August 12, 2005
Virginia's drunk driving law has been called into question as a judge ruled the law unconstitutional. The Virginia statute on driving under the influence of alcohol states if a person is arrested for DUI, taken to the station and given a breathalizer test, and the machine shows a .08 or higher, that person is presumed to be driving intoxicated.
That presumption is what a Fairfax County District judge has ruled against.
"The Constitution says that people are innocent until proven guilty of a crime, and with this particular statute what it does is put the burden on the defendant, rather than the burden on the Commonwealth where it should be," says Attorney Andre Hakes.
The recent ruling points out that sometimes there is a fair amount of time that passes between when a person is stopped and when they actually blow into a breathalizer machine.
That period of time could have a big impact on your blood alcohol level, but the current DUI law makes no allowance for that.
"I think that the legislature has gotten so draconian and heavy handed with the DUI laws that they've violated the Constitution in the way that the particular Driving Under the Influence statue is written," explained Hakes.
The district court judge's ruling is not binding, but if similar rulings are made by higher courts the current law might be changed.
"As one can expect, defense attorneys are always looking for a new angle, and I'm sure every defense attorney around is going to be looking at this very hard with an eye to trying to make that assertion when they have the right case in front of the judges of the Commonwealth of Virginia," said Commonwealth's Attorney James L. Camblos, III.
Camblos however warns until the law is changed, his office will continue to vigorously enforce the current drunken driving laws.
"Drunken driving is a scorch on our society, and we absolutely want to get the drunk drivers off the road," said Camblos.
The district judge responsible for the ruling is the only judge in Virginia to rule the state's DUI law unconstitutional.