How Virginia's "Habitual Drunkard" Law Criminalizes Poverty

By Maggie Ethridge 04/11/19

The Legal Aid Justice Center is taking the law to federal court, questioning its constitutionality.

homeless man who has been targeted by habitual drunkard law

Virginia law allows the state to declare that a person is legally a "habitual drunkard," and one infraction is all it takes to earn the title.

While it’s unknown exactly how many Virginians carry the legal title of habitual drunkard—according to the Daily Press it could be in the thousands—it is used as a punishment for the vague crime of being someone who has “shown himself to be a habitual drunkard.”

According to the statute, simply being in close proximity to alcohol or smelling like alcohol is grounds for arrest. A conviction under the statute can come with a year in jail and possible $2,500 fine.

The label can also be applied to someone for their first DUI conviction, although in Virginia it is more likely to be used after a second offense. The statute arose from the 1800s and exists only in Virginia and Utah, according to the Legal Aid Justice Center in Virginia. The Justice Center is taking the law to federal court, questioning its constitutionality.

The city of Roanoke has slapped 162 people with the label of "habitual drunkard." This far exceeds other cities and counties in Virginia, many of which do not apply the statute at all.

The Legal Aid Justice Center believes that the statute effectively criminalizes poverty. In 2016 it filed a class action lawsuit in Roanoke federal court. The lawsuit claimants are five homeless men who had been given the label of drunkard, who accuse the state of criminalizing addiction and homelessness. A decision is pending in the 4th U.S. Circuit Court of Appeals.

Mary Frances Charlton, a former Legal Aid attorney, told the Daily Press, "It treats fundamentally what is a public health problem as a criminal justice problem. What these folks need is access to affordable housing and medical care—not incarceration."

Attorney Andy Rosenberg handles Virginia Beach’s prosecutions relating to the statute, and told the Daily Press that only 3% of the arrests relating to the law are of homeless people.

Between 2007 and 2018, over 1,700 people were declared a habitual drunkard in Virginia. Two-thirds of those people were arrested in Virginia Beach. Enforcement of the law was originally ramped up in 2006 as the police sought a way to reduce DUIs. They began using the statute in cases of two or more DUIs.

That year, 10% of Virginia’s DUI arrests were made in Virginia Beach, despite the fact that the city only accounted for 6% of the population at the time, according to a story published in The Virginian-Pilot.

Regardless of the intentions, the law failed. In 2009, DUI arrests were at a record high of 2,733, compared to 1,959 in 2007.

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Maggie May Ethridge is the author of Atmospheric Disturbances: Scenes From a Marriage (Shebooks, 2014) and the recently completed novel, Agitate My Heart. She is a freelance writer published in Rolling Stone, VOX, Washington Post, The Guardian and many others. Find her at her blog Flux Capacitor or on LinkedIn or Twitter.