Attorney John Mlnarik
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Understanding Drunk in Public Laws this Saint Patrick’s Day
When advising clients on legal challenges, there are two components to every piece of advice: the legal and the practical. Advice on avoiding a fine for public intoxication is no exception to this principle. This St. Patty’s Day, here is what you need to know about drunk in public laws in California, no matter where you party.
First, the legal: Public intoxication in California is restricted by California Penal Code §647(f). In order to obtain a conviction, the prosecutor must prove that you were willfully under the influence of drugs, alcohol and/or a controlled substance (including prescription medication) and in a public place. While this seems broad, there are a number of limitations to the enforcement of this provision that you can leverage to defeat your charge or reduce your penalties.
It is worth noting first that the law requires the intoxication to be willful. This means that if one were drugged against their will, such as by ingesting a date rape drug, they cannot be convicted under §647(f). Also, the law requires that you be in a public place. This includes public property (sidewalks, streets, parks) and private property open to the general public (such as nightclubs, malls and airports). This also means that if police discover you in a private place, such as your home, and bring you into a public place (the sidewalk directly outside) there can be no conviction under §647(f).
Furthermore, there are constitutional requirements that limit enforcement. Under the Fourth Amendment, the police need reasonable suspicion based on articulable facts to stop you. They can’t just pull you off the street and question you about alcohol usage. They need to be able to testify that you were stumbling or causing a disturbance in a manner that made you appear intoxicated in order to stop and test you. Once they’ve stopped you, they need probable cause to issue a citation and/or arrest you. They usually accomplish this by performing a field sobriety test. If any of these defenses or situations applies to you, be sure to raise them. The mere act of raising them, if the prosecutor finds them to be credible, is likely to result in dismissal. The DA’s office and the police do not have the resources to be fighting questionable §647(f) cases.
Finally, the penalties: Typically, at your initial hearing, you will be asked to plead guilty and pay a reduced fine. If you don’t dispute that you engaged in the activities prescribed by §647(f), it is smart to pay the fine and move on. However, if it goes to hearing on the merits, you could receive probation, a maximum of six months in jail and a fine of up to $1,000.00. Typically, first-time offenders will just pay a fine, but if you are a repeat offender, the DA may seek jail time. If you have been convicted of a §647(f) violation three times within a twelve-month period, you are required to serve a minimum 90 days in county jail. For this reason, if you have two convictions under your belt within the last twelve months it is wise to completely avoid being drunk in public at all.
Now, the practical advice: Be aware of your surroundings. At your local bar in your town/suburb, you are less likely to be picked up on public intoxication charges. Under normal circumstances, police generally do not want to go around badgering drunken individuals on their shifts. It is not pleasant or ideal work for an officer. However, in some larger cities or known party locations (such as Isla Vista in Santa Barbara) where people gather for mass revelry for occasions such as St. Patrick’s Day, Mardi Gras and Halloween, the police bosses instruct their subordinates to take advantage of the revelry. When they receive these instructions, they no longer have an ability to voluntarily avoid the fray and will be looking for you. There is no way to know what instructions have been given to officers in a particular department, but in places where logically this is a lucrative business, it is wise to be very careful.
Further, what I have written in the above regard is statewide law. Cities and counties are free to pass more restrictive laws or regulations by ordinance. The best way to ensure compliance with local rules is to follow the instructions of bartenders and bouncers. They want you to have fun – if they are telling you not to do something, it is almost certainly to avoid running afoul of local laws. If you want to become informed about local rules, do not hesitate to ask them.
Also, be aware of related charges. If you are bagged for drunk in public, you may also be charged with a lesser offense: disturbing the peace. Most drunk in public convictions result from an incident which calls attention to the Defendant. As noted above, an officer must have reasonable suspicion based on articulable facts to stop you and probable cause to issue a citation. This usually results from one of three things: (1) a disturbance involving loud or boisterous behavior, (2) intoxication so blatant the Defendant is unable to stand and walk properly, or (3) strange or bizarre behavior, such as an individual conversing with an inanimate object. If you fall into the first category, you will most likely be charged with the lesser-included offense of disorderly conduct, which carries fines of about half. If you are convicted of public intoxication, that offense will be included. If the prosecutor cannot show intoxication, then you may be convicted of disorderly conduct (Penal Code §415). Finally, there’s driving under the influence, which we all know carries steep penalties and deserves to be treated by its own article.