'HABITUAL DRUNKARD' IS NOT, TECHNICALLY, AN ALCOHOLIC

Roanoke defendant released from jail Judge rules 'habitual drunkard' is
not, technically, an alcoholic

The defense argued that because alcoholism makes him disabled, he should
have been given representation before he was interdicted.

A judge rejected the argument Friday that one of Roanoke's "habitual
drunkards" was illegally denied a lawyer before he was barred from
purchasing, possessing or consuming alcohol.

But at the same time, General District Judge Julian Raney also rejected a
prosecutor's request that Frank Graham be sentenced to 20 months in jail
for staggering around downtown Roanoke in a drunken stupor.

Graham, who was "interdicted" last December as part of the city's effort to
disband a group of chronic alcoholics who loiter downtown, challenged the
way he was treated under a law that makes it illegal for him to have
anything to do with alcohol.

Assistant Public Defender Steve Milani argued that because Graham's
alcoholism makes him disabled, he should have been appointed an attorney or
legal guardian before he was interdicted.

The substance of that argument was not addressed by Raney, who cited
procedural grounds as the basis for denying Milani's motion to dismiss the
charge.

Raney said he did not have the authority to overrule a Circuit Court judge
who had already found that Graham was not suffering from the disability of
alcoholism. "On the face of the record, there was a determination by the
judge that there was no need under the law" for an attorney or guardian to
be appointed, he said.

But the ruling was not a total defeat for Graham. He was released from jail
Friday after Raney sentenced him to the time he has already served -- about
60 days -- awaiting trial on two charges of violating an interdiction order.

Assistant Commonwealth's Attorney Mary Blaney had asked for an eight-month
sentence for Graham's second offense, and the maximum of 12 months for the
third time he went back to drinking.

"This is more than just a drunk-in-public case," she said. "Obviously,
something else has to be done" with someone who has amassed as many
drunk-in-public arrests as Graham, Blaney said.

The 38-year-old vagrant has estimated that he has been arrested thousands
of times for public intoxication, and testified Friday that he can only go
"maybe a few hours" without drinking when he isn't locked up.

While being drunk in public carries only a fine, violating an interdiction
order is punishable by up to 12 months in jail -- even if a so-called
"habitual drunkard" does no more than hold a bottle of booze or carry the
scent of alcohol on his breath.

Authorities have said interdiction is an attempt to deal with a small
number of people who account for the majority of disruptive behavior
downtown. Roanoke makes more drunk-in-public arrests than any other
Virginia city, and police turned to interdiction after repeated complaints
from downtown merchants.

Critics of the practice -- including the American Civil Liberties Union --
have called interdiction a misguided effort to criminalize what is a public
health problem.

Milani had argued that "logically it doesn't make sense" to argue that
Graham is a habitual drunkard yet not suffering from a disability.

State law requires that someone who is disabled -- which includes being an
alcoholic -- be appointed a legal guardian or attorney when he or she is
the target of a legal proceeding such as an interdiction order.

In written arguments to the judge, Blaney contended that Graham had not
presented sufficient evidence to show that he was an alcoholic -- even
though she had cited his long record of public drunkenness.

Blaney relied on an appellate decision that held "there is no necessary
correlation between alcoholism and unlawful conduct." In other words,
nonalcoholics sometimes drive drunk, and even the hardest drinkers
sometimes avoid criminal charges.

Even if Graham has shown himself to be an alcoholic, Blaney's argument
continued, he was procedurally barred from challenging the Circuit Court's
order.

Milani said after the hearing that he could appeal Raney's decision,
although Graham may not wish to do that for practical reasons now that he's
out of jail. But with interdiction cases beginning to appear regularly on
the city's court docket, Milani said the issue is likely to be raised again.

After denying Milani's motion, Raney went on to find that Graham was drunk
in public in violation of an interdiction order on Feb. 11, and again on
April 8 while free on bond for the first offense.

Police officers testified that they saw Graham staggering around the
downtown area, and that his eyes were glassy and he smelled of alcohol when
they confronted him. At the time, Graham had recently completed a
four-month jail sentence for his first conviction of violating an
interdiction order.

Roanoke prosecutors have had more than a dozen people interdicted without
legal representation since December, and Blaney said no changes have been
made in the procedure as a result of Graham's challenge.

LAURENCE HAMMACK can be reached at 981-3239 or laurenceh@roanoke.com

Checked-by: Mike Gogulski