Can the police question an intoxicated person whom they bring in to sober up?

Question: One of my buddies got picked up by the cops while we were out bar hopping. He was pretty loaded and they hauled him in for being drunk in public. While he was sobering up in the tank, the cops questioned him about whether he was on drugs and what drugs we had used that night. Can they do that? Could his statements be held against him (or us) and used at trial if he was still drunk during the interrogation?

Answer: The answer depends somewhat on what state you live in. Some states have a “treatment in lieu of punishment” approach to public intoxication. States that take this approach usually require that people taken in by police officers for public intoxication be placed in protective custody rather than arrested. The purpose of protective custody is two-fold:

  • it provides an opportunity for the individual taken into custody to receive treatment instead of a criminal penalty, and
  • it does not go on the person’s record as an arrest or criminal charge.

States with a protective custody option often have laws the limit the type of questioning and searches that police may conduct in connection with taking a person into such custody. Some states bar the police from using the protective custody as an opportunity to try to gather evidence of possible crimes or to find a reason to charge the person in protective custody with an actual crime. Other states allow the police to conduct only those interrogations and searches that would be necessary under the circumstances (in other words, to determine if the individual is in need of treatment, or to make sure the person is not armed). But the circumstances govern what an officer may legally do, and a police officer’s statement about what was necessary under the circumstances is usually given a lot of weight in court.

It sounds like your friend and your whole group of drinking buddies need to talk to lawyers with experience in the public intoxication laws in your state.

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