Public Intoxication Laws and Penalties

Can being drunk in public get you arrested?

By , Attorney · Santa Clara University School of Law
Updated June 13, 2023

Laws punishing public intoxication (also known as "drunken or disorderly conduct") vary widely among states. The different approaches states have taken to regulating public intoxication reflect the various cultural viewpoints on the issue.

This article summarizes the various state approaches to, and common issues that come up with, public intoxication charges. It also explains the penalties or other consequences associated with the offense or incident, as well as the possible defenses that an individual may raise.

How States Address Public Intoxication

States tend to address public intoxication in one of three ways.

Public Intoxication as a Crime

Some states' laws reflect the feeling that because public intoxication disturbs the peace and harms society, it should be punished as a crime. In these states, public intoxication is often a misdemeanor, punishable by fines, jail time, probation, and community service. The offense might be punished under a statute specific to public intoxication or another crime, such as disorderly conduct. Some states now punish these acts as infractions or provide pretrial interventions that divert offenders to treatment.

Public Intoxication as a Public Health Issue

Other states' laws reflect the view that public intoxication, especially when it is chronic, is better addressed through treatment or other non-punitive measures. These laws provide for consequences that bypass the courts altogether, including sending the intoxicated individuals to a treatment facility or detox center until they are no longer intoxicated. Some states that take this approach specifically prohibit local municipalities from passing criminal ordinances against public intoxication.

Public Intoxication as a Local or Secondary Issue

Some states don't have any statewide public intoxication laws at all. In some of these states, however, cities or counties have passed local ordinances punishing such conduct. Even in places where no public intoxication laws exist, individuals who are intoxicated in public may still be arrested if they are engaging in other criminal conduct, such as fighting or vandalism.

What Is Public Intoxication?

In most states that punish public intoxication as a criminal offense, prosecutors must prove several elements in order to convict a person of the offense.

Intoxicated in Public

Public intoxication laws require that the defendant be in a public place, rather than a private residence or another area that is not open to the general public. Examples of public places include sidewalks, streets, stadiums, and parks. In some states, bars and restaurants are considered public places because they are open to the general public.

Additionally, some state public intoxication laws punish intoxication that occurs in areas where the defendant is on private property but without the permission of the owner, even though these areas are technically "private." For example, creating a disturbance while trespassing on another person's lawn may be the basis for a public intoxication charge.

Being Under the Influence of an Intoxicating Substance

Many public intoxication laws require that the defendant be under the influence of alcohol, illegal drugs, a controlled substance, or another intoxicant (including inhalants such as paint thinner or glue).

How the prosecution proves that one or a combination of the substances mentioned above accounts for the defendant's apparent intoxication is another matter. States rarely require proof by means of a chemical test, such as a blood alcohol test. Instead, the testimony of the arresting officer and any others present as to how the defendant behaved and appeared can be sufficient to enable the jury to conclude that the defendant was intoxicated. Some states don't even require that defendants actually be intoxicated but rather only appear to be.

Causing a Disturbance or Harm to Persons, Property, or Oneself

Most public intoxication laws require that the defendant created some kind of disturbance, such as injuring other persons or harming property, or posing a threat to his own safety. Generally, this element isn't too difficult to prove. In most states, the definition of "disturbance" is very broad—some states include actions such as blocking sidewalks or using offensive language. Further, if an officer believes that a person's intoxication is posing a threat to that person's own safety, he may be taken into custody and charged with this offense.

What Are the Penalties for Public Intoxication?

The consequences for those convicted of public intoxication will depend on how the state (or municipality) has classified the behavior—as a crime or public health issue.

Criminal Penalties for Public Intoxication

In most states with criminal penalties for public intoxication, the offense is a misdemeanor or an infraction.

Misdemeanors. Misdemeanors carry jail sentences of up to a year and fines ranging from $500 to $2,500. A first-time offender, though, would more likely be looking at pretrial diversion options, community service, or probation rather than jail time. In California, public intoxication is a misdemeanor. However, if the defendant is suspected of being under the influence of alcohol only, rather than illegal drugs, the law enforcement officer must bring the defendant to a "sobering facility," where he will remain for up to 72 hours. If the defendant is taken to a "sobering facility," no criminal charges will be brought based solely upon the defendant's intoxication.

Infractions. Infractions are fine-only offenses and are not punishable by jail time. Depending on the jurisdiction, an infraction might be referred to as a violation, summary offense, petty offense, or civil infraction. Fines might range from $100 to $500.

Public Health Response to Public Intoxication

Some states, such as Alaska, do not consider public intoxication a criminal offense but require law enforcement officers to take offenders to a treatment facility. Other states require that the law enforcement officer take an intoxicated person to the person's home or detain them until they are no longer intoxicated; these states prohibit officers from making an arrest record or any other record of the incident.

Potential Defenses to Public Intoxication Charges

There are several potential defenses to public intoxication charges. Most of these focus on showing that there is little or no evidence to support one or more of the elements of the offense, as explained above. Some common examples are explained below.

Not intoxicated. A defendant may argue that he was not intoxicated at the time of the arrest. But because juries and judges tend to believe the testimony of the arresting officer, this defense can be hard to substantiate unless the defendant has concrete evidence (such as a blood alcohol test) showing that he was not intoxicated.

No disturbance or harm. A defendant may also introduce evidence to show that he was not causing a disturbance or actual or potential harm to himself or others. For example, witnesses may be called to show that the defendant was not bothering anyone or anything.

Not a public place. Another potential defense is showing that the arrest was not made in a public place or that the defendant was involuntarily in a public place at the time of the arrest. For example, a defendant may not be ordered out of his home by a law enforcement officer and onto the sidewalk, and then arrested for public intoxication.

Prescription medication. Finally, defendants may argue that at the time of the arrest, they were under the influence of a medication taken as directed while under the care of a licensed physician. For example, if the defendant was under the influence of "laughing gas" from a recent dental procedure, he may have a valid defense.

Get Legal Help

If you are charged with violating a public intoxication law, even if the consequences are relatively mild, consider consulting with a criminal defense attorney who is familiar with how these cases are handled in your area. An experienced attorney can help you understand the charges against you, explain your options, discuss possible defenses you may raise, and protect your rights.

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