It seems that the cops frequently use “drunk in public” as an excuse to stop and harass or arrest people who are walking or who are just standing somewhere, who may or may not have been drinking, and who are in control of their faculties. One of the problems with the term “drunk in public,” is that lots of times, folks who have been drinking BELIEVE that because they have alcohol in their system and they are in public, they have violated “drunk in public” laws!! NOT TRUE
So, I wanted to share this clarification of the law. Knowing the truth of the “drunk in public” law may not mean the cops don’t wrongly harrass or arrest you, but if you have to go to court later, you will know what the prosecutors are required to prove, and what the cops were supposed to be looking for (i.e. falling over drunk, or aggressive to others), and whether the cops really were just abusing their “power”.
(** see below and Know Your Rights page about what to do when stopped by cops)
The criminal charge being of “drunk in public” actually requires more than a person being drunk and being in public: the legal standard usually requires that a person be so drunk as to be a danger to themselves or others.
California’s drunk in public law is typical of those around the country. California Penal Code Section 647 (f) provides that it is illegal to be in any public place under the influence of intoxicating liquor (or combination of liquor and drugs), in such 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 (or drugs), interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.
**During an encounter with the police, what will protect you is if you first ask, when the cop approaches, “Am I free to go?” If they don’t give you a straight answer, ask again (politely, but firm) “Am I free to go, or am I being detained?” If you are free to go, say, “I’m going now” and WALK AWAY. If you are told you cannot go, only say, “I chose to remain silent. I want to see a lawyer” Those words invoke and protect two important rights: 1) your right not to incriminate yourself, and 2) your right to have an attorney present when questioned, put in a line up, asked to sign something, etc.
You are not legally required to say a word to a cop. Once you invoke your rights by saying the magic words “I chose to remain silent. I want to see a lawyer.” Then, BE QUIET. If you slip up and say anything after that, say the magic words again- as many times as you need to, and BE QUIET.
IF the cop wants you to submit to a sobriety test, tell him your lawyer (whether you have one or not) told you not to submit to a FIELD SOBRIETY TEST, but you’d be willing to test at the station. Then say the magic words. “I chose to remain silent. I want to see a lawyer.” And say nothing else.
NEVER go along with the cop’s drunk/sobriety tests: don’t say your ABC’s backwards for the cop, don’t put one finger on your nose tilting your head back while on one foot, don’t walk a straight line on demand by the cop, don’t follow the cop’s finger with your eye when he tells you to. Be clear with words that you are “not going to do a field sobriety test”. If the cop arrests you, then wants you to do a breathalyzer or blood test, or urine test, you are required by law to do one of those.