FAIRFAX - A judge who has ruled that Virginia's drunken-driving law is unconstitutional is misinterpreting the U.S. Supreme Court case on which his opinion is based, prosecutors argued last week.

A different judge heard arguments on the constitutionality of Virginia's law, which presumes that a driver with a blood-alcohol level of 0.08 or higher is intoxicated, unless the driver can prove otherwise.

Defense attorneys argued that such a presumption is unconstitutional because it infringes on the guarantees to a presumption of innocence. They cite an obscure 1985 U.S. Supreme Court ruling, Francis v. Franklin, as support for their argument.

Defense lawyers presented that argument in July to District Judge Ian M. O'Flaherty, and he agreed, dismissing two drunken cases in the summer and several more this month, including drivers whose blood-alcohol level has been more than twice the legal limit.

O'Flaherty's rulings do not carry precedent, and so far no other judge has followed his lead.

In a hearing Thursday, prosecutor Casey Lingan said that Francis v. Franklin doesn't apply to Virginia's law because the case dealt specifically with jury instructions about legal presumptions, and did not apply to an actual statute.

"Francis v. Franklin didn't really establish anything grandiose or new," Lingan told Circuit Judge Robert W. Wooldridge Jr.

Wooldridge questioned the notion that a decades-old Supreme Court case could have such a profound implication and go essentially unnoticed all that time.

One of the defense attorneys, Todd Sanders, said that DUI laws are facing closer scrutiny now that state legislatures constantly rework the statutes to make them tougher on drunken drivers.

Another defense attorney, Corinne Magee - who was the first to successfully argue the question to O'Flaherty - said that while the Francis case dealt with jury instructions, the constitutional issue of creating factual legal presumptions in favor of the prosecution remains the same.

"These mandatory presumptions significantly lighten the prosecution's burden of proof and in fact shift the burden of proof on an essential element to the defense," Magee wrote in her legal arguments.

Prosecutors have been frustrated with O'Flaherty's rulings because in Virginia, prosecutors cannot appeal when a district court judge dismisses a case on constitutional grounds. After O'Flaherty dismissed two cases in July, he agreed to let prosecutors pull six DUI cases from his docket and obtain direct indictments in Circuit Court to obtain a definitive ruling in appellate courts.

Last week's hearing combined arguments on two drunken-driving cases, which were among the six that prosecutors pulled from O'Flaherty's docket.

Wooldridge said he will issue a written ruling on the issue later.

O'Flaherty has not explained his views in any written ruling, because district court rulings are issued orally. He has declined interview requests from the Associated Press, but he told The Washington Post that Virginia's law unfairly shifts the burden of proof to a defendant.

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