VA Judge Says Parts of DWI Laws Illegal

[dren]

Has anyone else seen this? Like the DUI offenders need any more help getting off.

http://www.washingtonpost.com/wp-dyn...081102079.html

[pkagel]

Hmmm, wonder how often he drives drunk..............

[gotthblues]

that aint no lie,,it appears he has a vested intrest.

[webjeep]

He is just a district court judge, his decisions carry no bearing outside of his court and do not constitute any case law. The local prosecutor for Fairfax has begun direct indictments on DUI's to circuit court to avoid having to deal with the judge. The judge will probably not last too long, the general assembly just intensified the DUI laws and they are the ones who appoint the judges.

[Malcontent]

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.

Imagine that, someone actually will make police and prosecutors work to make sure the person was actually intoxicated (Innocent until proven guilty, what a concept!). Not just because some gizmo says at 0.08 every person is intoxicated per se.

So to get around this, prosecutors will go to another judge who doesn't mind trampling of the Bill of Rights. Yeah, such a nice country we live in that we want to take away rights from people because of a substance they have in their bodies.

If the person is falling down drunk, slurred speech, stumbling all over the place, should be pretty easy to convict anyway (unless you don't have camera's in your police cars). Or do most of the people in the 0.08-.1, really not show enough signs of impairment, and would get off since they aren't really impaired, except for this nice little gizmo, that says every person blowing into this is an average person, and if it's over .08 your guilty.

Does anybody here know how many average people we have in the US?

[7mmMag]

Imagine that, someone actually will make police and prosecutors work to make sure the person was actually intoxicated (Innocent until proven guilty, what a concept!). Not just because some gizmo says at 0.08 every person is intoxicated per se.

So to get around this, prosecutors will go to another judge who doesn't mind trampling of the Bill of Rights. Yeah, such a nice country we live in that we want to take away rights from people because of a substance they have in their bodies.

If the person is falling down drunk, slurred speech, stumbling all over the place, should be pretty easy to convict anyway (unless you don't have camera's in your police cars). Or do most of the people in the 0.08-.1, really not show enough signs of impairment, and would get off since they aren't really impaired, except for this nice little gizmo, that says every person blowing into this is an average person, and if it's over .08 your guilty.

Does anybody here know how many average people we have in the US?

Wow, how many DUI's are on your record? I don't know where to start in responding to this drivel. In fact, i'm not sure I want to, as I don't feel like getting into a ****ing match. Well, here it goes.

1) In response to your first paragraph. I don't really have a response, as you only seem interested in ****ing people off.

2) For your second paragraph. So, its ok for lying defense attorneys to use this tactic (finding a judge who they know will be biased)? I don't see any problem with prosecuters wishing to go before a judge who is both tough and fair, and that they trust will conduct the procedings in an impartial manner. I would'nt call that "trampling" on the Bill of Rights. We have a judge in our county (a substitute) who all the defense attorneys crave to go before. Why you ask? Because he is very anti-police (proven by public statements he has made). I've seen child molesters and violent domestic abuse suspects walk scott free from his courtroom. This WOULD NEVER happen before our regular judge, who has been proven through time to be fair, unbiased, and consistant in how he conducts his proceedings. With our regular judge, if we (the police) screw up, he tells us, and deals with it appropriately (i.e. suppression of evidence/statements).

3) On to the next one. I've seen drivers show heavy impairment at a .06% (no drugs present other than alcohol) and i've seen others perform relatively well on field sobriety tests at .15%. Just because they can stand on one leg and walk a straight line DOES NOT mean they are not impaired. Some individuals are very experianced drinkers, and can mask their impairment pretty well. That's were HGN comes in. Bottom line is this, if I have probable cause to arrest an individual for drunk driving, I do. If not, I don't. Pretty simple, yes or no?

4) I have no idea what you mean with your last question.

[Malcontent]

That's right, becasue I don't agree with the current laws, I must have several DUI's. When in fact, I don't have any. I have had the pleasure of the Maddness though, becasue I play in a band, and I'm driving at night.

Not trying to **** anyone off, making the comment that only in DUI cases do defendants lose pretty much all of their rights. What is wrong with "Innocent Until Proven Guilty"?

So I take it your implying that anyone who drinks is the same as a murderer and child molesters?

If some at 0.06 is intoxicated they should be arrested, but if someone at .1 shows no signs of impairment other than a machine that says you are, there is something wrong with that. So you can pass the FST's, but your still impaired because of some level of the substance in your body.

Having a per se law is an abomination of due process. I see, all defense attorneys lie, and of course all police and prosecutors are above reproach.

My point on the last one, is the the breatalyzer is an estimate of the alcohol in your blodd based on a 2100:1 partition ratio. Not everyone is average, are they?

[ufresdave]

Malcontent, I recognize some of the points youre making and im not here to bash you. I just want to throw out some points to consider. Here in FL (and I would assume most places), a violator is only placed under arrest once PC has been established (via FST's, driving pattern, officer interaction). PC must be established PRIOR to breath test. That means there must have been PC to arrest regardless of breath test results. We cannot just take people off the streets, have them blow, and arrest them if they are over .08. The breath test, so to speak, is just icing on the cake (evidentiary icing).

[gonefishin]

Malcontent, I recognize some of the points youre making and im not here to bash you. I just want to throw out some points to consider. Here in FL (and I would assume most places), a violator is only placed under arrest once PC has been established (via FST's, driving pattern, officer interaction). PC must be established PRIOR to breath test. That means there must have been PC to arrest regardless of breath test results. We cannot just take people off the streets, have them blow, and arrest them if they are over .08. The breath test, so to speak, is just icing on the cake (evidentiary icing).

I agree with you 100 percent.....and its the same way in Maine....you do not get arrested until after you fail FST's. So in Maine, and I assume in many other states, you are innocent until proven guilty...you don't get arrested unless you fail FST's. I will agree with Malcontent that some people can function at at .1 while others seem bombed at a .06. So, yes, sometimes people get away while driving over the legal limit of .08 because they pass field sobriety tests. But there has to be a limit...much like speed limits there has to be a limit to what a persons BAC can be while operating a motor vehicle...and in most states, it has been decided that .08 is the limit.

[Da Po-po]

This is a very interesting legal argument, but after a great deal of thought, it really doesn't hold much water. On face value, it does make a great deal of sense. The only thing the "per se" limit does is says the person is considered intoxicated under the law, not guilty of any offense. Since the law requires one to be in actual control of a vehicle while under the influence, the .08 limit isn't anything but an evidentiary standard. The limit is not some abstract number that legislators picked, but is based on numerous scientific studies that has established the .08 level as one where the overwhealming majority of the population is impaired to the point where they can't safely operate a vehicle. The other catch here is that no driver is going to be stopped to start with if they don't show signs of impairment to start with. There is NO legal justification allowing officers to make random traffic stops without probable cause for the sole purpose of seeing whether someone is intoxicated. The .08 standard is not really any different than the legal requirement that someone be deceased to fit the statutory element to be charged with murder. Still a very interesting argument, though.

[OfficerDotCom]

Reminder here folks. Police bashing has no place on this site.

Those users doing so will be removed at next instance.