There's a lot of misinformation out there about "drunk in public" charges. If you or someone you love has been arrested or cited for violating section 647(f) of the California Penal Code, stop taking bad advice from your friends -- read this instead.
Elements of the Offense
Just like the name implies, being "drunk in public" includes 2 elements that must both be established beyond a reasonable doubt: 1) that the defendant was "drunk", and 2) that he or she was "in a public place". As with many things in the law, though, those terms have special meanings that are a little different from their definitions in normal usage.
To be considered "drunk" for purposes of PC 647(f), the DA must prove that the defendant was so impaired by alcohol that he or she could not care for their own safety or the safety of others. Unlike in DUI cases, though, the DA does NOT need to prove the defendant's specific blood alcohol concentration. In DUI cases, the prosecutor can win by simply establishing that the defendant's BAC was above 0.08%. There is no specific legal BAC limit for walking around on the street, though.
To satisfy this first element (that the defendant was "drunk"), the DA will present evidence that the subject was a danger to him / herself or others. If the defendant was found wandering in the street, passed out, injured or involved in a fight, those facts would support the contention that the defendant was not able to care for his / her own safety. By law, people who are arrested on suspicion of violating PC 647(f) may demand a breathalyzer test, but they are not required to submit to one.
The second element of PC 647(f) trips up a lot of people who read the statute too literally. As I mentioned above, the California Penal Code uses some terms with meanings that may differ from their ordinary usage. "Public place" is one of those terms. Courts have determined that ownership of the land has nothing to do with whether or not a place is considered "public". Under PC 647(f), a place is considered "public" if it is open to the public and people are generally free to walk through while conducting legitimate business, even briefly. This includes the insides of privately-owned bars, private parking lots (including inside cars that are parked in private lots), common areas of apartment buildings, and even the front lawn of your own house. If a mail carrier or a Girl Scout could walk across your front lawn without being arrested for trespassing, then your front lawn is considered a "public place" for the purposes of 647(f). This means that you can be arrested for being "drunk in public" on your own front lawn.
Defenses to the Charge
The most common and obvious defenses to "drunk in public" charges are that the defendant was not drunk, or that the place was not "public".
I have actually (successfully) defended a case where my client was arrested for being "drunk in public" inside his own living room. I understand that the law uses an expansive definition of "public place", but this was just ridiculous. Granted, my client had been dangerously drunk, but he hadn't committed any crimes. He had weapons and the police wanted to get him out of the house to preventing him from hurting himself or someone else. If he had actually threatened anyone, he could have been charged with PC 417 (brandishing a firearm) or 422 (making criminal threats), but he hadn't. The only options police had were to arrest him on a bogus PC 647(f), or else to leave him drunk and alone with his weapons. Of course, the case was eventually dismissed.
Even if the defendant WAS dangerously impaired in a public place, "involuntary intoxication" is a defense if the defendant can prove that he was "dosed", or that he had involuntarily ingested some unknown substance. GHB for instance, is commonly used a "date rape drug". It can cause symptoms that are very similar to alcohol intoxication (poor coordination, slurred speech, disorientation, sedation, loss of consciousness, etc.). This is obviously rare, but I successfully defended a case a few years ago where witnesses confirmed that my client had only consumed 2-3 glasses of wine over the course of the night. One of the glasses had been given to her by a man she didn't know. Within about a half hour of her last drink, she began acting bizarrely and completely lost her ability to stand on her own feet. Police found her rolling on the ground in a parking lot. She appeared to be extremely drunk, but involuntary intoxication was the only logical explanation once the witnesses came forward. That case was also dismissed.
Alternatives to Prosecution
Even if the case is strong, there may be options to fight a 647(f) case, or at least to avoid a conviction.
Depending on a defendant's criminal history, he or she may be eligible for some form of "deferred entry of judgement" program. The specifics vary by county, but DEJ can satisfy a lot of the "objectives of justice" without hammering first-time offenders. It usually requires the participant to plead "guilty" in advance. A "sentencing hearing" will be scheduled several months later. Between the time of the plea and the sentencing hearing, the defendant will be ordered to satisfy various criteria (take a class about the dangers of alcohol, attend AA meetings, perform community service, etc.). If all those terms are satisfied before the sentencing hearing, then the case is simply dismissed. A defendant who successfully completes DEJ is never actually sentenced for the crime. Since a defendant is not technically considered "convicted" until he or she has been sentenced, successful completion of DEJ is a great way to keep a "conviction" off your criminal record.
If the defendant has several prior convictions and he or she is not eligible for DEJ, we can usually get creative to fashion to some alternative that has roughly the same result. I always argue that someone with several prior convictions needs treatment even more than a first-time offender. It doesn't make sense to me that someone with a well-documented history of alcohol abuse would be excluded from treatment-based solutions. If the defendant is willing and able to comply with some extensive course of alcohol counseling and / or treatment (or if the defendant is ALREADY in a program like that), we may be able to negotiate a deal whereby he or she receives credit for time spent in that treatment. Obviously, everyone benefits if we can ensure that the same problem is less likely to arise in the future.
If you or a loved one has been arrested or cited for violating section 647(f) of the California Penal Code, commonly referred to as "drunk in public", call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Fullerton Drunk in Public Lawyer
No comments:
Post a Comment