By FindLaw Staff | Legally reviewed by John Mascolo, Esq. | Last reviewed August 30, 2023
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Public intoxication, also called public drunkenness, is a misdemeanor offense. It occurs when people are visibly drunk or under the influence of drugs in public. These laws exist to discourage people from disturbing others in public. They also give law enforcement officers a reason to remove people from public spaces who may be a threat to their own safety or the safety of others. Unlike a DUI offense, which may carry mandatory minimum penalties, public intoxication will often be a minor misdemeanor crime.
This article includes information about public intoxication laws and charges associated with them. It also goes over penalties, alternative sentences, and defenses that may be available to the accused.
State laws against public intoxication may vary in title and their placement in the criminal code. Some states include this crime in the disorderly conduct statute. Other states may see it as part of the law against disturbing the peace. No matter the exact name, by definition, a public intoxication charge usually has three key elements. All these elements must exist to support a criminal charge. Specifically, the state must show that a defendant:
Besides establishing that the suspect was under the influence, many states also require prosecutors to prove that the suspect seemed so out of control that they did not appear to exercise care for themselves or others. This may include presenting a threat to their own safety or the safety of others.
For example, a person who walks out of a Birmingham bar in a calm and quiet manner could stroll down the sidewalk with little worry. Yet if that person instead draws attention to themselves with slurred speech and offensive conduct that annoys others, they may face charges under Alabama's public intoxication statute.
The behavior and demeanor of the suspect will be a key component of the charges. A person who causes disruption and bothers others is more likely to attract the attention of the police. In Florida, for example, a person can face the charge of disorderly intoxication. The offense is a second-degree misdemeanor.
Another key element of any public intoxication charge is that the offender must actually be in public. What makes a place public? There is no single legal definition of a "public place," and not all states define it. For example, a person's vehicle is not typically considered "private" when parked alongside a roadway or in a public parking area. Determining the public or private nature of the location where the incident occurred becomes a common issue in public intoxication cases.
Texas is one of those states that provides some definition of "public place" in its public intoxication statute. The law designates "premises licensed or permitted under the Alcoholic Beverage Code" as public places. Thus, about every bar in Texas can qualify. If someone summons the police, a disruptive customer may face criminal charges.
The vast majority of states prohibit drunk and disorderly behavior. Those that have criminal offenses classify the crime as a misdemeanor. In Texas, public intoxication is a class C misdemeanor (no jail time; up to $250 fine).
In Ohio, the offense can be a minor misdemeanor (no jail time; fine of up to $150). The court, in its discretion, can order community service instead of the fine. If the offender persists in disorderly conduct after being warned by police or has a criminal record with three or more prior convictions, the penalties can increase. The offense may become a fourth-degree misdemeanor (up to 30 days in county jail and a fine of $250).
Some states and local jurisdictions provide alternatives within the law to traditional arrest and jail time or fines upon conviction. In California, the public intoxication offense falls within the misdemeanor crime of disorderly conduct under California Penal Code Section 647(f). The offense includes any of the following elements:
If charged with disorderly conduct by public intoxication, an offender can face county jail time or fines. However, a section of the California statute provides for an alternative disposition: that a "peace officer, if reasonably able to do so, shall place the person in civil protective custody." This provision applies to those intoxicated by alcohol but not drugs or controlled substances. Instead, the police transport the person to a 72-hour treatment facility.
The alternative is not available in all cases. For example, when police charge a suspect with additional offenses, they cannot use the civil custody option. They also cannot use it if they believe the person will attempt to escape or cause problems for medical treatment staff.
In Los Angeles and many other California cities, the city attorney's office brings misdemeanor charges to trial. The county district attorney (DA) has jurisdiction over felony offenses but can also pursue misdemeanors in areas without a city or local prosecutor.
In 2020, the DA for Los Angeles County declared a special policy related to misdemeanor offenses. His directive opposed the pursuit of misdemeanor offenses like public intoxication. The DA's office took the view that the prosecution of misdemeanor crimes has little social value or deterrent effect. The policy has stirred controversy. It has also led to a downturn in misdemeanor arrests in areas under the DA's authority.
State laws that address intoxication can bring scrutiny if they appear to prohibit the status of being an addict. The U.S. Supreme Court determined in Robinson v. California (1962) that the government cannot outlaw the status of being an addict. The court found that such laws violate the Eighth Amendment prohibition on cruel and unusual punishments.
In Powell v. Texas (1968), the court upheld a public intoxication conviction. It rejected a broader interpretation of Robinson. In reviewing the Texas statute and the facts of the case, the court concluded that Leroy Powell's punishment did not come from the status of being drunk. The law prohibited being drunk in a public place. The defense argued that Powell could not avoid compulsions to drink or confine his behavior to a private location. The court disagreed and cited a lack of conclusive medical evidence.
Those accused of public intoxication may raise other legal defenses. This becomes more likely with the assistance of a criminal defense attorney. Read on for examples.
A common defense to charges of being drunk and disorderly in public is that the defendant was not actually intoxicated. This defense often focuses on the absence or lack of reliability in chemical tests performed by police. In jurisdictions where the state must prove "voluntary intoxication," the defendant may claim they made a mistake with prescribed medication. They may suggest another person slipped something into their drink.
If contesting intoxication, a defendant may outline an alternative explanation for loud behavior. They could attribute it to some other cause. This might involve enthusiasm over a promotion or excitement over a sporting event. The prosecution must prove the state of intoxication. In other words, the burden of proving this element of the crime rests on the prosecutor.
Some communities do not have laws against public intoxication. States including Minnesota, Montana, Nevada, and Wisconsin do not criminalize being drunk in public. Some states' laws even declare that public intoxication is not a crime. This would provide a strong defense to a public intoxication charge.
In other places, state law is silent on the issue. Individual cities and counties may have ordinances that outlaw public intoxication. Missouri has a law that prohibits cities from punishing public intoxication. Yet another Missouri statute outlaws drunkenness in schools, churches, and courthouses.
Wisconsin provides a "state policy" against prosecuting someone due to intoxication alone. Some Wisconsin cities have ordinances against public intoxication, and some do not. This can lead to confusion. For example, a person facing public intoxication charges in La Crosse might claim they were not in that city. This claim would be unusual. Yet the adjacent city of Onalaska has no public intoxication law.
The state needs evidence that the defendant was in a public place to prove public intoxication. Some gray areas exist along the public-private spectrum. There is debate about hotel hallways, for example, or a shared parking lot in a private, gated apartment community.
A defense attorney can argue that these locations are actually private and may defeat a charge — or at least create the basis for an appeal. Also, the defense may claim that the police ordered the defendant to come out of a private area and into a public place. This may weaken the state's claims about the defendant's intent.
If you are facing public intoxication or drunk and disorderly charges, you have a right to defend yourself and fight the charges in court. However, you should also consider getting legal advice. Some of the legal factors that a public intoxication defense attorney can review with you include:
Public intoxication convictions do not typically result in long jail sentences, but damage to your reputation could be difficult to mend. It could follow you for years to come. The assistance of a qualified criminal defense lawyer can help in eliminating or minimizing the impact of these charges.
If a conviction is already on your record, you may want to consider the possibility of expungement. You can reach out to a local criminal defense attorney to protect your rights.
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