It was a creative legal argument, and a Fairfax County, Va., judge bought it, declaring key parts of the state’s drunken driving laws unconstitutional, says the Washington Post. In a decision the Post says could prompt similar challenges nationwide, Judge Ian M. O’Flaherty cited a decades-old U.S. Supreme Court ruling and dismissed charges against three alleged drunk drivers. The judge said 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. “There will be similar motions everywhere, no doubt about that,” said Steven Oberman, chairman of the DUI defense committee at the National Association of Criminal Defense Lawyers. “There are lawyers everywhere who are looking at this issue again in a different light.”
Corinne Magee, the attorney whose challenge led to O’Flaherty’s ruling, said the decision was based on the 1985 U.S. Supreme Court case Francis v. Franklin , which dealt with a prosecutor’s obligation to prove all elements of a crime beyond a reasonable doubt. Magee is troubled by the law because it presumes intoxication at 0.08 and that the driver was at that level while driving, even if the test was given hours after the driver was stopped. She said a person’s blood alcohol level can fluctuate depending on when the last drink was consumed and how that person’s body metabolizes alcohol. Prosecutors and some defense attorneys disagree, saying that laws in the 50 states that have established a presumption of intoxication at 0.08 have been upheld even when similar arguments were raised.