General Assembly loves bills such as lowering the blood alcohol content, because it’s a great way to say you’re “tough on crime” while doing practically nothing.
It now seems that such efforts are unconstitutional, for the precise reason that BAC affects different people in different ways:
A Fairfax County judge has ruled that key components of Virginia’s drunken-driving laws are unconstitutional, citing an obscure, decades-old U.S. Supreme Court decision that could prompt similar challenges nationwide.
Virginia’s law is unconstitutional because it presumes that an individual with a blood-alcohol content of 0.08 or higher is intoxicated, denying a defendant’s right to a presumption of innocence, Judge Ian O’Flaherty ruled in dismissing charges against at least two alleged drunken drivers last month.
As a district judge, O’Flaherty’s rulings do not establish any formal precedent, but word of the constitutional argument is spreading quickly among the defense bar. Every state has similar presumptions about intoxication at a 0.08 blood-alcohol level, so defense lawyers across the nation are likely to make similar arguments.
And rightly so. Of course, since breathalyzer tests are on the downward trend, field tests (touch your nose and walk a straight line) that do emphasize judgement and reflexes take precedence — and have been the mainstay for years.
Good news for science over generalities, interesting news for legal types, and ho-hum for people convicted of DUI/DWI.