16 August 2005

You know, it's kinda fun reading Tom's blog as he tries to defend those pro-prosecution biases in the law which are undefendable.

I started to write a long reply to his "rebuttable presumption" = "permissable inference" post, but I like the conclusion.

However, the question which comes to mind is, if the law actually only states that when the defendant has a .08 BAC a judge may infer impaired driving, what's the problem when he doesn't infer it?

That is, of course, other than the fact that he will anger MADD and probably not get reappointed to his position the next time the General Assembly gets to decide whether to reaffirm him.


Tom McKenna said...

Thanks for the acknowledgment, Ken... it is difficult trying to keep you defense lawyers and the judges on the right track in adhering to all those pro-prosecution biases in the law (otherwise known as the entire criminal code, which after all, allows us prosecutors to put people in jail for many different reasons when we prove they violated those laws).

As I mentioned in my post, there is nothing wrong with a judge deciding that the inference of intoxication has been rebutted by other evidence in the case. It happens all the time.

What this judge did, however, was rule that the presumptive level provision of the Code is unconstitutional, an entirely different matter than just dismissing this or that particular case for insufficient evidence.

Ken Lammers said...

Tom - the entire code isn't flawed. It's just fun to see you defending some of the less than logical things which have been done - like the rebuttable=permissable illogic.

Anyway, however the judge got to his conclusion that there should be acts tending to show impairment rather than mere presence of alcohol, it looks a lot like something which would be subject to a harmless error analysis were I to raise it. After all, it's only permissable to infer which would mean, per Francis, it's not required; in fact, if it were required it would be unconstitutional. So where is the harm in the judge not infering when he's not required to infer?

BTW - Do you have any post-Francis case law from the Fedral Supremes approving burden shifting? Because, as I read Francis it pretty clearly states that "a mandatory rebuttable presumption" is unconstitutional and a mandatory rebuttable permissable inference (which is the argument Va. and federal case law forces upon you) makes no sense.

Anonymous said...

I'm wondering if it is permissible to infer that it may be presumptive to assume that a rebuttable presumption is the same thing as a permissable inference.