ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Monday, July 15, 1996 TAG: 9607150111
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
LAST WEEK'S CASE of a magistrate charged with forgery has changed the way drunk-in-public cases are handled in Roanoke.
For years, the best way to beat a drunk-in-public charge in Roanoke was to sober up behind bars.
After spending several hours in the Roanoke City Jail, most public inebriates were given a choice: take their case to court and face a misdemeanor conviction and a fine of up to $250, or just walk away and allow court officials to dismiss the charge.
Needless to say, nearly all drunk-in-public charges in Roanoke - an average of 5,390 a year since 1990, more than any other Virginia city - were dismissed.
At least, they were until a Circuit Court judge learned of the practice.
Judge Robert P. Doherty, who seemed surprised when informed of the city's policy last week during the trial of a magistrate charged with forging a drunk-in-public warrant, has called for a change.
After dismissing the charge against the magistrate, Doherty directed the city's magistrates and General District Court to start requiring all drunk-in-public defendants to appear in court for trial.
"Procedures followed in drunk-in-public cases have to be the same as those followed in all other criminal cases," the judge said.
Doherty also ordered that magistrates meet with suspects personally before charging them with public intoxication, and that warrants be served on the suspects while they are in custody - steps that are not always taken, according to testimony in last week's bench trial.
"The whole process was actually a fiction," said Jonathan Rogers, a Roanoke attorney involved in the case. "What it purported to tell the public was that the arresting officer had brought the defendant before the magistrate. That never happened.
"It also purported that the arresting officer executed the warrant upon the person. That never happened.
"And it purported that the defendant appeared in court and the charge was dismissed. That never happened. So in a sense, the paperwork was fictitious."
Rogers represented Noel Painter, a former magistrate who was charged with forgery after he signed the name of another magistrate to a warrant charging a woman with public intoxication. Painter said he did not want the woman, with whom he'd had a relationship, to know that he was the one who charged her.
Painter testified that he was only trying to prevent the woman from causing a disturbance in the city jail, and he figured his actions would be harmless because drunk-in-public cases do not go to court.
Doherty dismissed the charge, ruling that Painter did not have criminal intent even though he "committed a fraud upon the public."
But the case is sure to have a more lasting impact on the way drunk-in-public cases are handled in Roanoke.
Julian Raney, the chief General District Court judge for the Roanoke Valley, said last week that he is following up on Doherty's concerns.
"It is my intention to investigate the issues that were raised during the course of this trial," Raney said, "and if we discover any defects in the system, we will take steps to correct them."
One step already taken is that everyone charged with being drunk in public will now be tried in court. That could increase the General District Court's caseload dramatically, considering that public intoxication is the most frequently filed criminal charge by Roanoke police.
In earlier interviews, court officials have said the city's large number of drunk-in-public arrests - there were 4,452 in 1994, compared with 1,693 in Richmond and 2,444 in Virginia Beach the same year - is mostly because the law is more strictly enforced in Roanoke than in other cities.
Roanoke police are often called to the downtown area, where vagrants wander around intoxicated until they pass out on a bench or in an alley.
"They need to be taken off the street," Police Chief M. David Hooper said. "The bottom line is that they are out there; they are a danger many times to themselves and sometimes to the general public, and they are very often a nuisance."
A small group of chronic alcoholics accounts for a staggering percentage of the total arrests, a review of court records by The Roanoke Times found. In 1992, when there were 5,365 arrests for public intoxication, 50 of the most frequently charged men represented about 2,000 of the cases. Some of the suspects were arrested more than 100 times in a year.
Given those numbers, some say it was perfectly reasonable for the city not to prosecute drunk-in-public suspects for a nonjailable offense that carries a maximum fine of $250. Most people charged with public drunkenness are unlikely to show up in court, the argument goes, and even more unlikely to pay a fine.
"It would cost more to try to collect the fines than we will ever actually collect," Commonwealth's Attorney Donald Caldwell said.
Instead of devoting time and resources in a likely futile effort to fine people with no fixed income or address, Roanoke authorities have been addressing the problem on a short-term basis by simply removing the drunk from the public.
"The only reason we detain them to begin with is for their own safety," Chief Magistrate Bobby Casey said.
Once a public inebriate is determined sober - usually after a four-to eight-hour stay in jail - he is released.
Most localities tell suspects they must appear in court on a certain day. But in Roanoke, court dates are scheduled only if the suspect says he wants to challenge the case in court, Painter and another magistrate testified last week. Otherwise, the person is told that he is free to go.
When the public intoxication warrant makes its way up to General District Court, the case is marked dismissed by a clerk and a judge's signature is rubber-stamped on the back of the warrant. Thus, someone's 100th drunk-in-public charge can be treated as it if were his first.
Other localities - including Roanoke County, Salem, Richmond, Charlottesville and Virginia Beach - require suspects to appear in court on drunk-in-public charges, magistrates said in interviews last week.
Testimony during last week's trial also showed that in some cases, Roanoke magistrates issue drunk-in-public arrests without ever seeing the person they are charging. Magistrates are supposed to observe someone and speak with them before determining if there is probable cause to charge them with public intoxication.
But that can be difficult, if not impossible, when the suspect is kicking and screaming or, at the other extreme, passed out cold, witnesses testified last week. In those cases, magistrates issued charges based on the arresting officer's word while the suspect was held in an adjoining room.
Those cases are rare exceptions to the rule, according to Casey, who said there may have been "some miscommunication" in the way Doherty learned of the city's drunk-in-public arrest policy.
But since the judge made his directive Tuesday, magistrates have been informed that they must meet with each suspect in person before issuing a warrant, and that they must set a court date for each drunk-in-public arrest.
If the suspects do not appear in court, prosecutors are not likely to seek a bench warrant for their arrest.
Instead, the suspects will be tried in their absence, convicted on the basis of the arresting officer's testimony, and fined $15 to $25. (That has been the standard fine for the relatively few drunk-in-public cases that made it to court in the past, usually because the defendant faced a more serious companion charge, such as assault.)
The new procedures will require police officers to spend more time in court, but Hooper said he does not envision them making fewer drunk-in-public arrests.
Even if the fines are not collected, Rogers said, at least the public inebriates are being held more responsible for their actions than under the old system.
"There ought to be consequences for the acts these people are committing," he said. "In a sense, they get a free ride.
"So is the system encouraging repeat offenders? I think there's a strong argument that it does, by failing to act appropriately."
Bob Lynn, director of Changes, a drug and alcohol outpatient clinic in Roanoke, agreed that the system needs to hold public inebriates accountable before anyone can hope that they will change their ways.
"There's no question that people who have alcohol and drug problems never want to change until they start paying prices for their behavior," said Lynn, who is a member of the Roanoke Valley's Drug and Alcohol Abuse Council. "The bigger the consequences, the sooner they will hit bottom and want to change."
"So to me," Lynn said of the city's new drunk-in-public policy, "it's a real positive step forward."
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