How come criminalizing driving with a blood alcohol level of 0.08%—as measured by a machine that estimates blood alcohol by measuring alcohol in a person’s breath, which it does by measuring chemical reactions in its sensor that are caused by alcohol-like compounds—is considered the law, but the constitutional presumption of innocence is considered a technicality?
Proving that a person is impaired by alcohol is a lot more work than simply proving their level of blood alcohol, so the weanies at MADD have been pressuring legislatures to criminalize driving with a 0.08% blood alcohol level, thus relieving the state of the burden of proof.
It seems a court has recently overthrown this idea in Virginia, saying that the 0.08% per se impairment law is an unconstitutional attempt to escape this burden. Lawrence Taylor compares it to making it a crime to leave your fingerprints at the scene of a burglary, relieving the prosecution of proving that the defendent actually committed burglary. That is, under current law, a jury might well decide that the prints prove the burglary, but the presence of prints themselves is not a crime.
I think this is the right idea, but it has no chance of surviving. Otherwise the reasoning behind this decision might catch on, and pretty soon prosecutors would have to start proving that drug dealers sell drugs, instead of just proving they possessed enough drugs that they must have intended to sell drugs. Soon federal prosecutors might even have to prove actual crimes instead of just proving suspicious cash transactions or lying by suspects. It’s madness I tell you, madness!
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