Introduction

The crime of public intoxication is not just being in public and being intoxicated.  As with most things in the law, it’s more complicated than that.  Because it’s more complicated than merely being “drunk in public,” the crime is more difficult to prove by the prosecution.  It’s actually not a crime to merely be drunk in public.  There are additional elements to the crime that must be proven beyond a reasonable doubt before you may be convicted of this misdemeanor.

Downtown Chico is notorious for overzealous policing of this particular crime.  Many arrests for “drunk in public” result in the person being hauled away to Oroville to sit in the “drunk tank” and then released several hours later without being charged.  For those fortunate enough to have their civil rights violated without the additional humiliation of facing criminal charges, the only damage done is the person’s criminal record reflecting a “detention only” remark next to PC 647(f).  For those charged with public intoxication, calling a local Chico public intoxication lawyer should be the first step the person takes.  The Law Offices of Matthew S. Luzaich can help you, call for a free consultation today.

The Statute(s)

“. . .[E]very person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:

Who is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, controlled substance, or toluene, in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.” Penal Code § 647(f).

The Elements

To prove that the defendant is guilty of this crime, the People must prove that:

  1. The defendant was willfully under the influence of (alcohol[,]/ [and/or] a drug[,]/ [and/or] a controlled substance[,]/ [and/or] toluene);
  1. When the defendant was under the influence, (he/she) was in a public place;

AND

3a. The defendant was unable to exercise care for (his/her) own safety [or the safety of others].

OR

3b. Because the defendant was under the influence, (he/she) interfered with, obstructed, or prevented the free use of a street, sidewalk, or other public way.

Someone commits an act willfully when he or she does it willingly or on purpose.

As used here, a public place is a place that is open and accessible to anyone who wishes to go there. (CALCRIM No. 2966)

The courts have held that the front lawn of a person’s home (where not surrounded by fencing), a walkway leading up to the front door of a dwelling, and common areas of an apartment complex are all public places for the purposes of this statute.

The statute also requires that the person be either so intoxicated that the person cannot exercise care of him/herself, or others, or be obstructing a public way.  Staggering, falling, being passed out, and other extreme symptoms of intoxication, generally satisfy the intoxication element.  Obstructing a public way usually means the person was passed out or so intoxicated he or she could not move from a place like the sidewalk, street, or publicly accessible building and people cannot use the public space without interference.  Those who are walking, talking, and functional may have a good defense to this crime.

Penalties

The crime of public intoxication is a misdemeanor punishable by either/ both a fine of up to $1,000.00 and/or imprisonment in the county jail for up to six months.

Defenses

This is a non-exhaustive list of the various defenses a person may have, the facts of your case may raise other possible defenses:

  1. One or more of the elements of the crime cannot be established:
    • You were not in a public place
    • You were not under the influence
    • You were not unable to care for yourself or other because of drugs or alcohol
    • You did not obstruct a public way
  2. The officer violated your civil/ constitutional rights
  3. Entrapment

Miscellaneous Information

Is there a certain blood alcohol concentration that will trigger a drunk in public conviction? 

The answer is no, although the higher a person’s BAC, the more likely the prosecution can establish that the person was unable to care for him/ herself.  Most people would still be able to function well enough not to be a safety risk at a .05% BAC, however, if the person is a .20%, that person will likely be displaying signs and symptoms of intoxication such that a police officer will be able to articulate that the person posed a threat to him/herself.

What is a public place?

A public place for purposes of Penal Code § 647(f) is any place that is public, or open to the public.  Streets, sidewalks, government buildings, and public parks are the basic public spaces covered by the word “public.”

It is the “open to the public” issue where things get complicated.  Places open to the public requires a more fact-specific analysis.  For example, a front lawn may be a place open to the public, however, where there is a fence around the lawn it may no longer be considered open to the public.  But if there is a large party where anyone off the street is invited to walk onto the property so long as they pitch in for the keg, now the fenced front yard could be considered “public.”  Similarly, the inside of a restaurant would during business hours be considered a public place because it is a place open to the public.  This same restaurant after it closes its doors for the day and locks up, may not be open to the public and may not be considered a public place.  As you can see, places “open to the public” is a fact-specific inquiry, and depending on the circumstances the same place may or may not be considered a public place for purposes of the public intoxication statute.

A skilled criminal defense lawyer may be able to argue that based on the particular circumstances the area in which you were found was not a public place.

Does a cop have to breathalyze the person before arresting them?

The answer is no.  Merely having probable cause to believe a person is so intoxicated that the person can’t exercise care for him/ herself is enough for the officer to make an arrest.  The officer doesn’t even have to articulate which drug the person may be under the influence of if s/he suspects the person is under the influence of drugs.  Chico State college students carrying their friend back to the dorm could be enough for an officer to stop them, and establish that the person being helped back to the dorm is so intoxicated s/he poses a safety risk to him/ herself.

Is diversion available?

Diversion may be available depending on the county in which you are charged and when you are charged.  Butte County may allow diversion.  Call for more information.

What You Should Do

A public intoxication charge is a misdemeanor.  On employment applications, often employers ask prospective employees whether they have any felonies or misdemeanors on their record.  Having a drunk in public/ public intoxication conviction on your record may impact your ability to gain employment with the company you want to work for.  Graduate schools also usually request this information, and may use it in their decision of whether to offer you admission.

Criminal Defense Lawyer Matthew Luzaich provides free legal consultations for prospective clients.  At this free consultation, he will discuss with you the facts of your case, how the law applies to the facts, defenses you may have, and possible outcomes.  For most misdemeanor offenses, including drunk in public charges, Mr. Luzaich can appear for you in court without you having to be present.  Call today for a free consultation.

Share This