And the Winner of the First Foster Brooks Award in Jurisprudence Goes To…


…Fairfax, Virginia county Judge Ian M. O'Flaherty, who is waging a one-man campaign against his state's drunken driving laws as unconstitutional. From the Wash Post account:

"The Fifth Amendment," said O'Flaherty, 59, "is an absolute protection against requiring the defendant to say or do anything in the course of a trial. . . . The Fifth Amendment means the defendant can sit there, not say or do anything, and at the end of the case say, 'Can I go home now?' "

No other judge in Fairfax -- or elsewhere in Virginia, as far as can be determined -- has joined O'Flaherty. But the judge said some other jurists have told him they agree with him. "I had one judge tell me, 'I'd rule that way, but I don't have the guts to,' " O'Flaherty said. "I told him, 'You should be driving a truck.' "

O'Flaherty--did he have to be Irish?--is particularly incensed over the way the burden of proof in DWI cases is routinely shifted back to defendants. Critics say he's abetting a public safety problem by letting boozing drivers get away with impaired driving. He's saying something else:

O'Flaherty said that he was not disregarding blood alcohol results and that he allowed them as evidence when they were properly obtained. But he said alcohol affects people in different ways, so presuming someone with a .08 blood alcohol content is drunk might not be correct.

Similarly, the judge said, "sometimes these tests are taken two hours after" an arrest, and there's no evidence of the blood alcohol content at the time of the traffic stop. O'Flaherty said one way to quickly obtain a blood alcohol reading would be to have a mobile van available with breathalyzer equipment, though he realized that would be costly.

"Criminal law shouldn't be built around saving a buck," O'Flaherty said. "We shouldn't convict people because it's cheaper and easier."

Have a snort and read more here.

Reason's Jacob Sullum questioned the wisdom of 0.08 percent blood alcohol concentration laws here. And I argued for a lower legal drinking age here.

Foster Brooks requiem here.

NEXT: Chucky's Cheese

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  1. This man is my personal hero.

  2. Seriously, O'Flaherty for Supreme Court!

  3. Uh oh, another activist judge trying to legislate values from the bench! What will MADD do?

  4. Good for him. There is this BS legal fiction that "driving is a privilege" and the State can therefore take away your licsence for asserting your Fifth Amendment rights by refusing a breathalyzer test. Its complete crap. The government should not have the right to discriminate against you because you asserted a constitutional right.

  5. He is one of the most visible judges in Fairfax: He often helps direct people to their courtrooms in the chaotic mornings, and he could be seen raking and blowing leaves from the courthouse's front plaza in autumns past, before a construction project closed the plaza.

    God bless him!

    O'Flaherty also believes it is unfair to presume that a breath test taken 90 minutes or more after a traffic stop is an accurate reflection of a driver's blood alcohol content at the time the person was driving. Defense lawyers have argued that the blood alcohol content of someone who drinks immediately before driving could still be rising when the person was tested later.

    This strikes me as odd. For the person who funnels 5 beers at a party then immediately drives a few miles to be drunk in the privacy of his own home, maybe this makes sense. But for all practical purposes, if a person still blows above the legal limit 90 minutes after being pulled over, the assumption that they were drunk at the time of the stop seems like a reasonable one. Maybe I'm wrong.

  6. As someone who practices before Judge O'Flaherty regularly, I can't say I'm surprised. I wouldn't call the guy a maverick, he definately knows what a Judge's job really is and has no qualms about doing it regardless of what anyone thinks.

  7. And if one objects that maybe the person was at .07 at the time of the stop and jumped to .09 a half hour later, well, tough shit. As the judge points out, the number is an arbitrary one and shouldn't be the last word. So unless he just raised it to demonstrate the utter impracticality of making the whole process legitimate, the mobile breathalyzer van on-call 24 hours a day idea seems totally irrelevant to the principle he's trying to uphold.

  8. I wonder if this dude's heard about the war on drugs. Sounds like he can be reasoned with. I smell a new LEAP member.

  9. There is this BS legal fiction that "driving is a privilege" and the State can therefore take away your licsence for asserting your Fifth Amendment rights by refusing a breathalyzer test.

    Or, to put this good point a slightly different way: even if driving is a privilege doesn't mean that that due process is irrelevant and it doesn't mean that the values underlying the 5th amendment must be excluded from a consideration of what process is due in this context.

  10. Yes, he had to be Irish

  11. When I lived in Boston, the bars closed at 2am and the T stopped running at 1am. Therefore, it was totally not my fault that I drove the wrong way down Comm Ave (twice). The defense rests.

  12. Driving being a priveledge is irrelevent. When being accused of a CRIME, and DUI is a *criminal offense*, you most certainly should be able to assert your fifth amendment--any any other applicable--rights.

    This judge is spot on. In this culture of hot buttons, lobbying and PR issues, it's time that proper attention is paid to rights and due process.

  13. Did not mean to repost practically the same thing Dave W did, sorry. Hadn't seen it yet, D'oh!

  14. That lowering the drinking age idea is a good one I think.

    I was a driving insrtuctor for quite a while, and always thought we had our order of operations backwards on driving age and drinking age.

    Right now, we allow kids to start driving at an age anywhere from 15 to 17 in most states. So they have anywhere from 4 to 6 years to become so complacent with driving that they consider it easier than walking.

    Then they turn 21. At which point we hand them a bottle of Tequila and say, 'Have a party!'.

    The only wonder is why so many survive to the age of 22.

    We should reverse this. Allow drinking much earlier. Maybe even have no age limit. Let them learn that drinking screws you up, causes headaches, upset tummies, and puke-colored shoes.

    THEN hand them a drivers license, knowing they already know how to handle their liquor.

    I suggest 13 for drinking, 25, or even 30 for driving.


  15. It's incredible how little it takes for one judge to stand out as being Not-As-Terrible as the others.

  16. matthew,
    In many states showing that the defendent had a BAC level above .08 is all the prosecution has to show (and often all the evidence they have) So if the test is taken an hour or more after arrest, the defendent has a strong point. The statute requries the defendant to be at .08 at the time he was driving, not an hour later. And yes, since you're BAC level will go up slowly and down slowly after time, it is a relevent topic to raise, and an occasionally successful tactic of the DUI defense bar.

  17. I am against the drinking age, not because it prevents people from drinking until they are 21, but because it does not prevent one single American from drinking.

    Every single one of the police officers attempting to enforce the law drank before he was 21. The only thing the law does is make everyone a criminal. It is only a small step from there to drinking and driving.

    The only thing stopping people from drinking is good parenting.

    I have mixed feelings one the DUI laws. But I like where the judge is coming from.

    Also I am a little confused about the driving is a privelidge vs a right. I don't know that the state should be issuing privelidges like that, it seems like a poor excuse to not follow due process.

  18. Also I am a little confused about the driving is a privelidge vs a right. I don't know that the state should be issuing privelidges like that, it seems like a poor excuse to not follow due process.

    I think the idea is that the fines or jail associated with DUI are a crime, which directly implicates the 5th Amendment. However, losing your license for refusing a test is not a crime -- no fines or jail -- just loss of license, so the portion of the law that takes away your license is a loss-of-privilege-part, rather than a law part.

    From what I understand, here is how it works:

    1. There are 4th and 5th amendment concerns about forcing ppl to take drunk tests, especially when (as usual) no warrant is sought or issued.

    2. However, the police want to force ppl to take the tests anyway. However, they are also worried that this is unConstitutional.

    3. In order to take care of the problems noted in #2, the police don't force you to take a drunk test because you may have committed a crime (even though you may have committed a crime). Rather, you are incentivized to take the drunk test to avoid losing your driving privileges. In other words, the direct consequence of refusal to take the drunk test is a mere loss of privileges, but: (1) the refusal is not a crime in itself; (2) the refusal carries no fines/jail; and (3) no adverse inferences if they do proceed to criminal trial (presumably on DUI charges).

    (4) the net effect is that police usually get "voluntary" co-operation on their desired tests so that the driving "privilege" is not lost. Of course, those test results will end up being used against the accused in a criminal trial, but that is just considered legal happenstance -- the test was consented to for reasons unrelated to the criminal trial.

    somebody correct me if I have this wrong, but I think that is a reasonable approximation of the truth. You can see why the Irishman has some problems with all this.

  19. Ok I have to disagree with this post and most of the comments. I think bac tests, blood work in general and definitely brethalizers fall under the fourth ammendment search and seizures clause, not the fifth ammendment. The similarities to seizure of personal items are much greater than to compeling someone to testify against himself, and similarly the possibilities for abuse are more in line with fourth amendment protection than fifth.

    I agree bac is a suboptimal choice for criminalization, but would rather have this fought out in the legislatutre. Judicially I would argue that it falls within the state police power, though it could be barred by a state constitution.

  20. Dave W

    I am familiar with the arguments and at some level they make sense. The problem is that in our society driving is a very big deal and the threat of loosing your ability to do so is very coercive. If taking your ability to drive is just administrative, why not threaten everyone who is arrested with loosing their licenses. Afterall its just administrative, no crime here. The next time we arrest someone and they assert their miranda rights, fine, they loose their license for a year. I don't see any conceptual difference between doing that and taking their license for not taking a breathalyzer test. The breathalyzer is a search that you are entitled not to consent to just like you are entitled not to incriminate yourself.

  21. Here's my favorite bit:

    The next day, Assistant Commonwealth's Attorney Jenna Sands asked O'Flaherty to recuse himself from a DWI case, saying it appeared that he would not 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."

    Sands asked him to allow her to dismiss the case so it could be indicted in Circuit Court. "That's denied," O'Flaherty said. "That's unethical. That's called 'forum shopping.' "

    Sands tried to argue, but the judge cut her off. "I heard a whining diatribe yesterday from one of your associates," O'Flaherty said. "Next time I hear that from her, I'll put her in jail. You might tell her."

  22. I can see going the wrong way down Tremont Street but how the F&^* do you go the wrong way down Comm. Ave.?!

    Perhaps the number should be set at a rational level and then enforce it properly. When people who have six DUIs can still legally drive we can't say we're being serious about this.

  23. I agree, John. I was just trying to explain the system we are up against.

  24. Eryk, I wonder how that's possible. I was hit head-on by a drunk drive (bac 0.24) whose license had been revoked.

  25. Not sure if this is still the case, but as I recall from my days in Illinois Drivers Ed, refusing a test was a fineable offense. The state's rationale was that you consent to the test by accepting a drivers license in the first place.

  26. As for that driving is a privilege crap:

    The U.S. is a signatory to the Helsinki accords, which guarantee the rights of individuals to travel. In modern North American culture, being denied the ability to pilot a vehicle greatly restricts one's travel rights. Ergo, requiring driving licenses, which can be denied arbitrarily by the state, is a human rights violation. We should get the OCSE on this, pronto!

    [/tongue, cheek]

    One sleazy tactic of Da Offasuhs is detaining someone who may be "on the bubble" for a DUI and delaying a breath test in order to allow the operator's body to metabolize more alcohol, then obtaining a .08% reading that they couldn't have gotten at the time of the initial stop. Had Joe Driver not been stopped, he might have been home and in his bed before his BAC crossed the magic line.

    And another thing: the "police power" is nowhere written in the U.S. Constitution. It is only posited as a consequence of the powers reserved to the states and the people in the 10th amendment. As such, it is no more important than the rights retained by the people in the 9th Amendment, of which intrastate travel must be one. Interstate travel has specific Federal constitutional protection.


  27. I think, perhaps, the most tragic aspect of this case is the possibility that he will lose his position as judge. He has chosen to apply the law to the cases, and by doing so is in jeopardy of losing his job.

    This seems to suggest, that the only true unequivical way to obtain a fair trial is to have it heard before the supreme court where, as we all know, threats of termination are not a factor. This is a sad testimant to our judicial system.

  28. Additionally, I also do not see the argument that driving is a priviledge. Freedom of movement is a right (I think) and ownership and use of private property (one's car) is also a right.

    Driver's licenses are a method of regulating the population in the act of exercising it's rights. Of course it is all in the name of good order, discipline, and public safety etc...

  29. Another set of comments showing why libertarians will never become a majority party in the US.

    The idea behind DUIs is to get the damn idiots who are drunk off the road, get it? If they want to simply crash themselves into trees at 80 mph and BAC of .24 I'd say go ahead and don't forget to sign the organ donor card beforehand so we can re-use your hearts and kidneys and whatever, thank you very much.

    Problem is, they don't do that. Drunk idiots have a high chance of taking other people with them, whether it be other people in the car with them, the innocents in the other car they just rammed into at high speed, or whatever.

    Frankly, I'd like to be able to drive along highways without having to wonder if I'm going to be taken out by Mr. "I only had 5 beers, Officer!" Being able to bring a lawsuit against Mr. Lush going to do be a fat set of good if we're both hamburger at that point.

    Basically, getting a driver's license is a privilege, not a right. Why otherwise do we have such things as driver's exams? We're certainly asking for a certain level of training and demonstration of mastery of the medium. And the commentator above who blethered on about freedom of transport etc., yes, there IS a way to get around without a car; it's called walking.

  30. tsz,

    I agree with you in principle. Driving is a privilege. The problem is, taking away the license is a pretty useless deterrent. They're just gonna drive anyway. I mean, what are the chances of getting caught?? And, I still hear about drunk driving deaths on the news almost every day.

    I think (someone correct me if I'm wrong) the libertarian view is that officers should go after people who are driving erratically and are posing a danger to other drivers, instead of (say) wasting their time at checkpoints pulling over everybody.

    That said... I'm happy I decided on a non-driving lifestyle that allows me to get as drunk as I want, where I want.

  31. Driving impaired is like shooting a gun around randomly. The odds are that you won't hit anybody, but if some idiot shot off a gun randomly you'd sure as hell call the police.

    As to drinking ages: My European friends tell me that alcohol is introduced gradually under parental supervision, and consequently they don't have nearly as many irresponsible drinkers. Oh, sure, they still have their share (every place does, including Utah I'm sure), but not nearly as many.

    Of course, they're from Old Europe. Maybe New Europe is different. 🙂

  32. Bless that judge. Although he seems to think that breathalizer is an accurate tool. I guess he doesn't read duiblog (

  33. If all of you want to understand how this driving is a privilege crap came about, then you should read Prof. Lessig's 1993 article on shifting contexts.

    Basically, this is the story:

    - there was a time when driving was a privilege, cars were expensive, roads were fewer and slower and lots of ppl simply didn't have cars

    - this primitive period is when legislatures and courts defined driving as a privilege, rather than as a right. These legislatures and courts may very well have set up the legal framework so that it optimally reflecte and served society and the status of driving.

    - The context shifts. Everybody gets cars. US takes foreign policy actions to secure cheap oil. Roads built. Everyone gets a car. Everyon's lifestyle comes to require a car (or more!!!).

    - Even though the context shifts, the law just keeps tracking along its primitive dirt road rut. Driving continues to be defined as a privilege in law even though it clearly is not in practice.

    - Law enforcement takes advantage of the mismatch between reality of driving and legal treatment of driving to do end run around 4th and 5th amendments.

    - Maverick judge complains but gets nowhere because nobody has bothered to read the 1993 Lessig article on shifting contexts (and/or his later work on latent ambiguities).

  34. Driving impaired is like shooting a gun around randomly. The odds are that you won't hit anybody, but if some idiot shot off a gun randomly you'd sure as hell call the police.

    But, of course the 4th and 5th amendments apply when it comes to reckless shooting crimes. Maybe they should apply to DUI situations, too.

  35. Hail the Irishman who's got the Plum's to stand up
    for what's right and not politcaly correct!

  36. Mr TZA,

    You emotional response and ad hominem remarks not withstanding, your statement:

    "Basically, getting a driver's license is a privilege, not a right. Why otherwise do we have such things as driver's exams?" Is a circular argument, and utter nonsense.

  37. As long as the draft age is lower than the drinking age, I proudly raise a one finger salute to this motherfucking country.

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