I've been charged with violating 18.2-388. Which is:

Profane swearing and intoxication in public; penalty; transportation
of public inebriates to detoxification center.

If any person profanely curses or swears or is intoxicated in public,
whether such intoxication results from alcohol, narcotic drug or other
intoxicant or drug of whatever nature, he shall be deemed guilty of a
Class 4 misdemeanor. In any area in which there is located a
court-approved detoxification center a law-enforcement officer may
authorize the transportation, by police or otherwise, of public
inebriates to such detoxification center in lieu of arrest; however,
no person shall be involuntarily detained in such center.

Basically, an officer watched me leave a bar, walk 15 steps then he
stopped me. His reason for stopping me was because he thought I was
unsteady while I walked. He had me perform the stand on one foot FST and
I failed. I reached 15 seconds instead of 30. He arrested me and
transported me to jail where I spent the night. In Virginia, the
definition of intoxicated is as follows:

4-100
"Intoxicated" means a condition in which a person has drunk enough
alcoholic beverages to observably affect his manner, disposition,
speech, muscular movement, general appearance or behavior.

I couldn't find information on defenses for entrapment or mistake of
law in Virginia. The following are some proposed defenses. Please keep
in mind that I do not intend to use them all in the same case. I can't
use some of the arguments in conjunction with each other because some
state that I was intoxicated and others state that I was not.  I'm
wondering if the following have any precedent or are even convincing.
I understand that any answer given here is no substitute for legal
advice or for adequate representation.

Entrapment defense: All bartenders in Virginia are licensed by ABC for
the privilege to sell alcohol. It is illegal for a bartender to get
you intoxicated according to COV 4.1-304 and 4.1-306. Since bartender
is licensed by an agency of the State, he acts on the behalf of the
state. The bartender not only illegally enabled me to become
intoxicated, but also compelled me to become intoxicated. He compelled
me to drink by giving me free alcohol (it was my birthday that night).
Also, all advertising in that bar is designed to compel you to stay
and drink. An officer of the state arrested me because of the illegal
actions of another person working on behalf of the state.

Mistake of Law: My interpretation of 4.1-304 and 4.1-306 is the cause
of the offense. Bartenders not only have the privilege of selling
alcohol, but also the responsibility. I still maintain that it's
impossible for me to become intoxicated in a bar when the bartender is
acting legally. The arresting officer watched me walk out of a bar and
therefore could reasonably assume that I drank there. The officer did
not question me as to who sold me alcohol nor did the officer
investigate any wrongdoing the bartender may have done. Since no
warrant or other arrest was made, the police officer must have thought
the bartender acted legally. If the bartender acted legally, then I
acted legally. Since I judged the bartender?s actions legal, I judged
my own actions legal. If I acted illegally, it?s only because I
misjudged the legality of the bartender?s action. At least that's my
interpretation of the law.

Wrongful Arrest: An officer may not arrest, without warrant, someone
for a misdemeanor offense not committed in his presence (with some
exceptions). The law specifically states "If any person profanely
curses or swears or is intoxicated in public, whether such
intoxication results from alcohol, narcotic drug or other intoxicant
or drug of whatever nature." The law isn't broken by appearing in
public intoxicated, but rather becoming intoxicated in public. Since
the officer never saw me drink one beverage, the misdemeanor crime did
not happen in his presence. I?m pretty sure the wrongful arrest
argument won?t work because I?m narrowing the interpretation of the
law too much, but I might as well put it out there.

Insufficient Evidence: I was tired, that's why I walked unsteadily and
could not keep my balance during the FST. I was coherent, not
belligerent, and offered proper identification in a timely manner.
When I saw the magistrate, I was able to give my name and address
immediately. I may have smelled of alcohol, but I was in a bar,
drinking?. which is not illegal.
The police did not investigate the bartender. Maybe I can get the
police officer to say that the bartender probably didn't think I was
drunk therefore he didn't investigate the matter any further. (That's
the same as saying someone else could reasonably assume I was not
intoxicated.) The police officer did not take me to a court appointed
detoxification facility, but rather jail. I think that's proof that
the police officer must not have thought I was intoxicated.

Which of the arguments would most likely apply in my case?

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Clarification of Question by dark1nf3rn0-ga on 09 Sep 2005 05:50 PDT

I'd also like to know any ideas that can strengthening any of the
arguments I presented, or maybe offer a better argument.

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Clarification of Question by dark1nf3rn0-ga on 09 Sep 2005 22:23 PDT

Based on comment #1 here's a clarification:
Mistake of law is considered an affirmative defense. While ignorance
is no defense of the law, it is a defense to say that my
interpretation of the law is what caused my criminal action. I claim
that my interpretation of the law, the bartender is required to not
serve to the point of intoxication, is what caused my intoxication.
Because I considered the bartender's actions legal, I deemed my
actions legal.
As for the wrongful arrest, I was interpreting the word intoxicated to
be an action verb not a state of being. The interpretation that the
word "intoxicated" is only an active verb is too narrow, even for my
taste.
That's an interesting point about licenses. I didn't think about it
that way. My argument would deem all who hold driver's licenses are
driving on behalf of the state. I probably shouldn't argue about
licenses at all.
I do agree entrapment is a hard sell. I disagree that the bartender
would have to physically make me drink to compel me to drink. I hate
that, the difference between enabling and compelling. Though, I would
argue that the bartender incapacitated me by continuing to serve me
past a reasonable state. In fact, the reason why the bartender is
required to stop serving you before point of intoxication is because
each drink incapacitates.
Here's a comparison for the entrapment defense, if someone put up a
45mph sign in a 35mph zone and you drive through at 45mph and you are
pulled over for driving 10 over, are you criminally liable? If the cop
knew the incorrect sign was up after the offense was committed, isn't
the cop showing that he intends to commit the same entrapment again?
Is that an entrapment defense?
In this case, the incorrect sign (the bartender continuing to serve
past intoxication) was never corrected. In fact, it can be argued that
the officer intends to entrap again. Maybe it could be argued that the
bartender is unknowingly acting on the behalf of the state.
That's funny you mention that I'd probably do well in law school, I
was arrested not two blocks away from a law school. Maybe it's a sign.
Thanks for compliment and the comment, it's really making me think.

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Clarification of Question by dark1nf3rn0-ga on 11 Sep 2005 03:50 PDT

Clarification for question 2 - According to police procedure, the cop
said, "You appear to be a danger to others or yourself." I made a
total of 15 steps from the door of the bar to across the street. At
which time, I spoke to no one and I didn't walk in front any moving
vehicles. According to the officer, I drew attention to myself by
appearing unsteady. I'm almost positive that if I was somewhere else
(not by a bar) I wouldn't have been stopped. There's data that's
publicly available showing that there are an excessive amounts of
arrests being made in that area due to violation of 18.2-388. Although
there are no records of arrest for violation 4.1-304 and 4.1-306
(serving to intoxicated persons). Bartenders operate with impunity and
the patrons are beings cited for intoxication. Personally, I think
18.2-388 is too ambigious to make any reasonable sense.
First, the public intoxication law uses the word "intoxicated"
differently than defined in 4-100. 4-100 says intoxication is caused
by alcohol and 18.2-388 uses the word to include any drug of whatever
nature. The law also doesn't define what "observable" behavior is. If
you have one drink and become more talkative as a result, you're not
intoxicated but you're affected. According to the law, you'd be
considered intoxicated. It's legal in the state of Virginia to consume
alcohol in public (ABC laws cover this) but according to 18.2-388 it's
a misdemeanor. I think the law is badly written and being abused by
the state for monetary gain. Section 18 is the section of the law for
public decency. There is not one person who was offended by my actions
nor were my actions offensive in nature. My actions didn't disturb any
process of civility and yet I'm charged with an offense against
decency.

Usually, entrapment would only work if the bartender was an actor of
the state (ie working in an official capacity, with the police, etc.).
 You could argue that since the state licensed him, he was a state
actor, but then you would also have to argue that anyone with a
driver's license is licensed by the state and would be an actor of the
state as well.  It isn't a bad thought, but it would make almost
everyone in the state of Virginia over the driving age an actor of the
state.  Good thought, don't think it would work, but you can try it. 
If it doesn't work, you are still in the same position.  Plus he might
have compelled you to drink because they were free, but unless he tied
you down, pried open your mouth and poured it in, or if he put a gun
to your head and threatened your life, then you were still the one
that chose to keep consuming.

As for the mistake of law - are you suggesting that the officer
mistook the law or you?  I don't think that would work they way you've
argued.  If I'm reading it correctly, your defense would be "Well, the
bartender was right, and I was right.  But if the bartender was wrong,
I'm still right.  Go bother him."  It doesn't work like that.  I'm not
clear on your argument for this one, so that's all I'm going to say.

On the wrongful arrest, I think that you are reading the law wrong. 
It says "is intoxicated in public".  The plain meaning of that is that
you could get arrested if you are intoxicated in public.  It doesn't
say you have to become intoxicated in public, just that you are
intoxicated in public.  There's a difference - I could drink myself
silly in my house (not public), but the second I'm outside, I would be
intoxicated in public.  Now, with the officer not seeing it, he saw
you unsteady (you said that you were unsteady and that you couldn't
maintain your balance).  That would probably be enough to stop you.
Plus, he saw you do it.  However, how were you acting?  Did you slur
your speech?  You said that you were coherent, but is that what the
officer thought?

In my opinion, the insufficient evidence is a good argument, but still
thin.  It may be hard to prove.  You could say that you were tired,
but alcohol could cause drowsiness.  You were able to give your name
and address immediately, but that doesn't necessarily mean a whole
lot.  Depending on the time between the officer seeing you allegedly
intoxicated in public and appearing before the magistrate, there could
be an argument that you "sobered up" enough to know your name and
address.  I don't think the officer would have to investigate the
bartender.  He probably doesn't care what the bartender thought.  And
you wouldn't be able to get him to speculate was the bartender thought
- it would be objected to and more than likely sustained.

The fact that he didn't take you to a detox center...could be a good
argument, but the way I read the statute, it seems like it is in the
officer's discretion, and it doesn't seem to be based on the level of
intoxication.  It's pretty hard to overcome a discretion judgment.  Is
there a court approved detox center in the area?  If there is that
could be helpful.

I'm basing all of my opinions on what I picked up in law school and my
knowledge of Ohio law.  I do not know Virginia law, so I may be way
off on everything.  And this isn't legal advice either.  I'm probably
just playing Devil's advocate, but I tried to give you the arguments
that they would try to use to counter your defenses.  I hope that it
helps you a little.

If you don't mind my saying, I think that you would do well in law
school (if you aren't already in law school).  It's arguments like
this that professors love.  Good luck on your case.

Were you doing anything which could be construed as dangerous to
others or as a public nuisance? Obviously you weren't drunk in charge
of a vehicle.

Remind me not to get mildly intoxicated in Virgina.

it will come down to this if you make it in front of a judge, the cop
will tell what he say which lead him to make an investagory stop in
which he concluded you where intoxigated in public, on your side will
will try to refute each element or fact he stated for his reason to
concluded you where drunk, then you may point out where the evidence
doesn't show you where drunk and what he failed to do,