Generally speaking, having a cocktail or a beer or two won't land you in trouble. After all, alcohol consumption is legal for those of us over the age of 21. But, there are exceptions to every rule. Drinking or being drunk in public, or driving after you've had too much to drink can lead to criminal penalties, including fines and significant prison time.
And in the State of Virginia just being near booze can mean a year in jail. That's if you've already been labeled a "habitual drunkard", a designation that can bar you from purchasing, consuming, or possessing alcohol. Although the law seems antiquated, recent legal challenges have failed to overturn it.
Shown Himself to Be a Habitual Drunkard
As a section of Virginia's Alcohol Beverage Control Act reads:
When after a hearing upon due notice it appears to the satisfaction of the circuit court of any county or city that any person, residing within such county or city, has been convicted of driving any automobile, truck, motorcycle, engine or train while intoxicated or has shown himself to be an habitual drunkard, the court may enter an order of interdiction prohibiting the sale of alcoholic beverages to such person until further ordered. The court entering any such order shall file a copy of the order with the Board.
According to The Marshall Project, such determinations can be made in a civil hearing, during which a person isn't guaranteed an attorney to help them fight the allegations, and may not even be present. Once that person is legally branded a "habitual drunkard," it is a misdemeanor crime to purchase, consume, possess, or, in some cases, be found near alcohol or smelling like it. And misdemeanors can mean up to a year in jail.
Criminalizing Legal Behavior
Bryan Manning was deemed a habitual drunkard under Virginia's statute in 2010. Since, Manning claims he's been prosecuted over 30 times for possessing or drinking alcohol, including being arrested once in a Walmart that sold alcohol when he hadn't actually purchased any and another time arrested for just smelling like booze. Manning is a lead plaintiff in a class action lawsuit challenging the law as unconstitutional, but the Fourth Circuit Court of Appeals recently upheld the dismissal of the suit, finding a "legitimate interest" on behalf of the state in discouraging alcohol abuse.
Despite contentions from other judges that the statute "criminalizes the otherwise legal behavior of individuals suffering from a serious illness," and "targets a group of vulnerable, sick people for special punishment based on otherwise legal behavior [drinking alcohol] that is an involuntary manifestation of their illness," Judge Harvie Wilkinson determined the law "does not single out homeless alcoholics for different treatment":
"We emphasize what we hope would be obvious: it would be unlawful for the state to simply round up 'undesirable' persons based on their perceived status as addicts or drunkards ... It is inimical to personal liberty to bring criminal charges on the basis of who someone is ... But Virginia has been ... careful to observe that line. It has prohibited individuals deemed at a higher risk of alcohol abuse from possessing or consuming alcohol. This includes not only habitual drunkards, but also people who have been convicted of drunk driving and those under twenty-one."
So, for now, Virginia's habitual drunkard statute remains the law of the land. But advocates in the state are appealing the decision.