My Kind of Judge

Today's Washington Post has an interesting article about Virginia trial court judge Ian M. O'Flaherty. Judge O'Flaherty is making a lot of waves in Virginia (and elsewhere) for refusing to go along with the state's presumption that a driver whose blood alcohol content is greater than 0.08 percent is "under the influence." By O'Flaherty's logic, that presumption, which is rebuttable, relieves the state of its burden to prove all elements of the offense of DUI. That violates a defendant's right to be convicted only if the state proves guilt beyond a reasonable doubt. The fact that the BAC results essentially force a defendant to testify against himself doesn't help, either. Or, as Judge O'Flaherty puts it:

'The Fifth Amendment,' said O'Flaherty, 59, 'is an absolute protection against requiring the defendant to say or do anything in the course of a trial. . . . The Fifth Amendment means the defendant can sit there, not say or do anything, and at the end of the case say, 'Can I go home now?''

I'm not quite sure he's right, but I admire his guts for standing up and making an unpopular decision that he thinks is correct. Not all judges have that kind of backbone:

No other judge in Fairfax -- or elsewhere in Virginia, as far as can be determined -- has joined O'Flaherty. But the judge said some other jurists have told him they agree with him. 'I had one judge tell me, 'I'd rule that way, but I don't have the guts to,' ' O'Flaherty said. 'I told him, 'You should be driving a truck.' '

Amen, Judge. You know, Dubya's looking for a new Supreme Court nominee - you want a new job?