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 preside 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.
Read the article here.
via TalkLeft.
On a certain level, it is an interesting point. The argument is that .08 and it's prior .10 iteration actually use a presumption to determine the ultimate issue of guilt, thus evicerating the "presumed innocent" standard by a legislatively required presumption of guilt.
But I don't think I buy this. First, there are other presumptions allowable in criminal law - for example, presuming one intends the consequences of his/her actions:
200.1 General Criminal Intent
200.1 General Criminal Intent - Definition And Proof. To commit a crime a person
must intend to do an act which is against the law. While it is not necessary that a person knows the act is against the law, it is necessary that the person was aware [he] [she] was doing the act and [he] [she] did it voluntarily, not by mistake or accident. You may, but are not required to, conclude a person intends the natural results of [his] [her] acts.
(NOTE AND TANGENT: the instruction is from a mock trial, it's not online in it's entirety anywhere else that I can find, though the Supreme Court does discuss it in this case, and the Court of Appeals references it by number in this one. Why don't we put jury instructions online?).
Arguably, the OWI presumption is just another allowable inference to establish an element of a crime, that of intoxication. The State still needs to prove the driving/operating part. Also, there's the necessity of proving that the defendant tested over the .08 legal limit. The forensics and scientific testimony needed to establish the veracity of the test are not minor; cases in which the intoxilyzer results are challenged can be quite protracted. It's not like the State can just say "trust me on this one" if the defendant challenges the readout.
It should be interesting to see what comes of this one. If nothing else, props to defense counsel for an interesting argument.
UPDATE: I should also point out that Iowa's OWI law is different from Virginia's.
Iowa's OWI law states:
321J.2 Operating while under the influence of alcohol or a drug or while having an alcohol concentration of .08 or more (OWI).
1. A person commits the offense of operating while intoxicated if the person operates a motor vehicle in this state in any of the following conditions:
a. While under the influence of an alcoholic beverage or other drug or a combination of such substances.
b. While having an alcohol concentration of .08 or more.
c. While any amount of a controlled substance is present in the person, as measured in the person's blood or urine. . . .
8. In any prosecution under this section, evidence of the results of analysis of a specimen of the defendant's blood, breath, or urine is admissible upon proof of a proper foundation.
a. The alcohol concentration established by the results of an analysis of a specimen of the defendant's blood, breath, or urine withdrawn within two hours after the defendant was driving or in physical control of a motor vehicle is presumed to be the alcohol concentration at the time of driving or being in physical control of the motor vehicle. b. The presence of a controlled substance or other drug established by the results of analysis of a specimen of the defendant's blood or urine withdrawn within two hours after the defendant was driving or in physical control of a motor vehicle is presumed to show the presence of such controlled substance or other drug in the defendant at the time of driving or being in physical control of the motor vehicle.
Virginia's law states:
§ 18.2-266. Driving motor vehicle, engine, etc., while intoxicated, etc.
It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood. A charge alleging a violation of this section shall support a conviction under clauses (i), (ii), (iii), (iv), or (v).
For the purposes of this article, the term "motor vehicle" includes mopeds, while operated on the public highways of this Commonwealth.
§ 18.2-269. Presumptions from alcohol or drug content of blood.
A. In any prosecution for a violation of § 18.2-36.1 or clause (ii), (iii) or (iv) of § 18.2-266, or any similar ordinance, the amount of alcohol or drugs in the blood of the accused at the time of the alleged offense as indicated by a chemical analysis of a sample of the accused's blood or breath to determine the alcohol or drug content of his blood in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 shall give rise to the following rebuttable presumptions:
(1) If there was at that time 0.05 percent or less by weight by volume of alcohol in the accused's blood or 0.05 grams or less per 210 liters of the accused's breath, it shall be presumed that the accused was not under the influence of alcohol intoxicants at the time of the alleged offense;
(2) If there was at that time in excess of 0.05 percent but less than 0.08 percent by weight by volume of alcohol in the accused's blood or 0.05 grams but less than 0.08 grams per 210 liters of the accused's breath, such facts shall not give rise to any presumption that the accused was or was not under the influence of alcohol intoxicants at the time of the alleged offense, but such facts may be considered with other competent evidence in determining the guilt or innocence of the accused;
(3) If there was at that time 0.08 percent or more by weight by volume of alcohol in the accused's blood or 0.08 grams or more per 210 liters of the accused's breath, it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense; or
(4) If there was at that time an amount of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood, it shall be presumed that the accused was under the influence of drugs at the time of the alleged offense to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely.
B. The provisions of this section shall not apply to and shall not affect any prosecution for a violation of § 46.2-341.24.
(emphasis mine).
Note the difference: Iowa law defines the offense OWI as operating while having a BAC over .08, period. It indicates that a test over .08 within 2 hours of the offense gives a presumption that the test was over .08 at the time of the offense. It does NOT state that a test over .08 gives a presumption that the person was "under the influence," "under the influence" is actually a separate prong of the OWI violation that can be proven without a test or even with a test under .08. Intoxication, while used in the title of the statute, is not actually included in any of the prohibatory language itself. Virginia does it a bit differently: it uses similar prohibitions, both over .08 and "under the influence" are prohibited, but in different prongs. However, it's presumption language doesn't state that a test over .08 establishes a presumption it was over .08 at the time of the offense, rather it states that a test over .08 establishes the person was intoxicated at the time of the offense. The drafters were getting at the same thing - you have a window of opportunity in which to test and the test will reflect the BAC at the time of operation. But in this case, the slight difference in phraseology got one judge to throw out the Virginia statute.
Still, the whole thing's an interesting topic for debate.
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