GLOUCESTER - — On May 5, a Gloucester Circuit Court judge could make it a crime to sell a beer to Michael S. Roberts, a 41-year-old Hayes man with a long history of convictions for being drunk in public.

Roberts is being targeted using a little-used Virginia statute that allows prosecutors to petition a judge to declare someone "an habitual drunkard," making it a Class One misdemeanor — punishable by a $2,500 fine or up to a year in jail — for Roberts to buy, drink or possess alcohol. The same punishment would apply to anyone caught selling Roberts alcohol, though Gloucester County deputies rarely enforce the law against sellers.

"Right now, anybody walking down the street who's drunk off their butt can be arrested for 'drunk in public,' and there's not much of a penalty, except for a fine," Brian Decker said. He's the Gloucester County assistant commonwealth's attorney who's petitioning to have Roberts declared a habitual drunk.

"What it does is try to alleviate some of the aggravation on the arresting officer who gets called out to the same place three times in a week for the same drunken gentleman."

The original statute has been on the books since 1950.

The General Assembly added to the law in 1994, scrapping "habitual drunkard" for the more dignified "habitual public inebriate offender" and reserving the assignation for anyone convicted for being drunk in public 12 times in a calendar year. That version of the law was retired four years later, leaving prosecutors with considerable leeway to decide when to use the statute.

Howard Gwynn, commonwealth's attorney for Newport News, said he'd never even heard of the statute. Linda Curtis, commonwealth's attorney for Hampton, said she didn't know of the statute being used there during her 26 years as a prosecutor.

"This office typically doesn't prosecute drunk charges. They're a lower-, lower-class misdemeanor that doesn't involve the prosecutor's office," she said. "It wouldn't be something we would initiate on our own because we simply wouldn't be paying attention to people who would be found to be habitually drunk."

Decker said the Gloucester commonwealth attorney's office usually acted to have someone declared a habitual drunk after they've accumulated 10 alcohol-related offenses over the course of a few years. He said Gloucester invoked the law eight or nine times in the past 10 years.

Roberts has been convicted of at least 10 misdemeanors related to alcohol in Gloucester, Mathews, Newport News and Middlesex over the past several years.

The law technically makes it illegal to sell alcohol to someone whom a judge has deemed a habitual drunk. But Gloucester Commonwealth's Attorney Robert D. Hicks said his office didn't usually enforce that side of the law.

"If we wanted to do fliers with mug shots and take them around to liquor stores, we could," he said. "We've never taken it that far. We use it more as a tool: 'Stop being such a nuisance, and wait to get home to get drunk.'"