In many states, police officers have a fair bit of leeway in deciding whether a person is intoxicated and, if so, whether the person should go to jail or a hospital or treatment center until no longer intoxicated.
Generally, a person is intoxicated if he or she is substantially impaired due to alcohol. Symptoms of intoxication include slurred speech, glassy eyes, and difficulty walking.
For more information on public intoxication laws generally, see Public Intoxication Laws and Penalties.
In states where public intoxication is a crime, a police officer can arrest a person who is intoxicated and take the person to jail (or, sometimes, to a hospital or treatment center) until the person is no longer intoxicated.
In other states, public intoxication is not treated as a crime, but as a public health problem. However, in most of these states, a police officer can still take a publicly intoxicated person into protective custody.
Although a person taken into protective custody is not charged with a crime or placed under arrest (and will not have a criminal record), in many states a police officer can still insist that an intoxicated person accompany the officer to jail or for medical treatment. Officers are sometimes even required to take a person who is drunk to jail or to a hospital or treatment center until the person is sober.
In a few states, such as Oklahoma, a police officer can take an intoxicated person into protective custody only after the person gives consent. However, if the person does not consent to be taken into protective custody, an officer in Oklahoma can arrest the person and take the person to jail.
(Okla. Stat. tit. 43A, § 3-428.)
In other states, while people who are intoxicated can be taken into custody only with their consent, if people are incapacitated (too intoxicated to give consent and a threat to themselves or others), then officers can take them into custody until they no longer pose a danger to anyone.
But states requiring consent are the exception. In most of the country, police officers are not required to obtain an intoxicated person’s consent before taking the person into protective custody.
If you are stopped by a police officer while you are intoxicated, you should cooperate with the officer if possible. If the officer says that you need to go to jail or to a hospital to sober up, it is worth asking whether you could call a friend to come get you or go home instead. However, in most situations, the police officer (not you) gets to decide the safest place for you while you are intoxicated.
If you are arrested for public intoxication or another crime involving alcohol, you should contact a criminal defense attorney. An experienced attorney can tell you the laws in your state and what to expect in court. With an attorney’s help, you can hopefully achieve the best possible outcome in your case.