee said of O’Flaherty, who was a prosecutor and a criminal defense attorney before he was appointed to the bench.
He is not regarded as defense-oriented, however, she said, noting that he has a reputation for being particular tough on defendants accused of reckless driving based on speed.
Fairfax County prosecutors are withdrawing DUI cases pending before O’Flaherty and taking them to circuit court for indictment.
Magee questions the propriety of such a maneuver because state law requires prosecutors to show “good cause” for such withdrawals.
“It’s clear that O’Flaherty wants to see these cases go upstairs and see where it goes from there,” she said. Defense attorneys who lose after making Magee’s argument will be able to appeal convictions to the Virginia Court of Appeals, and state law permits prosecutors to appeal a circuit court ruling that a state law is unconstitutional.
Magee and Chucker noted that the Virginia Court of Appeals has been unreceptive to similar defense arguments in the past.
In companion cases in 1996, one of which Chucker argued, the intermediate appellate court, sitting en banc, upheld the presumption that anyone under 21 with a blood alcohol content greater than 0.02 percent had consumed alcohol illegally. The defense had the burden of rebutting the presumption once the prosecution produced the scientific evidence, the court said.
Only Judge James W. Benton Jr. dissented. Benton cited federal cases that predated Francis for the proposition that the statute “unlawfully permits a conviction to be had based upon a presumption rather than proof and upon unlawfully shifting the burden of proof to an accused.”
Chucker and Heilberg said defenses such as that raised by Magee are in some respects a response to the harsher penalties the General Assembly has imposed for drunken driving convictions.
When the stakes are raised, “lawyers become more expensive and creative,” said Chucker, who advised a legislative subcommittee that recommended enhanced penalties in 2004.
As a result of the enhancement that requires a minimum sentence of five days for defendants with a blood alcohol level of 0.15 percent, “I’m having college girls thrown in jail,” Heilberg said. They also have to pay $70 or more a month for an ignition interlock system to get a restricted driver’s license.
“People want tougher DUI laws until it happens to you or your child,” Heilberg said.
Chucker said public perception of the enhanced penalties, such as a mandatory three or six months in jail for a third DUI conviction, has been slow in coming.
“People are not going to get it until it happens to the people next door or until it happens to Uncle Jim.”

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