Lawyers and drinking have held hands since the early history of the nation and that tradition continues with my friend and colleague, a lawyer in Traverse City, Michigan. Drinking and the law go together so well because lawyers must drink.

It’s practically the law. And because judges are former lawyers and also must drink, judicial opinions are never clearer than when they recite the iniquities (and pleasures) of drink. Judges have actually provided a legal definition of “drinking,” though that term does not appear in Black’s Law Dictionary. In a 1960 case called Wentworth v. Doliner, the Pennsylvania Supreme Court stated, “The word ‘drinking,’ where alcohol is involved, carries the inevitable connotation of considerable drinking. Certainly, no one familiar with the idioms of current language would say of a person, who had consumed a single glass of beer, that he had been ‘drinking.’”

Even a boring trial can be livened by a thrilling retelling of a night of hard drinking. In the Wentworth matter, the court wrote, “[T]he matter of drinking was gone into at such length [at trial] and with such zest that the trial record is almost audible with clinking glasses, gurgling vodka and wassail, intermingled with noisy consumption of one-foot-long hot dogs, pizza and milkshakes….”

Reading the law also allows one to learn a few lessons about bars and barflies. In an 1887 case called Rommel v. Schambacher, an underage drinker named William Rommel entered a bar in Philadelphia owned by Jacob Schambacher and had a few drinks with an older man named Edward Flanagan. After getting pissed, the two men exited the tavern with the bartender Schamacher. While Schamacher distracted the minor with conversation, the older gentleman “pinned a piece of paper to Rommel’s back, and set it on fire.” These are lessons that must be learned early.

In 1864, the owner of a blind pig in Manchester, New Hampshire brought a suit to recover money damages for the destruction of his bar. Apparently, a drunken brawl started when someone in the backroom playing a few hands of poker passed a counterfeit bill. The New Hampshire Supreme Judicial Court lectured the saloon owner over his patently frivolous lawsuit, saying that “[b]y openly keeping a saloon for [gambling] purposes, he invited such company as usually frequent such places, solicited them to gamble, and offered them a stimulus highly provocative of brawls, affrays, riots, and all other crimes.” Exactly.

Traverse City is situated on the shores of the Grand Traverse Bay, a majestic freshwater body of water linked with Lake Michigan. Yet even in summer, the water can be bitterly cold. My friend the lawyer sometimes utilized this body of water early in the morning after a night of drinking to relax and contemplate the stars. There’s a long history of enjoying cold water to freshen up for work. In a 1979 case before the U.S. Army Court of Military Review, the military judges announced that drill sergeants should not be disciplined for utilizing “the time-honored remedy of sobering up the intoxicated soldier by giving him a cold shower.” According to the military court, the act of dunking a drunk’s head in cold water “is intended to subdue or revive rather than to chastise; therapeutical rather than degredational.”

Other “time-honored” remedies for drunkenness have failed in their purpose. In a matter regarding a remedy called “Mrs. Moffat’s Shoo Fly Powders for Drunkenness,” a federal court in New York State ruled that the remedy was more poison than cure. Mrs. Moffat’s powder, a mixture that included antimony and potassium tartrate, was advertised as being in use for 60 years and highly effective. Of course, the side effects to this cure for drunkenness included projectile vomiting and explosive diarrhea. The court decided that though the powder “clears the stomach, the fact that alcohol is absorbed into the blood stream within twenty minutes to half an hour after being taken into the stomach, the emetic could not usually affect the action of the alcohol.”

My friend and colleague announced that he would be returning to, Missoula, Montana, where he attended law school. Traverse City, for its water, plentiful spirits, and exceptional parties, did not appease him satisfactorily. The locals will miss him dearly.

As much as I hate to admit it, perhaps my friend is on to something. Apparently, the judges in Montana burn with a low blue flame. For example, members of the Montana Supreme Court have written about the evils of using blood alcohol tests as a measure of drunkenness. In a 1985 case called, Bartel v. State, the (Puritan) majority upheld the lowering of the legal BAC to 0.10 percent from 0.15 percent over the strenuous objections of three dissenters. The dissenters, apparently no stranger to the bottle, argued that legal limits for BAC were totally arbitrary. They wrote, “It is our common observation that some people carry their booze better than others.” The dissent stated that they have “never worshipped at the shrine of the blood test results because they are for the most part a false idol, with feet of clay and the heart of a gas chromatograph.” To continue:

This Court, like many another, has fallen prey to the pseudo-science of alcohol concentrations in the blood, urine or breath to determine drunkenness. With the advent of statutes using alcohol concentrations to define drunk driving, a holy mystique of sorts has grown up around the levels defined in these statutes. Courts and lawyers untutored in chemistry and in spite of their own experience accept these levels without question. They establish these statutes as establishing a sharp cleavage between drunkenness and nondrunkenness. The assumption is embraced that one having an alcohol concentration greater than 0.10 is drunk, even though that assumption belies their own personal observation.

 

The dissent concluded by noting, “Now courts give greater probity to blood test results than to witnesses’ observations of drunken persons, then the reverse should be true. To paraphrase the remark about pornography, we cannot define drunkenness, but we know it when we see it.” Truer words could never be spoken.

Montana sounds good on the surface, but my friend the lawyer must beware, for an innocent evening of drinking in Montana may turn ugly. In a case called State of Montana v. Peschon, Richard E. Walters, was relieved of $160 during a classic “lost weekend” that began on Saturday, December 31, when Edwards cashed his paycheck, and ended on Monday morning, January 2, when he awoke in the Blaine County police station minus his wallet. Walters had arrived in Chinook, Montana on New Year’s Eve, flush with about $360 in cash, and began traveling from bar to bar, “drinking and buying” until the bars closed. He went to bed at the Chinook Hotel and started up again around 8 AM the next morning, again traveling from bar to bar “drinking and buying.” In the afternoon, Edwards met Lee Falcon and proceeded to buy several drinks for Falcon and, too drunk to count, paid for the drinks by handing his billfold over to the bartender. Around 7 PM, Falcon introduced Edwards to the girl with him named Carol. Despite being “pretty drunk,” Edwards bought a drink each for Falcon, Carol, and himself. Immediately upon taking his drink, Walters passed out but good, wallet still flush with “several twenty dollar bills.”

My friend had better beware of Montana-style lovers’ quarrels. In the 1961 case Nevin v. Carlasco, an innocent bystander named Helen Nevin suffered a horrible ankle injury when Wilbur Workman, “motivated by the irresistible call of affection,” attempted to kiss his companion Sandra. “She being the eternal female at the moment, decided she did not want to be kissed and shoved Workan,” who fell off his bar stool and landed on poor Ms. Nevin. Other Montana cases arising from barroom disputes involved shotgun shootings, Kipp v. Wong (1974), and terrible drunken wheelchair calamities, Cusenbary v. Mortensen (1999).

Hopefully, this primer will assist my friend. He does not engage in lovers’ quarrels and does not pass out bars with a fistful of cash. He seems to have a level head on his shoulders. And yet, the Traverse City locals will remember him well for his only crime, a crime that, unfortunately, does not carry the penalty of disbarment.

One evening in the Loading Dock in Traverse City, the lawyer, my colleague and friend, polished off his third or fourth Manitou, wiped the beer drool off his mouth, and declared that he would sing Gram Parsons for the crowd. The band had taken a fifteen-minute break a half-hour earlier and still hadn’t returned. He walked with the purposefulness of a true drunk. He reached the stage and took the microphone with a practiced, professional cool. He opened his mouth and uttered … nothing. An empty gaze invaded my friend’s face as he forgot the words. The tavern quieted as if it had waited for this moment the whole evening. The band, the side project for the singer of some Top-40 Detroit glam band, slowly returned to the stage and patiently waited. Still, nothing came. The lawyer leaned to his right and asked the keyboard player if he knew any Gram Parsons. The musician shook his head. For a few moments longer, he gripped the microphone with confidence and swagger. Still, nothing came. Eventually, my friend stood down and the Loading Dock greeted him with much applause.

I hope my friend’s public appearances in Missoula fare as well.

Matthew L.M. Fletcher

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