A judge in the Washington, D.C. suburb of Fairfax County, Va., who believes Virginia’s drunken driving laws are unconstitutional has begun dismissing cases, including five DWI cases in a week, reports the Washington Post. He threatened to throw a veteran prosecutor in jail for arguing with him. Judge Ian M. O’Flaherty believes that Virginia’s DWI law unfairly deprived defendants of the presumption of innocence if breath tests showed that they had a blood alcohol content of .08 or higher, levels at which people are presumed to be intoxicated. Said county prosecutor Robert Horan Jr.: “He is, for all practical and legal purposes, the Supreme Court of Virginia in these cases, even though, on the Supreme Court, it would take four of him” to issue a majority opinion invalidating a statute.
Critics say O’Flaherty is endangering public safety by returning drunk drivers — some with alcohol levels of twice the legal limit — to the roads. Some experts are sympathetic, saying the judge might be making a valid argument and protecting the constitutional rights of all motorists. Prosecutors say Virginia’s law creates a “rebuttable presumption,” meaning the defendant has the opportunity to prove it wrong. O’Flaherty said that wrongly shifts the burden of proof from the prosecution to the defense. “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.”