Fairfax County Welcomes Drunk Drivers ...

So you had a few too many at happy hour.....so you swerved into a lane of oncoming traffic.....so you ran a red light and almost t-boned a van full of kids - no worries mate because in Fairfax County, Virginia your DWI case may get dismissed no matter what you blew on the breathalyzer test.

That's right. A 'maverick' general district court judge in my home county has started dismissing cases of DWI because he feels 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. He says that at this point the burden of proof is wrongly shifted from the prosecution to the defense. So you don't get to come into the court innocent until proven guilty - it's presumed you're guilty as soon as you blow more than a .08.

As much as I disagree with completely dismissing these cases - because you can't appeal a case that has lost at his court level - I must say that this judge does have a point. Our 5th Amendment states the following:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Which means that you don't have to say or do anything in the course of a trial - including proving your innocence. The prosecution has to prove beyond a reasonable doubt that you definitely did the crime. And a breathalyzer test is apparently not as accurate as some would like for you to believe. It is said that since the test may not be administered until over an hour after your traffic stop - that your blood alcohol level may have continued to rise - causing a false result. And blood tests are usually not administered on the scene either.

My $.02 - If an officer pulls you over on suspicion of drunken driving and you blow more than a .08 BAC and fail the field sobriety tests, then I think you should definitely get some sort of punishment. If you are going to put other people's lives in danger by getting behind the wheel when you are impaired, then you shouldn't be able to get behind the wheel for a while. Bottom line - call a cab, take a bus, have a sober driver, or do your drinking at home.

Oh and a funny little tidbit - the judge's name - Ian M. O'Flaherty. Imagine that - an irishman!