Article from: www.thenewspaper.com/news/07/739.asp

10/30/2005

VA Prosecutors Take Presumption of Guilt Question to Court
Virginia appeals court will soon rule on the rebuttable presumption doctrine that underlines DUI and photo enforcement laws.

A Fairfax County, Virginia Circuit Court will begin hearing a challenge to the rulings of General District Court Judge Ian O'Flaherty who began dismissing driving under the influence (DUI) cases in July, saying that Virginia law unconstitutionally presumed the guilt of defendants. Prosecutors want to take the Circuit Court ruling to an appeals court so that precedents will be set to prevent O'Flaherty's actions.

The question the court must resolve is whether a "rebuttable presumption" unfairly shifts the burden of proof from the prosecution to the defense. O'Flaherty argues that such presumptions -- the key to obtaining easy convictions with DUI and photo enforcement cases -- violate the Fifth Amendment. Prosecutors, he said, must prove every element of the case. He cites the 1985 Supreme Court ruling Francis v. Franklin in support.

For example, if a breath test shows a blood alcohol reading of 0.81, a defendant is automatically considered guilty under the law. O'Flaherty believes the prosecution must also prove -- not assume -- that the driver was actually drunk and impaired at the time he was driving. Some evidence suggests blood alcohol readings can rise over time as alcohol is absorbed into the bloodstream.


Source: Va. Drunken Driving Law Challenged in Fairfax Court (Washington Post, 10/28/2005)

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