After the Fourth Circuit struck down Virginia's 'habitual drunkard' law, what can Commonwealth's Attorneys still do under the interdiction statute?

Plain-English summary

Richmond Interim Commonwealth's Attorney Colette McEachin asked the AG how Commonwealth's Attorneys should adjust their work after the Fourth Circuit's July 2019 en banc decision in Manning v. Caldwell, 930 F.3d 264 (4th Cir. 2019). Manning held Virginia's "habitual drunkard" interdiction prong (in § 4.1-333) unconstitutional under the federal Constitution, on the ground that the statutory phrase is impermissibly vague and that the regime criminalizes the status of being a chronic alcoholic.

The interdiction statute, § 4.1-333, has two grounds for entry of an interdiction order: (a) the person "has been convicted of driving any automobile, truck, motorcycle, engine or train while intoxicated"; or (b) the person "has shown himself to be an habitual drunkard." Manning struck down the second prong. The first prong (DUI-based interdiction) remains valid. Once interdicted, the person is exposed to several Class 1 misdemeanor enhancements: § 4.1-304 (selling alcohol to an interdicted person); § 4.1-305 (the interdicted person consuming, purchasing, or possessing alcohol); § 4.1-322 (the interdicted person possessing alcohol or being publicly intoxicated, an enhancement up from the Class 4 misdemeanor of public intoxication under § 18.2-388).

AG Mark Herring's instruction to Commonwealth's Attorneys:

1. No new habitual-drunkard interdictions. Motions for new interdictions premised on DUI must clearly state the DUI ground and avoid the "habitual drunkard" label.
2. Existing habitual-drunkard interdictions: seek cancellation or, where possible, amendment. Section 4.1-333(B) gives courts broad authority to alter, amend, or cancel interdiction orders.
3. Facially silent existing orders that don't specify the basis: no penalties or enhancements premised on them until the order is clarified to confirm a DUI basis.
4. No criminal charges or enhanced penalties premised on a person being interdicted as an "habitual drunkard." That includes mere possession, attempted purchase, or other conduct that's only criminal because of the interdiction. Also no enhancing public intoxication from a Class 4 misdemeanor (§ 18.2-388) up to a Class 1 misdemeanor (§ 4.1-322) on a habitual-drunkard basis.
5. Generally applicable criminal laws still apply. Interdicted persons are not exempt from non-status-based offenses. But Commonwealth's Attorneys should premise prosecutions on the underlying conduct, not the interdiction status.

The opinion cited Commonwealth v. Kilgore (Va. Ct. App. 1993) for the principle that the Commonwealth's Attorney "should guard against any violation of the accused's rights."

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Section 4.1-333(A) provides that a Virginia circuit court may enter an order of interdiction prohibiting alcohol sales to a person who either (i) has been convicted of DUI involving an automobile, truck, motorcycle, engine, or train, or (ii) "has shown himself to be an habitual drunkard." Subsection B lets the court alter, amend, or cancel the order. The interdiction must be filed with the Board of Directors of the Virginia ABC Authority.

Three related statutes set Class 1 misdemeanor penalties tied to interdiction: § 4.1-304 (selling alcohol to an interdicted person); § 4.1-305 (interdicted person consuming, purchasing, or possessing alcohol); § 4.1-322 (interdicted person possessing alcohol or being drunk in public, with § 4.1-322 as a Class 1 enhancement of the § 18.2-388 Class 4 public intoxication offense).

Section 15.2-1627(B) puts the Commonwealth's Attorney "part of the department of law enforcement of the county or city," with duty to prosecute felonies and discretion over Class 1, 2, and 3 misdemeanors. Constitutional officers take an oath under § 49-1.

The Fourth Circuit's July 2019 en banc decision in Manning v. Caldwell, 930 F.3d 264 (4th Cir. 2019), held the "habitual drunkard" prong unconstitutional. The decision turned on vagueness and on status-based criminalization concerns. (The case name's "F.3d" reporter indicates a federal court of appeals, not the U.S. Supreme Court.)

Common questions

Q: Did Manning kill the whole interdiction statute?
A: No. The DUI prong survives. Manning struck only the "shown himself to be an habitual drunkard" basis. Interdiction orders that issue solely for DUI convictions remain valid, and the related criminal penalties for selling to, or being, an interdicted person tied to a DUI-based interdiction remain enforceable.

Q: A facially silent existing interdiction order doesn't say which prong it's based on. Can we charge someone for violating it?
A: Per the opinion, no, not until the order is clarified. If the Commonwealth's Attorney believes the order is actually based on DUI (and not habitual drunkard), they should move to amend the order to make that explicit, then proceed.

Q: What about pending § 4.1-305 prosecutions of an interdicted person for possessing alcohol?
A: If the interdiction was based on the habitual-drunkard ground, the opinion says do not pursue. If the interdiction is based on DUI conviction (and the order is clear about that), the prosecution can continue.

Q: Does this affect § 4.1-334 interdictions?
A: The opinion's footnote 2 explicitly limits the analysis to § 4.1-333: "This opinion relates only to § 4.1-333 and not to any other interdiction statute." Different analyses apply to § 4.1-334 (drug-related interdiction) and related provisions.

Q: Can a habitual drunkard be prosecuted under generally applicable laws?
A: Yes. Public intoxication, trespass, disorderly conduct, etc., still apply. The opinion warns Commonwealth's Attorneys to premise the case on the specific facts of the alleged violation rather than the defendant's interdiction status.

Q: What about the Class 4 misdemeanor of public intoxication itself (§ 18.2-388)?
A: That remains valid. It's the enhancement to a Class 1 misdemeanor under § 4.1-322 (which depends on the person being interdicted) that the opinion says cannot be pursued where the interdiction was on the habitual-drunkard basis.

Q: How is an existing interdiction order canceled?
A: § 4.1-333(B) allows the court entering the order to alter, amend, or cancel it. A Commonwealth's Attorney would move the court to cancel a habitual-drunkard-based order or amend it to reflect a DUI basis (if the underlying facts support DUI).

Q: What about state courts? Are they bound by Fourth Circuit decisions?
A: Fourth Circuit decisions on federal constitutional questions are binding on federal district courts in the Fourth Circuit and persuasive on state courts. After Manning, state courts may find the same federal constitutional defects. The AG's instruction to Commonwealth's Attorneys is to act in conformity with Manning.

Citations

The opinion is built on § 4.1-333, § 4.1-304, § 4.1-305, § 4.1-322, § 15.2-1627(B), § 18.2-388, § 49-1, Va. Const. art. VII, § 4, and the Fourth Circuit's Manning v. Caldwell, 930 F.3d 264 (4th Cir. 2019). It also cites Commonwealth v. Kilgore, 15 Va. App. 684 (1993), for the Commonwealth's Attorney's duty to guard against rights violations.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/opinions/2019/19-048-McEachin-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

Cynthia E. Hudson
Chief Deputy Attorney General

September 13, 2019

The Honorable Colette Wallace McEachin
Interim Commonwealth's Attorney for the City of Richmond
400 N. 9th Street
Richmond, Virginia 23219

Dear Ms. McEachin:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented
You inquire regarding the application of Manning v. Caldwell,[1] a recent en banc Fourth Circuit decision holding unconstitutional a provision of the Code of Virginia permitting interdiction of a person who has "shown himself to be an habitual drunkard."[2] You ask how, as constitutional officers who swear an oath to support the Constitution of the United States,[3] Commonwealth's Attorneys should revise their practices regarding interdictions in light of the Fourth Circuit's decision.

Applicable Law
Section 4.1-333 of the Code of Virginia governs the process for interdicting a person as "an habitual drunkard." That section provides:

A. 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 [of Directors of the Virginia Alcoholic Beverage Control Authority].

B. The court entering any order of interdiction may alter, amend or cancel such order as it deems proper. A copy of any alteration, amendment or cancellation shall be filed with the Board.[4]

Section 15.2-1627(B) of the Code of Virginia describes the duties of Commonwealth's Attorneys. This section states, in relevant part:

The attorney for the Commonwealth and assistant attorney for the Commonwealth shall be a part of the department of law enforcement of the county or city in which he is elected or appointed, and shall have the duties and powers imposed upon him by general law, including the duty of prosecuting all warrants, indictments or informations charging a felony, and he may in his discretion, prosecute Class 1, 2 and 3 misdemeanors, or any other violation, the conviction of which carries a penalty of confinement in jail, or a fine of $500 or more, or both such confinement and fine.[5]

Various Code provisions set forth criminal penalties and enhancements that can arise following a person's interdiction. Section 4.1-304 prohibits, in relevant part, "sell[ing] any alcoholic beverages to any individual when at the time of such sale he knows or has reason to believe that the individual to whom the sale is made is ... interdicted."[6] Section 4.1-305 prohibits a "person to whom an alcoholic beverage may not lawfully be sold under § 4.1-304" from "consum[ing], purchas[ing] or possess[ing], or attempt[ing] to consume, purchase or possess, any alcoholic beverage."[7] Section 4.1-322 prohibits, in relevant part, any "person who has been interdicted pursuant to § 4.1-333 or § 4.1-334" from "possess[ing] any alcoholic beverages ... [or being] drunk in public in violation of § 18.2-388."[8] Any person found guilty of such a violation of §§ 4.1-304, 4.1-305, or 4.1-322 is "guilty of a Class 1 misdemeanor."[9]

Discussion
In light of the Fourth Circuit's decision in Manning v. Caldwell, which held the "habitual drunkard" scheme unconstitutional, Commonwealth's Attorneys should not pursue new interdictions premised on a person having "shown himself [or herself] to be an habitual drunkard."[10] Any motions for new interdictions premised on a person having been an intoxicated driver should clearly state that the person has been convicted of driving an automobile, truck, motorcycle, engine or train while intoxicated and should not label the respondent an "habitual drunkard."

As to existing interdiction orders expressly premised on a person having "shown himself [or herself] to be an habitual drunkard,"[11] Commonwealth's Attorneys should seek cancelation or, where appropriate, amendment.[12] Commonwealth's Attorneys also may encounter existing interdiction orders that do not specify whether the interdiction is premised on the person having "shown himself [or herself] to be an habitual drunkard" or on the person "ha[ving] been convicted of driving any automobile, truck, motorcycle, engine or train while intoxicated." Commonwealth's Attorneys should not pursue any penalty or enhancement premised on such interdiction orders. If the Commonwealth's Attorney believes a facially silent interdiction order[13] did, in fact, result from the person having been convicted of driving a vehicle while intoxicated (and not on the person being "an habitual drunkard"), the Commonwealth's Attorney should seek an amendment of the order to specify the proper basis for the interdiction. The Commonwealth's Attorney should not pursue any penalty or enhancement premised on the facially silent interdiction order unless and until such interdiction order is clarified to reflect that the interdiction is premised on the person having been convicted of driving a vehicle while intoxicated and not premised on the person being "an habitual drunkard."

Further, Commonwealth's Attorneys should not pursue criminal charges or enhanced penalties that depend on a person having been interdicted for being "an habitual drunkard." These include charges or enhanced penalties for (i) mere possession of, or attempt to possess, an alcoholic beverage, (ii) purchasing or attempting to purchase an alcoholic beverage, or (iii) any other activity that, absent interdiction for being a habitual drunkard, is not prohibited. Commonwealth's Attorneys also should not seek criminal enhancements arising from interdictions based on an habitual drunkard designation. For example, Commonwealth's Attorneys should not seek such enhancement of a public intoxication charge from a Class 4 misdemeanor, as set forth in § 18.2-388, to a Class 1 misdemeanor, as set forth in § 4.1-322.[14]

Interdicted persons are not exempt, however, from generally applicable criminal laws that do not turn on a person's interdicted status. For that reason, Commonwealth's Attorneys may continue to seek penalties against interdicted persons arising from generally applicable criminal laws. Commonwealth's Attorneys who seek convictions or criminal enhancements based on generally applicable criminal laws against a person who has been interdicted based on an habitual drunkard designation are advised to premise the case on the specific facts giving rise to the violations of the Code and not on the defendant's status as an interdicted person.

Conclusion
Accordingly, it is my opinion that Commonwealth's Attorneys may no longer seek new interdictions, criminal penalties, or criminal enhancements premised on the person being "an habitual drunkard."

With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General

1. 930 F.3d 264 (4th Cir. July 16, 2019).

2. VA. CODE ANN. § 4.1-333(A) (2016). This opinion relates only to § 4.1-333 and not to any other interdiction statute.

3. VA. CODE ANN. § 49-1 (2013).

4. VA. CODE ANN. § 4.1-333.

5. VA. CODE ANN. § 15.2-1627 (2018); see also generally VA. CONST. art. VII, § 4 (providing that the duties of constitutional officers, including Commonwealth's Attorneys, "shall be prescribed by general law or special act").

6. VA. CODE ANN. § 4.1-304(A) (2016).

7. VA. CODE ANN. § 4.1-305(A) (2016).

8. VA. CODE ANN. § 4.1-322 (2016).

9. VA. CODE ANN. § 4.1-304(A); VA. CODE ANN. § 4.1-305; VA. CODE ANN. § 4.1-322.

10. VA. CODE ANN. § 4.1-333(A).

11. VA. CODE ANN. § 4.1-333(A); see also VA. CODE ANN. § 4.1-333(B) (2016) (granting a court broad authority to "alter, amend or cancel [an interdiction] order as it deems proper").

12. For example, it may be appropriate to seek amendment of an interdiction order alternatively premised on the person both having "shown himself [or herself] to be an habitual drunkard" and "ha[ving] been convicted of driving any automobile, truck, motorcycle, engine or train while intoxicated." VA. CODE ANN. § 4.1-333(A).

13. For purposes of this opinion, a facially silent interdiction order is one that fails to specify the grounds for interdiction, as stated above.

14. Cf. Commonwealth v. Kilgore, 15 Va. App. 684, 693, 426 S.E.2d 837, 842 (1993) ("[T]he Commonwealth's attorney, as the representative of the people, should guard against any violation of the accused's rights").