In September, seven Virginia Beach city jail inmates were set free.
Each one was homeless.
Their crime? Each had been declared a “habitual drunkard” under an old and controversial state law.
The designation meant they could be arrested and jailed anytime they were caught with alcohol or showed signs of drinking it. A conviction could mean up to a year behind bars.
For most of the five men and two women, the city jail had become a revolving door after a civil judge had decided their fate. Once back on the streets, it typically was just a matter of time before they were back in.
But a decision issued in August by the 4th U.S. Circuit Court of Appeals in Richmond put an end to that practice for them — as well as hundreds of others — across the state.
The court had ruled Virginia’s habitual drunkard law was unconstitutionally vague. It had also determined that it was unfairly targeting homeless people.
While the opinion dealt a major blow to the law, it didn’t knock it off the books.
The decision just narrowed how the law can be used, said Virginia Beach Commonwealth’s Attorney Colin Stolle, whose office has enforced the statute far more than any other prosecutor’s office in the state.
“Their ruling only applied to part of the law,” Stolle said.
What’s left, he said, is still a powerful tool for prosecuting those convicted of repeatedly driving drunk.
Law challenged
The appellate court’s decision stemmed from a class-action lawsuit filed in 2016 by the Legal Aid Justice Center of Virginia.
The organization had sued on behalf of several homeless men from Roanoke and Richmond who’d repeatedly been jailed under the statute. The suit contended that the law was unconstitutionally vague in how it defined a “habitual drunkard,” and that it punished homeless people for doing something that’s typically legal: drinking alcohol.
A Roanoke federal judge who was the first to hear the case dismissed it. A three-judge panel from the 4th Circuit agreed with him, but the full panel later struck the law down — or at least part of it.
Before the court’s ruling, there were two ways that someone could be declared a habitual drunkard — or “interdicted” — under the statute: Either by being convicted of drunken driving, or having “shown (themselves) to be a habitual drunkard.”
It’s only the latter part that the Legal Aid Justice Center challenged and that the appellate panel had a problem with, Stolle said, meaning it can still be enforced against those convicted of drunk driving. An opinion that Attorney General Mark Herring issued in September and a federal judge’s final order in the case filed in late October backs up his theory.
That’s primarily how Virginia Beach prosecutors have enforced the law over the last 13 years, when they began using it to curb the city’s high drunk driving rate. The resort town accounts for 10% of the state’s DUI arrests, but just 5% of its population.
Since 2006, the Virginia Beach office’s policy has been to seek the designation for all defendants who’ve racked up two or more DUI convictions.
The process works like this: Once prosecutors decide to pursue an interdiction, they must file a civil court petition, schedule a hearing, and serve the person with notice. A judge is then asked to decide if the person should be interdicted and how long the order should last. It could be indefinite.
The policy has led to more than a thousand of the city’s residents being labeled as habitual drunkards. That’s about two thirds of all the people who have received it statewide.
Once a person gets the designation, they’re prohibited from having alcohol and can be arrested and jailed if caught.
While Virginia Beach prosecutors have mostly targeted repeat drunk drivers with the law, they’ve also occasionally used it against people with multiple alcohol-related convictions who’ve been known to commit other crimes or become disruptive while drunk.
In most cases, those people also happened to be homeless.
But based on the 4th Circuit’s decision, the law can no longer be applied to them. Now if they’re caught drunk in public or with an open container, police can only issue a court summons, Stolle said.
The harshest possible punishment? A fine.
Set free
Stolle’s staff sifted through all of its habitual drunkard cases — about 1,150 of them — after the court ruling to determine which were interdicted for multiple drunk driving offenses and which were for being a habitual drunkard, said Macie Allen, a spokeswoman for the office.
They then reached out to the city jail to find out if any inmates were being held under the statute, Allen said.
A report from the jail in early September determined there were 18.
A copy of the document obtained by The Pilot showed that all but two were men. They ranged in age from 28 to 66.
Prosecutors reviewed each of their cases and determined that seven of them should be set free as a result of the appeals panel’s decision. The rest were not included either because they had been interdicted for multiple DUIs or they faced additional charges, Allen said.
And while Stolle says that his main goal in enforcing the law has been to keep repeat drunk drivers off the road, court files and online records for the 18 in jail at the time of the panel’s decision showed that slightly more than half of them had never been convicted of drunk driving. The records also indicated that two thirds of them were homeless.
Among those released in September was Alfred Forbes Jr., a homeless man who was featured in a Pilot story in March about the lawsuit challenging the practice. He’d been in jail for nearly a year when he was set free two months ago.
Forbes had been found guilty of violating the law 30 times in the past 15 years and had been repeatedly jailed because of it. His most recent arrest came in October 2018, when a police officer reported seeing him with a beer in his hand at the Oceanfront, a charge that Forbes denied.
After he was convicted of being an interdicted person with alcohol and trespassing, he was given the maximum sentence of a year on each charge. He wasn’t scheduled to be released until February 2020, but was set free on Sept. 24 as a result of the court ruling.
Several attempts by The Pilot to reach Forbes after his release were unsuccessful. His attorney and others familiar with his case have said they don’t know where he’s living now.
In the meantime, Virginia Beach prosecutors have continued their practice of seeking interdictions for those convicted of multiple DUIs.
While there has been some confusion among defense attorneys and defendants as to whether the law still applies in those instances, about two dozen interdiction cases have been successfully prosecuted since the 4th Circuit’s ruling, Allen said.
Stolle said his office will continue using the law against repeat drunk drivers in an effort to curb the problem in the city.
“Drinking and driving is a huge issue in Virginia Beach, and that’s why I have devoted as many resources as I can to fighting it,” the chief prosecutor said. “And we’re going to continue fighting.”
Jane Harper, 757-222-5097, jane.harper@pilotonline.com
