Virginia DUI statute held to be constitutional

     A much anticipated  opinion by a northern Virginia judge has upheld the constitutionality of the Virginia DUI statute.  Fairfax County Circuit Court Judge Robert W. Woolridge Jr. issued the first written opinion on the recently contested issue raised by general district court judge Ian O'Flaherty last summer.  Contestants of the DUI statute, however, did score a partial victory when Woolridge also determined that the application of a per se presumption of intoxication because a person's blood alcohol level meets a certain numerical threshold would not be constitutional.

     O'Flaherty began dismissing DUI cases last year after the argument was raised that the presumption of intoxication embedded in the Virginia DUI statute unfairly shifted the burden of proof from the Commonwealth to the defendant.  Such a burden shift violates a defendant's right to be presumed innocent until proven guilty.  Additionally, O'Flaherty felt that the "rebuttal defense" provided to a defendant under the statute violated one's right to remain silent.  Finally, O'Flaherty called into question the reliability of a presumption that arises from scientific testing that may occur anywhere from 30 minutes to 3 hours after the alleged offense is committed.

     While both prosecutors and defense attorneys have claimed victory after Woolridge's ruling, opponents of the current DUI law seem to have chipped away at the DUI exception to the Constitution.  The decision essentially precludes a judge or jury from deciding that a defendant is guilty of driving under the influence merely because his blood alcohol content is .08 or higher.  Woolridge determined that while a presumption would be unconstitutional, an inference of intoxication would not be.  However, if the defendant can produce evidence that he was not intoxicated at the time of the offense, the burden of proof then shifts back to the prosecution, and the defendant could be found not guilty even with a blood alcohol level of .08 or higher. 

     Regardless of this decision, most circuits in the state of Virginia have failed to address this issue fully.  Moreover, just because one circuit court justice takes this opinion does not make it binding on others.  Until the issue reaches the Supreme Court of Virginia for a final opinion, individuals will continue to have to challenge the unconstituional presumption of intoxication found in the DUI statute.