Virginia liquor control agents cannot give breath tests to bar patrons such as the field tests done by Fairfax County police in a series of December raids, a senior official told the agents in a memo that draws a sharp distinction between the two law enforcement agencies.
The memo stopped short of directly criticizing Fairfax County police for the Christmastime raids in which nine men were arrested for public intoxication. But its writer, S. Christopher Curtis, director of law enforcement for the state Department of Alcoholic Beverage Control, said the "controversial operations" have led him to remind agents they must receive approval from the agency's deputy director before embarking on large-scale undercover raids.
"Our policy is to cooperate with other law enforcement agencies in enforcing state law," said Curtis's Jan. 24 memo, which was released yesterday by Sen. Janet D. Howell (D-Fairfax). "We do not, however, want to participate in intoxicated patrons enforcement operations that do not adhere to our standards and procedures."
In the December operation, plainclothes officers entered 20 bars in Reston and Herndon looking for violations of state liquor laws. At three establishments, they summoned uniformed officers, who arrested nine patrons for being drunk in public, a Class 4 misdemeanor. In Virginia, bars and restaurants are considered public places. Several other patrons were given breath tests and released even though they had had little or nothing to drink.
The December arrests have been criticized by politicians, civil libertarians and bar owners, who say the raids have caused customers to go elsewhere for fear they will be arrested during their dinners.
Fairfax police, who declined to comment yesterday on the ABC memo, have defended the raids, saying they were doing their job by enforcing state laws against public drunkenness.
There is no specific blood-alcohol standard under those laws, as there is for drunken driving, and anyone who is not behind the wheel has the right to refuse a breath test.
Howell has introduced an amendment to the state budget that would prohibit state money from being used by the ABC for raids on bars and restaurants. What Howell calls her "crowbar bill" has remained as a rider on the budget passed by the Senate Finance Committee.
"Local citizens enjoying dinner with friends and family should not be subjected to such embarrassment or harassment if they have not exhibited the obvious signs of public drunkenness," Howell said.
ABC agents accompanied Fairfax police on the raids.
Becky Gettings, a spokeswoman for the agency, said the memo referred to situations in which state agents make arrests instead of merely "advising and observing," as they did in Fairfax.
The memo to ABC agents restates existing policy. Curtis said agents must observe a patron acting drunk, and be able to say what that behavior is, before making an arrest.
"Our policy also prohibits the use of a field breath test to determine public intoxication," he said.
Curtis said that techniques used to establish whether someone is driving under the influence of alcohol do not apply to customers sitting in a bar. A breath test given before an agent observes drunken behavior means there was no reasonable suspicion to approach the patron in the first place, he said. After the patron is observed behaving drunkenly, there is no need to administer a breath test, he added.