In California, a person who appears in public while intoxicated from alcohol or drugs may be arrested and charged with the crime of disorderly conduct. Under some circumstances, an intoxicated person in public may avoid arrest and instead be placed in protective custody and taken to a treatment facility.
The disorderly conduct statute defines a number of ways in which a person can commit the crime of disorderly conduct. One such way involves people who appear in public while intoxicated. A person who appears in a public place while under the influence of alcohol, drugs, toluene (a solvent abused as an inhalant), or a combination of any of these substances is guilty of disorderly conduct if, because of the intoxication, the person:
- is unable to exercise care for the person’s own safety or safety of others, or
- interferes, obstructs, or prevents the use of a street, sidewalk, or any other public thoroughfare.
Disorderly conduct is a misdemeanor, punishable by up to six months in jail and a $1,000 fine.
(Cal. Penal Code §§ 19, 647)
The definition of public place is limited to places that are open to the public; it does not include non-public places that are merely open to public view. For example, a city park qualifies as a public place because any member of the public may enter the park. The backyard of a private home adjacent to the city park does not qualify as a public place because although the backyard may be viewable to people in the park, the backyard is not open to members of the public.
(In re Koehne, 59 Cal. 2d 646 (1963); 17 Cal. Jur. 3d Criminal Law: Crimes Against Admin of Justice § 719)
A person charged with disorderly conduct may challenge the prosecutor’s case in several ways. A defendant may introduce evidence that undermines one or more of the elements of the crime that the prosecutor is required to prove. For example, a defendant might introduce evidence that calls into question whether the defendant was intoxicated when arrested in public, or was in a public place when arrested for being intoxicated. Or, a defendant might admit to being drunk while in public but challenge the prosecutor’s claim that the defendant was unable to act in a safe manner (or was interfering with the use of a public thoroughfare). A defendant may contest more than one of the elements of the crime.
An intoxicated person who appears in public in violation of the disorderly conduct statute may nonetheless avoid arrest when encountering law enforcement authorities. The law requires a peace officer to take into protective custody an intoxicated person who is in violation of the disorderly conduct statute, as long as the officer is reasonably able to do so. The officer may use the same amount of force in taking a person into protective custody that is permissible for the officer to use in making a warrantless arrest of a person for misdemeanor. Upon taking the person into protective custody, the officer transports the intoxicated individual to a facility for a 72-hour treatment and evaluation.
A person placed into protective custody cannot be prosecuted for any crime based on the facts that made protective custody necessary. The law’s protective custody provisions do not apply where:
- a person is under the influence of a drug or a combination of drugs and alcohol
- a person is believed to have committed a felony or misdemeanor in addition to disorderly conduct, or
- the peace officer reasonably believes the intoxicated person will attempt to escape or will be unreasonably difficult for medical personnel to control.
(Cal. Penal Code § 647)
Contact An Attorney
If you are charged with disorderly conduct in California, you should contact an attorney. A conviction for disorderly conduct can result in a fine and even jail time. An attorney can evaluate strengths and weaknesses in your case and advise you of any defenses that you may have. An attorney can seek a dismissal of your case or negotiate a favorable plea deal, and having an attorney is essential to protecting your rights and advocating your innocence if you decide to take your case to trial.