By John Allgood

While Virginia’s drunk-driving law is being called unconstitutional in Fairfax County courtrooms, a local lawyer says that Rockbridge County judges have firmly upheld the law’s constitutionality.

Local District Court Judge Gordon F. Saunders and Circuit Court Judge Michael S. Irvine have both rejected the arguments here, said David Natkin, the local defense attorney who successfully argued that Lexington’s “drunk in public” ordinance was unconstitutional.

In Fairfax County, a Washington D.C. suburban area, contrary rulings by District Judge Ian O’Flaherty and Circuit Judge Robert Wooldridge have garnered widespread attention, making headlines in the Washington Post and the Richmond Times-Dispatch.

Downplaying the media buzz, Natkin said that O’Flaherty and Wooldridge are the only two, of more than 100 Virginia judges, who have ruled the state drunk-driving statute unconstitutional.

To have a chance at winning, local defense attorneys are going to have to try this in the state appellate court, Natkin said. He said he would be willing to go that route, but no client has agreed to pay the extra legal fees. It would cost $5,000.

“There is a certain logical consistency in O’Flaherty’s position, but I’m not that optimistic about it,” Natkin said.

O’Flaherty dismissed two drunken-driving cases last summer and several more in October, while Wooldridge dismissed two cases on Oct. 27.

In these cases, defense attorneys successfully argued Virginia’s drunken-driving law is unconstitutional because it presumes that a driver with a blood-alcohol level of 0.08 or higher is intoxicated, unless the driver can prove otherwise.

This infringes on the guarantees to a presumption of innocence rooted in the Fifth Amendment of the Bill of Rights, defense attorneys said. They base this argument on the ruling in a 1985 U.S. Supreme Court case from Georgia, Francis v. Franklin, which deals with the constitutional issue of creating factual legal presumptions in favor of the prosecution.

In October, O’Flaherty told the Washington Post that Virginia’s law unfairly shifts the burden of proof to a defendant.

“The Fifth Amendment 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?’,” O’Flaherty said.

Wooldridge said he will issue a written ruling on the issue later. This legal debate will have political implications, Natkin said.

Organizations like Mothers Against Drunk Driving (MADD) will likely speak out against Judge O’Flaherty’s rulings. It will be interesting to see if O'Flaherty gets reelected, Natkin said.
 

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