Public Intoxication -

Public Intoxication

July 31, 2021 Fretzel Samala Comments Off

Public Intoxication

California Penal Code 647(f)Public Intoxication – California’s law against Public Intoxication applies whenever anyone is found in a public place under the influence of a controlled substance, with the result that the person can’t care for his or her own safety or the safety of others. The law also applies if a person interferes with, obstructs, or prevents the use of a public path or street because the person is under the influence of a controlled substance.

Public Intoxication is a Misdemeanor crime. You face up to six months in a county jail if convicted, or a fine of up to $1,000, or both a fine and imprisonment.

What Does California Penal Code 647(f) [Public Intoxication] Prohibit?

In sum, to be guilty of Public Intoxication under CPC 647(f), you must:

  • Be under the influence of a controlled substance in a public place; AND,
  • Be unable to exercise care for yourself or others; OR,
  • Obstruct the free use of public streets/walkways.

Defining “Public Intoxication” Under California Penal Code 647(f)

Public Intoxication. To convict you under CPC 647(f), the prosecution must prove the following beyond a reasonable doubt:

  • Willfully/Under The Influence: You were willfully under the influence of a controlled substance; AND,
  • In A Public Place: You were in a space defined as “public” under the law; AND,
  • Unable/Exercise Care: You were unable to exercise care for your safety or the safety of others; OR,
  • Interfered With…/Public Way: You interfered with, obstructed, or prevented the free use of a street, sidewalk, or another public way.

Example: A college student, Defendant Dean, goes drinking on New Year’s Eve. He gets extremely drunk. After the bar where he’s drinking closes, Dean wanders outside and drifts into the public street. He doesn’t notice that a police car is bearing down on him. The car barely misses Dean. The driver, Officer, gets out and arrests Dean for Public Intoxication in violation of CPC 647(f). Should Dean be convicted?

Conclusion: Dean, intending on consuming alcohol, went to a bar and got very intoxicated. Then he walked into a public street, which prevented its free use by drivers, including Officer. It’s irrelevant that Dean wasn’t actually hit by the police car; the crime was complete when Dean wandered into the street after willfully becoming intoxicated, thereby obstructing the road. Dean, it follows, should be convicted.

Penalties For Public Intoxication Under CPC §647(f)

As noted previously, Public Intoxication is a Misdemeanor under California law. If convicted, you face up to six (6) months in county jail, a fine of up to $1,000 (one-thousand dollars) or a fine and imprisonment.

Public Intoxication could affect non-citizens with DACA status.  It can also be deemed a crime of Moral Character or Crime of Moral Turpitude where a non-citizen’s status may be affected adversely.  It could lead to deportation, removal or denial of entry or status changes.

Defenses To California Penal Code §647(f) – Public Intoxication

Three of the most common defenses against a charge of Public Intoxication are:

You Weren’t In Public

Example: Defendant Deana goes to a barbecue at Friend’s house. Thinking she’ll eat a lot, she doesn’t consume anything the night before, but Deana starts drinking beer when she arrives. Deana decides not to eat altogether. She quickly becomes inebriated, starts yelling and falls down, almost striking her head on the concrete. Finally, Friend, unable to control Deana and concerned for her health, calls the police, who arrest Deana for violating 647(f). Should Deana be convicted?

Conclusion: Deana willfully became intoxicated and demonstrated that she was unable to care for her own safety when she fell and almost hit her head on the concrete in Friend’s backyard. However, Deana was in Friend’s backyard (a private space) when the incident occurred. This wouldn’t be a “public place” simply because it isn’t “a place that is open and accessible to anyone who wishes to go there.” Deana, therefore, shouldn’t be convicted simply because she was in a private place.

Your Civil Rights Were Violated During Police Investigation

Example: Defendant Damian goes to his favorite tavern to watch a football game. He drinks too much. When he leaves the tavern he falls down and passes out on the sidewalk. The police are summoned. Arresting Officer looks over Damian, decides he’s too drunk to understand Arresting Officer, then cuffs Damian and throws him in the back of a police cruiser without reading Damian his “Miranda” rights. Later, at the station, after Damian has become coherent, Arresting Officer still neglects to read Damian his rights. Damian is then charged with violating §647(f). Should Damian be convicted of the accusation?

Conclusion: While police have a limited excuse for not reading an arrestee his or her rights when that person is incapable of understanding them, the excuse ends when the suspect is capable of hearing and understanding those same rights. At that point, police must read to the suspect his or her “Miranda” rights; otherwise, the civil rights of the arrestee are violated. In this example, Damian was too drunk to understand Officer on the street but not later at the station, yet Officer didn’t read Damian his rights in either case. Without knowing his rights, Damian could effectively be tricked into convicting himself through his own statements, a fundamental denial of civil rights in the United States. Damian shouldn’t be convicted because Arresting Officer violated Damian’s civil rights while investigating the situation.

There Was Insufficient Evidence Of Your Intoxication

Example: Officer finds Defendant Dina passed out atop a bench in a public park. Suspecting that she has violated CPC 647(f), Officer arrests Dina without giving her a field sobriety or blood alcohol test. Then Officer takes her to the station (instead of the hospital) and has her booked without having a blood test performed to determine whether Dina is under the influence. When the time comes to file the charge, Officer has no facts showing that Dina was intoxicated in public. Should Dina be convicted nonetheless?

Conclusion: Officer, while he came upon Dina passed out in a public place, had to determine whether Dina was intoxicated if he wanted to charge her with Public Intoxication. The statutory law calls for a defendant to have at least one of the listed substances in his or her system at the time of the arrest. However, Officer didn’t test Dina in any way, nor did he even inquire whether she was intoxicated; he simply assumed she was inebriated in public, then arrested, and charged her. This means that Officer cannot meet the evidentiary standard required to convict Dina of violating the law; he has no proof. Dina should be acquitted because there’s insufficient evidence she was intoxicated at the time of arrest.

Related Offenses

Note: The crimes below are described as “related” because they’re frequently charged with CPC 647(f) and/or have common elements that the prosecutor must prove beyond a reasonable doubt.

The California Penal Code includes several offenses related to Public Intoxication, among them: Driving Under The Influence (CVC 23152(a)), Under The Influence Of A Controlled Substance (HSC 11550), and Disturbing The Peace (CPC 415).

Drunk in Public

A person who is found in a public place under the influence most intoxicating substances can be prosecuted for a crime of Drunk in Public. Drunk in Public does not require alcohol intoxication. It can be prosecuted for being under the influence of almost any drugs or combination of drugs and alcohol.  The penal code section used to prosecute public intoxication is found in California Penal Code section 647(f).

Driving Under The Influence

Driving Under The Influence (23152(a),(f),(g)) (“DUI”) is a crime under the California Vehicle Code (CVC). You can be charged with Driving Under The Influence when you drive a vehicle under the influence of alcohol, a drug, or alcohol and a drug. The crime is related to Public Intoxication because you can be charged in the same trial with DUI and with being intoxicated in public.

If you’re convicted of Driving Under The Influence, usually a Misdemeanor, the penalty may be:

  • A term of up to six (6) months in county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment.

Note: The way you drive isn’t in itself enough to establish whether you’ve driven under the influence. It isn’t a defense that you’re legally entitled to use a drug, or that something else might’ve impaired your driving ability, if you’re under the influence when arrested for DUI.

California Criminal Jury Instructions – Driving Under The Influence

To convict you under CVC 23152(a), the prosecution must prove the following beyond a reasonable doubt:

You drove a vehicle while under the influence of an alcoholic beverage.

Example: Defendant David is drinking with friends in his house when he realizes that he’s left his newly-painted truck in the driveway. David, worried that the sun will spoil the new coat of paint, dashes from the side of his house while holding a beer and his keys. David hops into the truck and starts the engine just as Officer (who saw David running) pulls up to David’s curb, gets David out of the truck, administers a blood alcohol test and arrests David for having a blood alcohol level of 0.10. David insists that, since he was just pulling into his garage, he wasn’t really “driving” when arrested. Should David be convicted?

Conclusion: California DUI law contains no specifics regarding how far or for how long you have to drive to violate the law. Any driving, for any amount of time, is enough, so long as you have alcohol in your system in an amount that exceeds the legal limit at the time of arrest. David started the engine (which is enough to “drive” his truck) while having a blood alcohol level above 0.08, California’s legal limit. It doesn’t matter that David was only driving a few feet into his own garage. David should be convicted.

Under The Influence Of A Controlled Substance

California’s Health and Safety Code (HSC) establishes the crime of Under The Influence Of A Controlled Substance (HSC 11550(a)). The law applies whenever anyone willfully uses, or is under the influence of, an illegal drug or one of the controlled substances listed in the statute (which are part of the Health and Safety Code). The crime is related to Public Intoxication because you can be charged under CPC 647(f) and HSC 11550 in the same trial if police think you’re intoxicated and under the influence of a controlled substance when you’re arrested.

If you’re convicted of Under The Influence Of A Controlled Substance, a Misdemeanor, the penalty may be:

  • A term of up to one (1) year in a county jail; OR,
  • A fine of up to $1,000 (one-thousand dollars); OR,
  • Both a fine and imprisonment.

Note: You’re not guilty of using or being under the influence of a controlled substance if you have a valid prescription for the substance written by a physician licensed in California. The prosecution has to prove you don’t have a valid prescription. However, even if you are convicted, the court can still place you on Probation (allowing you to serve at least part of your term outside jail) for as long as five years.

California Criminal Jury Instructions – Under The Influence Of A Controlled Substance

To convict you under HSC 11550(a), the prosecution must prove the following beyond a reasonable doubt:

You willfully and unlawfully used a controlled substance listed in HSC § 11550 a short time before your arrest or you were under the influence of a controlled substance listed in HSC 11550 when arrested.

Example: A motorist, Defendant Doug, is pulled over for driving slowly in the fast lane of the 5 Freeway. Officer gets out of his cruiser, approaches Doug, and asks Doug whether he’s under the influence of drugs or alcohol. Doug shows him a bottle of Serotonin and explains that he very recently took it “for [his] depression.” Officer recalls that “Depressants” are covered under HSC 11550(a) (in HSC 11054) and arrests Doug for being Under The Influence Of A Controlled Substance. Should Doug be convicted?

Conclusion: “Depressants” are listed as controlled substances in HSC 11550. However, though Doug drove having recently taken Serotonin, Serotonin is actually an anti-depressant. The drug, therefore, couldn’t qualify as an illegal “Depressant” for purposes of prosecution because it isn’t in fact a Depressant. Furthermore, Serotonin isn’t listed in either HSC 11054 or 11055 as a “controlled substance”; it isn’t illegal to have it in your system in general. Thus, since it isn’t actually unlawful to have Serotonin in his system, Doug shouldn’t be convicted under HSC 11550.

Disturbing The Peace

Disturbing The Peace (CPC 415) occurs in California whenever anyone unlawfully fights or challenges another person to fight in public, intentionally disturbs another person with unreasonable noise, or uses offensive words likely to provoke violence in public. The charge is related to Public Intoxication because the crimes can involve similar objectionable public behavior.

If you’re convicted of Disturbing The Peace, the penalty may be:

  • A term in the county jail of up to 90 (ninety) days; OR,
  • A fine of up to $400 (four hundred dollars); OR,
  • Both a fine and imprisonment.

Note: Prosecutors will sometimes use a Disturbing The Peace charge in an effort to get a defendant to plead to some kind of offense.

California Criminal Jury Instructions – Disturbing The Peace

Note: While the statute creates a single crime, the prosecutor must prove different things to convict you under 415(1) (fighting), 415(2) (making unreasonable noise), or §415(3) (use of offensive words).

To convict you under 415(1), the prosecutor must prove the following beyond a reasonable doubt:

You unlawfully fought or challenged someone to fight. The prosecutor must also prove that you and the other person were in a public place or building when the fight occurred or the challenge was made.

Example: Defendant Diana doesn’t like the way her roommate, Victim Veronica, looks at Boyfriend, Diana’s significant other. She accosts Veronica outside their apartment one evening and challenges Veronica to a fight inside the apartment (because Diana doesn’t want to attract police attention). When inside, however, Veronica calls the police and reports Diana for Disturbing The Peace. Diana is arrested and charged under 415(1). Diana insists the fight wasn’t “public.” Should Diana be convicted?

Conclusion: Diana challenged Veronica to a fight in public – meaning that, irrespective of whether they actually fought in a public place, Diana violated the law as soon as she accosted Veronica outside the apartment so as to get her to fight inside the residence. Diana should be convicted under CPC 415(1).

What Can I Do If I’m Charged With Public Intoxication?

The State of California regards Public Intoxication as a serious offense. If you’re charged with Public Intoxication, it’s essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.

Remember, a professional criminal defense attorney may be able to:

  • Negotiate a lesser charge in a plea bargain;
  • Reduce your sentence;
  • Or even get charges dismissed completely.

For more information about Public Intoxication, Contact Orange County Criminal Defense, DUI & Personal Injury Attorney, Wais Azami at Azami Law and schedule your free consultation at 12832 Valley View St. Suite 203, Garden Grove, CA 92845. Mr. Wais Azami can be reached at (714) 321-9999 or you can send an Immediate Action Form for a 24/7 Service.

 

Drunk In Public, you need a Lawyer, Call Wais Azami.

 

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