• Brian Latuga

The Virginia Habitual Drunkard Law is Unconstitutional, But You Were Just Interdicted – WHAT?!

Updated: Oct 1, 2019

The media and news outlets are stating that “Virginia’s ‘habitual drunkard’ law is dead.” (literally,, just that… see here) On Friday, August 2, 2019, Virginia Attorney General Mark Herring announced that the Attorney Generals’ Office would not appeal the 4th Circuit Court of Appeal’s decision in Manning v. Caldwell (900 F.3d 264 (2019) (here’s the case opinion). Herring stated in a ‘Tweet’ that “[t]he General Assembly should have taken this strange and regressive law off the books a long time ago, but now that the court has done it for us I don’t’ see any need to continue the fight.”


But apparently the whole law isn’t so “strange and regressive.” Many are still being prosecuted and determined as Interdicted Persons. (See Va. Code 4.1-333).


The City of Virginia Beach has far surpassed any other jurisdiction in creating these ‘habitual drunkards’ (slow clap for VB).


And here it goes again, trying to take the prize for greatest number of interdicted persons established through the “untouched” portion of this despised law. Virginia Beach and other cities continue to churn out civilly interdicted individuals when convicted of a DUI – ignoring that the general premise of this law is highly disfavored. Law breakers? No. They’re attorneys (insert snarky joke here) – Manning v. Caldwell didn’t get rid of the entire statue; it is a nuanced ruling that dismissed with only part of the ridiculous statue- but leaves open valid argument for challenging the existing remainder. The Attorney General issued a recent opinion advising Commonwealth Attorneys, found here.


First, the “Habitual Drunkard” Language is Vague (... a bunch of legal stuff)


The Court of Appeals found the Virginia Interdicted Statute unconstitutional under two independent avenues. First, the Due Process Clause of the Fifth and Fourteenth Amendments has been interpreted to mean that a “statute must give a person of ordinary intelligence adequate notice of what conduct is prohibited and must include sufficient standards to prevent arbitrary and discriminatory enforcement.” That’s a mouthful. It means that a statute can’t be Vague. An extreme example: a criminal statue banning “unreasonable haircuts.” We would question what is considered “unreasonable” about a haircut. Litigation would commence on what a “haircut” is. A statue like this may also promote arbitrary enforcement by police or prosecutors – a group of officers may decide that their definition of an “unreasonable haircut” should result in the arrest of all voluntarily bald men – if you've seen a photo of me, this would be a shame indeed.


The Court of Appeals said that the term ‘habitual drunkard’ provided no fair notice to a person about what conduct is prohibited. No guidelines are provided to law enforcement. What does “habitual” mean? What does “drunkard” mean? Nobody knows. So, the law goes down.


Second, the “Habitual Drunkard” Law Results in Cruel and Unusual Punishment (... more legal stuff)


The Eighth Amendment’s prohibition on Cruel and Unusual Punishment says the government can’t make everything punishable as a crime, and if it does create a crime then the punishment can't be ridiculous (but really, it feels like the government does just that).


In its 1962 decision Robinson v. California, the U.S. Supreme Court struck down a California law that criminalized the “status” of “being addicted to the use of narcotics.” The court said that turning an illness into a criminal offense “inflicts a cruel and unusual punishment.” Virginia’s status of an “habitual drunkard” punishes the status of being an alcoholic. This is different than punishing the act of being Intoxicated in Public (Va. Code 18.2-388), which prohibits a volitional action rather than a “status.”


The plaintiffs here alleged that the “Virginia scheme targets them for special punishment for conduct that is both compelled by their illness and is otherwise lawful for all those of legal drinking age.”


The holding is “narrow.” The statute threatened citizens with arrest and incarceration as a result of an involuntary need to drink. It remains the law that courts are entitled to impose and enforce targeted restrictions as conditions of “supervised release, probation, parole, or release from criminal custody, even on persons who suffer from certain illnesses.”


The portion of the Virginia statute providing for the interdiction of individuals who have been convicted of driving while intoxicated is untouched


The Court stated that the ruling does “not challenge the constitutionality of any restrictions imposed after conviction of a crime,” such as conditions of sobriety imposed for probation.


So, the state has the power to prosecute individuals, even those suffering from illnesses, for breaking laws that apply to the general population as a whole. The court didn’t address interdiction of those convicted of DUI, and it did not specifically say it was valid or constitutional.


Some Irony...


The Court striking down the law had no knowledge of the evidence relied upon by the lower (trial) court in determining any of the plaintiffs as “habitual drunkards.” Two of the plaintiff’s “abstracts of conviction” were considered, but there is nothing telling the Court of Appeals what those convictions were. It seems that one or more of the challenging plaintiffs could have been Interdicted based upon … a DUI! But we may never know. Why is that important? Because the law remaining says that a conviction of DUI is enough to "interdict" a person from alcohol for an indeterminate amount of time.


My Final Words


It is illegal to invoke targeted criminalization of otherwise legal behavior that is an involuntary manifestation of an illness. The only challenged part of the Interdiction statute was the aspect referring to “habitual drunkards” – the court didn’t address interdiction after a criminal conviction of DUI. What difference does it make if the interdiction is for a DUI? Isn’t the subsequent act of purchasing or possessing alcohol potentially revealing of an illness? Additionally, the Commonwealth and Courts already retain the ability to impose severe and encompassing sanctions upon someone that is convicted of a DUI. The court may impose a Good Behavior period that lasts many years. The court may order no alcohol during that entire period. But, an Interdiction will often last many years longer than any good behavior period for a DUI.


Why does the Commonwealth of Virginia continue to impose additional sanctions and restrictions on citizens convicted of a single alcohol-related crime? Drug users aren’t interdicted and the substances they use aren’t even legal. ONE DUI conviction can result in a civil “interdiction” and loss of the ability to purchase alcohol for an indefinite period of time. If a court thought somebody should be restricted from alcohol for four years, it can already do that. There is no necessity to designate a person as “interdicted.” In fact, I argue that it still imposes an Unconstitutionally Cruel and Unusual punishment not otherwise applicable to the general public. Many DUI offenders do have an illness involving alcohol. However, the Commonwealth wants harsher punishment, more jail time, and more convictions. (Possession as an Interdicted Person carries harsh penalties; Va. Code 4.1-322) If there is a law on the books, then the Commonwealth of Virginia will persist in enforcing that law.


This may not make sense to you, because it doesn’t make much sense to society.


Bottom line: The law has not changed regarding Interdiction when you are convicted of a DUI. There has been no constitutional challenge to that part of the law. It is time for the General Assembly to rescind the entire statute instead of costing some citizen their money and freedom in fighting a law that is antiquated, regressive, and unconstitutional.


If you have been or will be interdicted then you may need an attorney to help you. If you're charged with a criminal offense after being interdicted, then you will certainly need an experienced attorney's guidance. Call Brian M. Latuga, Esq. at (757) 687-3657 to start your defense now.

© 2019 Brian Latuga, Esq. - Proudly serving the Hampton Roads area and the Eastern District of Virginia

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