Question of legal construction and "primary purpose"

[Bricker]

@jtgain

Right, nothing in West Virginia. I deal with many probationers and have never seen a violation filed for something as minor as this. Usually they let one failed drug test fall away with a strong lecture from the probation officer–never sees a judge.

I agree that it doesn’t apply here whether he was in the bar area because it doesn’t apply here. It might apply to the next case. Also, as I was thinking, suppose they find him in a dive strip club. An argument could be made that the primary purpose of the place is not alcohol sales but exotic dancing.

I think I know the outcome. Whether the judge agrees with me or not, he will just amend the terms of the probation to say no place where alcohol is served PERIOD and dismiss the matter.

When that happens, we might have the same void for vagueness argument that the petitioner in the Washington case had: a probationer could walk into a restaurant but then find that beer is one of the drinks offered for sale on page 9 of the menu. Would it then matter if the ABC stickers were prominently posted near the entrance?

Or that the pizza place in the mall food court sells beer, so where are the outer limits of where he can be? The tables near the pizza place? The whole food court? The whole mall? The mall parking lot?

What about fairs and festivals not related to alcohol but where a single booth has a wine tasting? Ditto for sports venues.

It’s even more frustrating when this condition applies to offenses that were not alcohol or drug related, nor committed while under the influence of alcohol or drugs. It doesn’t seem to further a rehabilitative purpose; just to have a blanket rule which could trap the unwary, or in the alternative, find a violation that doesn’t actually further the goals of the justice system.

I think there’s enough caselaw upholding conditions like “no alcohol, period” that you’d find the road quite a bit tougher. In my view, your guy can walk away from this one based on the logic above, but if the judge amends the order, he won’t walk away from the next one.

Now, depending on how much time you have to devote to the case, maybe you can put together a brief for unconstitutional conditions, abuse of discretion, no rational relationship to the goals, etc. But I can virtually guarantee you’ll lose that at the trial court. That’s the kind of thing you win in three years at the court of appeals.