As regular readers know, I've railed in past posts about the "DUI Exception to the Constitution" -- the willingness of legislatures and
judges to ignore the Bill of Rights in drunk driving cases.  Examples of this are the presumptions of guilt that apply in all 50 states, as
I pointed out in a post entitled "Whatever Happened to the Presumption of Innocence?".

In yesterday's news is a story about a judge who has apparently had enough and has decided to start following the Constitution in DUI cases: http://www.nbc4.com/news/4834976/detail.html?rss=dc&psp=news

Va. Judge Disputes Constitutionality Of DUI Law District Court Judge Dismissing DUI Cases

     FAIRFAX, Va. -- A Fairfax County judge is dismissing cases against drivers charged with driving under the influence of alcohol.

District Court Judge Ian O'Flaherty said the law prosecutors use to convict drunken drivers is unconstitutional.

     A Virginia state trooper sent News4 an e-mail saying police are upset about the dismissals. Fairfax County Commonwealth's Attorney
Robert Horan confirmed that the judge is ruling against prosecutors, making it harder to get drunken drivers off the road.

     The judge is challenging one of the powers police and prosecutors rely on for arrests and convictions: the results of breath tests given to suspected drunken drivers. Virginia law says that anyone with a blood alcohol content level of 0.08 percent or more is presumed to be driving under the influence of alcohol. It is then up to the driver to rebut the presumption or prove he or she wasn't drunk.

     O'Flaherty began dismissing DUI charges two weeks ago, ruling that the law is unconstitutional because the burden of proof in all
cases rests with the prosecutor and this law puts the burden on the defense.

It is interesting that the prosecutor's main objection to the rulings was that it was "making it harder to get drunk drivers off the road"
-- not that the judge was legally wrong.

To explain a bit further the basis for the judge's ruling, the following is excerpted from my earlier post "Whatever Happened to the
Presumption of Innocence?":

     In most countries of the world, an accusation by the State forces the accused to prove himself innocent. In America, however, the presumption of innocence has always been a fundamental part of our rights as a free people. This basic protection against the power
of the government has been recognized as flowing from the 5th, 6th and 14th Amendments to our Constitution. As the United States Supreme Court has said, "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." Coffin v. U.S., 156 U.S. 432 (1895)....

     Let's assume you have been arrested for drunk driving, and a Breathalyzer gave a reading of .09% blood-alcohol concentration
(BAC). You will be charged with two crimes: (1) driving under the influence of alcohol (DUI), and (2) driving with over .08% BAC. Let's
look at the .08% charge first.....

     [Discussion of legal presumptions that the machine is accurate and that the officer administered the test correctly.]

     ...So much for the .08% charge.  At least the defendant is presumed innocent of the DUI charge, right? Wrong. The laws of most
states create a presumption of guilt: if the Breathalyzer reads .08% BAC or higher, the jury will be instructed that the defendant is
legally presumed to be under the influence of alcohol. That's right: the defendant is presumed guilty. This is called a "rebuttable
presumption" -- that is, the defendant can try to rebut this presumption with other evidence (what other evidence?). Put another way, he is presumed guilty and the burden is on him to prove his innocence. Just like in third world countries.

     Ok, but the law says it's illegal to have .08% BAC when driving -- not when tested an hour later at the police station. If, for example, a person has a drink or two before driving, the alcohol will not be absorbed into the system for an hour or so: it will not be in his system while driving, but will be reaching peak BAC levels when tested an hour later at the station. So how does the prosecution prove what the BAC was at the time of driving?

     Easy: the law again facilitates conviction by presuming that the BAC was the same, so long as the test was taken within three hours of
driving....Well, now, that's really amazing. The Legislature simply passed a law against scientific truth. We can absolutely say, with
scientific certainty, that the BAC will NOT be the same three hours after the test.....

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

http://www.duiblog.com/2005/08/24#a233

The Disappearing Evidence in DUI Cases

As we all know from watching TV, the police are always very careful to preserve the evidence in criminal investigations. Except in DUI
investigations....

What is the single most important piece of evidence in most drunk driving cases? The Breathalyzer test, of course: it's usually the only physical evidence -- and the only evidence of any kind of driving with over .08% blood alcohol. (It's pretty important for the "driving under the influence" charge, too: the law presumes the defendant is under the influence if the test result is .08% or higher.) Evidence just doesn't get more important than that.

So, naturally, the police are careful to preserve the breath sample, right? There may later be some question of whether the machine was
working correctly; it would be a simple matter to save the sample so it could be tested again on another machine. And, hard to believe,
but the defense may not want to just take the officer's word that the results were from the defendant's test.

The fact is, the breath sample is routinely destroyed moments after it is tested.

But how can this be? That's a question that was asked a few years ago by a defendant in California appealing his DUI conviction. The Court of Appeals of that state agreed and reversed the conviction:

     Due process simply demands that where evidence is collected by the state, as it is with the Intoxilyzer, or any other breath testing
device, law enforcement agencies must establish and follow rigorous and sytematic procedures to preserve the captured evidence or its
equivalent for the use of the defendant. People v. Trombetta, 142 CalApp.3d 138 (1983).

How hard is it to save the defendant's breath sample for later retesting? The Court noted that a "field crimper-indium encapsulation
kit" was readily available, cheap and approved by the California Department of Health Services.

So why isn't the evidence saved in DUI cases today? The Trombetta case was appealed by the state to the United States Supreme
Court....where it was reversed:

     Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be
expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both
possess an exculpatory value that was apparent before the evidence was destroyed, and also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable means. Neither of these conditions is met on the facts of this case.
California v. Trombetta, 467 U.S. 479 (1984).  [emphasis added]

What? These two conditions are not obvious in a DUI case? Let's take another look at the Supreme Court's test:

     1. The possible value of the defendant's breath sample in helping prove innocence was not apparent before it was destroyed.....What? The machine never makes mistakes? It was not apparent to the police that a re-analysis of the all-important breath sample might be exculpatory?

     2. The defendant was able to "obtain comparable evidence by other means".....How? He has no legal access to another breath test.
At best, he might be able to get a blood test at a hospital, if the police let him -- but it would probably be so much later that it would not be relevant or even admissible in court.

Certainly, the New Hampshire Supreme Court later rejected the U.S. Supreme Court's reasoning, and relied upon its own state constitution in requiring breath samples to be saved:

     A suspect would face numerous practical difficulties in obtaining a second sample on his or her own. While in police custody, the suspect would have to locate an available, licensed technician capable of promptly performing a second test, no matter what time of
day or night. Even if a defendant successfully obtained an independent second test, the results would not have the same evidentiary force as would a second test performed on the same machine at approximately the same time. Opinion of the Justices, 557 A.2d 1355 (1989).

The Trombetta decison was, as intended, a huge green flag to police agencies across the country: Go ahead and destroy the main evidence -- but only in DUI cases. And law enforcement agencies have happily complied.

Another example of "the DUI exception to the Constitution".