innocence is in the eye of the prosecutor

Virginia is known for having “maverick” judges, colorful characters who often take unconventional approaches to the law. Judge Ian M. O'Flaherty is one such judge who has suggested that defendants in DWI cases should retain the same presumption of innocence as, say, serial murderers, rapists, and White House Deputy Chiefs of Staff.

Under Virginia law, if you blow .08 or higher on a breath test you are presumed guilty unless you can prove you’re innocent. Judge O’Flaherty believes this is unconstitutional and has astonished prosecutors by suggesting that they provide other things such as “proof.” This has sent them scrambling for their law dictionaries.

The advocacy group, Mothers Against Drunk Driving (MADD), takes a slightly different view as they support random police checkpoints on public highways which operate under the presumption that everyone is guilty until they can prove to a police officer that they are not. (The probable cause justifying these searches rests on the bedrock constitutional principle of “because we can.”)

Pat O’Connor, president of the local chapter of MADD notes that “This is a safety issue,” understanding that in modern America, playing the “safety card” typically trumps all other considerations. If someone could find a way to tie the leaking of Valerie Plame’s name to safety, and better yet, the safety of children, then Scooter and Karl would already be in jail being traded from inmate to inmate for packs of cigarettes and cafeteria privileges.

Of course, everyone wants drunks off the road and back in Congress where they belong, but the issue is a difficult and complex one where a careful balance between public order and individual liberty must be sought. Perhaps O’Flaherty and O’Connor can settle this in the civilized manner of their forbears:

Over a pint of Guinness, a fifth of Jameson’s, and game of darts.

J.