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.