The June 10 edition of the Rappahannock News contained a story that described how Heather Ann Dibble of Warrenton was convicted of driving under the influence (DUI) after a breathalyzer test showed her blood alcohol content was in excess of .08 percent (the per se limit that defines intoxication).
The astonishing part lies not in the actions of the Virginia state trooper, Brandon Johnson, who arrested her. Nor does it lie in the efforts of our commonwealth’s attorney, Art Goff, who prosecuted her. These two individuals and their offices should receive a standing ovation for removing a deadly menace from our roadways. Instead, the astonishing part appears to be the reporting of Judge J. Gregory Ashwell’s courtroom comments. According to the paper, Ashwell seems to have all but coached Ms. Dibble on how to beat the system next time by refusing a breath test and seems to lament the .08 percent law which makes it “less sporting” to prosecute drunk drivers. Could this interpretation be true?
Let’s first examine Judge Ashwell’s alleged advice on how Dibble might beat the system next time by refusing a breath test. Judge Ashwell is a sworn officer of the court whose job is to ensure that due process is observed and a fair trial is held. It is inconceivable that he would offer “Tips to Criminals” on how to outsmart law enforcement and endanger innocent citizens. It is much more likely that Judge Ashwell was describing for Ms. Dibble the factors that led to her conviction. After all, her attorney had argued that she did not exhibit outward signs of impairment and therefore should not be considered intoxicated.
With Virginia’s per se law, conviction does not require evidence such as staggering, slurring, etc. If a driver’s blood alcohol content (BAC) is at or above .08 percent, that person is deemed intoxicated. As the judge said, Dibble did not have to be “commode-hugging drunk”.
But what if Dibble had refused to take the test? According to testimony, Trooper Johnson established reasonable suspicion to stop Dibble by observing two factors associated with impaired driving, namely intra-lane weaving combined with failure to dim lights. Trooper Johnson then determined probable cause for arrest by adding three more factors associated with impaired driving, namely red bleary eyes, an odor of alcohol and a failed roadside alca-sensor test. Trooper Johnson finally administered a breathalyzer test that showed Dibble’s BAC to be greater than .08 percent. If she refused the roadside alca-sensor, Trooper Johnson still had four other combined factors to make the arrest. If she refused the breathalyzer, the refusal itself is a crime that carries about the same penalties as DUI. Refusal or not, she was going to face a difficult time in court.
Finally, let’s examine Judge Ashwell’s alleged statement that there is “less sport” in prosecuting DUI today than when he was a commonwealth’s attorney. With the benefit of hindsight, observers might agree that a better phrase would have been “less speculation” but it is unlikely that a former prosecutor like Ashwell would even remotely consider it a sport. Drunk drivers kill more than 10,000 people in the United States each year and seriously injure 100,000 more. Property damage and medical costs from drunk driving is estimated in the tens of billions of dollars. Prosecuting these criminals is serious business that removes a real danger from our roads and protects the rest of us taxpaying, law-abiding citizens. If anyone reading this letter doubts the seriousness of the crime, they should complete a VASAP course, attend a victim impact panel or ride along with our police and rescue squads. It makes a difference to see firsthand how a drunk driver kills an innocent child, or wife, or husband, or brother, or sister, or mom, or dad, or any human being.
So, as it turns out, the astonishing part of this story is not about a judge’s courtroom dialog. Instead, the astonishing part of the story is about the crime itself. Let there be no mistake, the defendant wantonly and selfishly decided to take all of our lives into her drunken hands that day, making a deliberate choice to drink and an equally deliberate choice to drive. Now, that’s astonishing.
Jeffrey R. Sabol