The Virginia Justice Lottery on DUI Convictions
General District Judge Ian M. O'Flaherty has continued to dismiss DUI cases on the grounds that the law is unconstitutionial. He began dismissing cases previously as we have reported before. Now The Richmond Times Dispatch reporting:
"Since then, prosecutors have done their best to keep DUI cases out of O'Flaherty's courtroom by temporarily dropping the charges and obtaining indictments in circuit court."
Judge Ian M. O'Flaherty allowed this, he in fact agreed to let six case take this route until prosecutors figured out how to counter the constitutional opinion he has on the presumption of innocence. Those six cases are gone, and now they are coming back to Judge O'Faherty and he has continued the dismissals. The angst of the prosecutors can be seen by this statement:
'"We are racking our brains trying to come up with some type of solution." "It offends my sense of justice that on the charge of driving while intoxicated, it's going to be a question of luck of the draw" that determines guilt or innocence.''
So in Fairfax, if you are the lucky DUI offender that gets assigned to O'Flaherty's court, you have just won the Virginia Justice lottery.
posted by B O B @ 10:21 AM
3 comments
3 Comments:
This is outrageous! DUI convictions are not gotten only with the blood/breath test results. They are gotten by considering the totality of the evidence presented by the officer. Something this judge has apparently forgotten. Things like erratic operation of the suspect's vehicle and how the suspect performs in a series of standardized field sobriety tests. The Intoxilyzer test and/or the blood test only confirms scientifically the image that the Police Officer should already be painting by his testimony. Also, and this is a biggie, The level of 0.08% BAC or BAL only presumes that the suspect's ability to safely operate a motor vehicle is IMPAIRED, not that he is necessarily intoxicated. There is a vast difference between the two. As such, it does nothing to the presumed innocence of the suspect. Kicking out cases because the Commonwealth has lock tight evidence is like kicking a murder case because the prosecution catches the suspect with the smoking gun and a body at his feet.
Thanks for the comment Jeff. And the sad thing is that if you are a prosecutor in Fairfax you can't ask for an appeal. A quirk of Virginia laws.
I guess I'll have to send Gravy Beard to Fairfax.
D L
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