In the state of Virginia, as in the rest of the country, drivers who register above .08 percent on a breathalyzer test are presumed to be impaired. Drivers who get hauled before Ian M. O'Flaherty, a general district judge in Fairfax Country, can make a presumption of their own: Their encounter with the Virginia court system will be short and sweet. O'Flaherty believes Virginia's drunk driving laws are unconstitutional, and he has been dismissing cases based on those laws since July.
O'Flaherty and his defenders say the assumption that a driver with a blood-alcohol level of .08 percent or higher is impaired violates the driver's right to a presumption of innocence. Since alcohol affects different individuals differently, O'Flaherty believes it's the state's responsibility to prove a defendant actually was impaired, not the defendant's responsibility to prove she can handle her alcohol. While prosecutors point out that the law affords defendants a right to rebut the charges, O'Flaherty says that won't cut it in his courtroom.
The local media have called O'Flaherty, who once dismissed five cases in a single week, a "public menace" with a "private vendetta" against common sense, but the judge is hardly alone in his concern about DUI laws. Supreme courts in other states have ruled the same way as O'Flaherty based on similar reasoning, and neighboring D.C. recently raised its standard for intoxication after a woman was arrested for driving after drinking a single glass of wine. In Massachusetts, state Rep. Eugene O'Flaherty (D-Chelsea) is spearheading a push to eliminate parts of a new DUI bill that he and other legislators say are unconstitutional.
As Judge O'Flaherty continues his one-man crusade in Virginia, state prosecutors grow more exasperated. In October Assistant Prosecutor Jenna Sands asked the judge to recuse himself if he wasn't going to consider all the evidence. "I'm going to consider all the evidence," the judge told her. "I'm just not going to have a presumption that requires the defendant to testify." He dismissed the case.�