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Appeals court hears challenge to ‘habitual drunkard’ law

January 30, 2019

RICHMOND, Va. (AP) — A Virginia law that allows police to arrest and jail people designated as “habitual drunkards” for up to a year if they’re caught with alcohol was scrutinized Wednesday by a federal appeals court as legal advocates argued that it unfairly targets homeless alcoholics.

The 4th U.S. Circuit Court of Appeals is being asked to allow a legal challenge to the law to proceed in federal court.

A federal judge and a three-judge panel of the 4th Circuit have dismissed the lawsuit, but the appeals court agreed to hear arguments before the full court of 15 justices.

Jonathan Marcus, an attorney representing people designated by a judge as habitual drunkards, argued that the law criminalizes addiction by targeting people who are compelled to drink because they are alcoholics and are forced to drink in public because they are homeless.

“This is a systemic problem,” Marcus said. “Some of our clients have been arrested and prosecuted 30 times.”

The state Attorney General’s Office, which is defending the law, argued that the state has a legitimate interest in discouraging alcohol and drug abuse. Deputy Solicitor General Matthew McGuire told the justices the law does not target homeless alcoholics, but is aimed at discouraging people from abusing alcohol.

“All that Virginia is regulating here is conduct related to alcohol,” McGuire said.

The lawsuit filed by the Legal Aid Justice Center and a Washington law firm challenges Virginia’s so-called interdiction law, which allows prosecutors to go to civil court to ask a judge to declare someone a habitual drunkard. Once that happens, police can arrest that person for being publicly intoxicated, possessing alcohol, being near open containers of alcohol or even smelling of alcohol. Violators face up to a year in jail and a fine of up to $2,500.

Several of the justices expressed skepticism about the lawsuit’s claim that the law punishes only homeless alcoholics.

Justice J. Harvie Wilkinson III said the law seeks to deal with “deleterious effects of drunkenness.”

“It’s not targeting people. It’s targeting the ill effects of alcohol,” he said.

But several other justices pushed back on the idea that the law applies more broadly, pointing out that someone who does not have the “habitual drunkard” designation but is arrested for public intoxication does not face any jail time, while those with the designation face up to a year.

The lawsuit alleges that the law violates the 8th Amendment prohibition against cruel and unusual punishment.

It is not clear how long it could take for 4th Circuit to issue its ruling.

The court could uphold the decision of its 3-judge panel and the lower court judge to dismiss the lawsuit. Or it could reverse that decision, which would send the case back to the lower court and allow the lawsuit to proceed.

Separately, a bill to repeal the law was scheduled to be heard by a state legislative committee Wednesday afternoon.

Virginia and Utah are the only two states with interdiction laws that make it a crime for people designated as habitual drunkards to possess, consume or purchase alcohol, or even attempt to do so, according to a survey of state laws done by the legal aid center.

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