Just being drunk in public in Tennessee is not a crime, as long as you can hold your Jack Daniels. But, before you hit Lynchburg for some of that hard lemonade, you would be wise to read this article because you can still be picked up for intoxication although you may be offered treatment in lieu of jail.
This article is about public intoxication itself. For information about driving while intoxicated, DUI: Laws, Penalties & Sentencing.
For information on public intoxication generally, see Public Intoxication Laws and Penalties.
In 1990, Tennessee became one of several states to adopt a “treatment over punishment” approach to public intoxication. While the state does make it a misdemeanor for a person to be so intoxicated in public that he endangers himself or others, its laws promote medical intervention over criminal penalties when appropriate. This approach involves a continuum of responses to substance abuse and addiction, ranging from voluntary treatment and protective custody to criminal penalties. Tennessee barred its cities and counties from criminalizing intoxication itself (although the state did retain its laws against drunk driving and related crimes). (Tenn. Code Ann. § 33-10-203.)
In Tennessee, a person may be charged with public intoxication if he or she appears in public under the influence of alcohol or a controlled substance to the degree that the intoxicated person:
Public intoxication is a misdemeanor crime in Tennessee. (Tenn. Code Ann. § 39-17-10.)
In general, Tennessee law defines a “public place” as one where the general public has a right of access. Interestingly, Tennessee courts consider a person who is sitting in a car on a public road to be publicly intoxicated if the person is a danger to self, others, property, or unreasonably annoying others in the vicinity.
A person who is staggering alone down a public alley could be arrested in Tennessee for public intoxication because the police could reasonably believe that the person’s intoxication presented a danger to himself due to the risk of falling.
While Tennessee law does not define the term “unreasonably annoy,” Tennessee courts have ruled that a person may unreasonably annoy others even if his conduct is not indecent, offensive, or disgusting. But the conduct has to actually annoy another person in public. It is not enough that the intoxicated person could have annoyed others.
Tennessee’s treatment approach to addiction led to the passage of laws that require police officers to take intoxicated individuals (who are not otherwise breaking the law) into protective custody, rather than arrest them; and to present them promptly to a judicial officer who must assign them to treatment in an approved facility if:
(Tenn. Code Ann. § 33-10-202.)
If the person taken into custody does not want treatment, or is found not to be in need of treatment, he or she must be immediately released. And, when the administrator of the facility, on the recommendation of a health care professional, determines that the grounds for the commitment no longer exist, the person must be immediately released. (Tenn. Code Ann. § 33-10-407.)
The protective custody/treatment option is only available in counties with approved treatment facilities. Where no such facility is available or where the person taken into custody refuses treatment, she may be charged with the misdemeanor of public intoxication and incarcerated.
Protective custody rather than arrest is a key element of the treatment model. As a result, Tennessee law mandates that there be no record indicating that an intoxicated person was arrested or charged with a crime. (Tenn. Code Ann. § 33-10-407.)
The law also limits the type of search that officers can conduct. While the law does not prohibit a search, it does require that any warrantless search undertaken by police officers when taking a person into protective custody be “strictly limited by the circumstances justifying the search.” (Tenn. Code Ann. § 33-10-407.)
This language leaves a lot of room for interpretation by both police officers and courts. Officers will run a check for warrants on the individual taken into protective custody. A pat-down search for weapons may be allowed for officer safety; however, bringing criminal charges based on the discovery of evidence of a crime (such as illegal drugs) during a protective custody search would violate at least the spirit of Tennessee’s law.
Several defenses may be raised to a charge of public intoxication in Tennessee. Some of the various defenses are discussed below.
A Tennessee court overturned the public intoxication conviction of a man who was arrested for arguing loudly outside his own house after midnight, in part because the man was in the proximity of his home and no one else was present. Although he was technically outside his private space, he was not “in public” because no one else was present and his conduct did not affect anyone else.
Where a peacefully intoxicated person, who is conscious and coherent, passes the time staring at the stars from a park bench, she is not publicly intoxicated under Tennessee law. A Memphis police officer described in court a man he had arrested on a public intoxication charge as “obviously intoxicated in public” with “glassy eyes and slurred speech.” Although the man had admitted to consuming several alcoholic beverages, he won a reversal of his conviction because a videotape showed that he had a normal gait, did not slur his words, did not have glassy eyes, and did not otherwise appear drunk. Merely being drunk, but in control and posing no danger to others, is not against the law in Tennessee.
In the case involving the man arguing loudly outside his own house, the court also found that, because the prosecutor did not present evidence that the man had actually annoyed anyone else in the vicinity, the charge could not stand. The possibility that someone might have heard him and been annoyed was not sufficient to support the charge.
Of course, this case arose from a charge that the individual was publicly intoxicated to the degree that he unreasonably annoyed others. Where a person is so intoxicated that he may create a danger to himself or others, he could be convicted of public intoxication even if no one was annoyed.
Public intoxication is a misdemeanor crime in Tennessee. The possible penalty for the crime is up to 30 days in jail, a fine of up to $50, or both. As noted above, in counties where treatment facilities are available, an individual taken into custody for public intoxication must be offered treatment with no record of arrest.
Tennessee’s treatment approach to public intoxication may not be available in all counties in the state. A conviction of public intoxication goes on one’s record and is potentially available to employers, insurers, and others. As with any criminal charge, it is wise to consult an attorney experienced in laws in your area to protect your rights and determine your options.