DUI judgment: presumed sober.

• Author: Howley, Kerry
• Position: Driving under intoxication

IN THE STATE of Virginia, as in the rest of the country, drivers who register above .08 percent on a breathalyzer test are presumed to be impaired. Drivers who get hauled before Ian M. O'Flaherty, a general district judge in Fairfax Country, can make a presumption of their own: Their encounter with the Virginia court system will be short and sweet. O'Flaherty believes Virginia's drunk driving laws are unconstitutional, and he has been dismissing cases based on those laws since July.

O'Flaherty and his defenders say the assumption that a driver with a blood-alcohol level of .08 percent or higher is impaired violates the driver's right to a presumption of innocence. Since alcohol affects different individuals differently, O'Flaherty believes it's the state's responsibility to prove a defendant actually was impaired, not the defendant's responsibility to prove she can handle her alcohol. While prosecutors point out that the law affords defendants a right to rebut the charges, O'Flaherty says that won't cut it in his courtroom.

The local media have called O'Flaherty, who once dismissed five cases in a single week, a "public menace" with...