Louisiana Criminal Defense Topics: I’m Drunk, and I Appear in Public in an Intoxicated Condition. Have I Committed a Crime?
some Author: Attorney Philip B. Adams
Consider the hypothetical fact pattern that follows. You and a few friends have gone to the local bar to have a few drinks. A few hours later after “getting hammered” to unwind from a long day at work, you and your friends leave the bar and proceed to walk along the sidewalk outside the bar. You are undoubtedly drunk at this point but not creating a scene or disturbing anyone. Many people have probably been in this type of situation. However, most people probably have not experienced what happens next. Unexpectedly, after walking about fifty feet, you find yourself stopped by an overly eager police officer. Upon making contact with you, he immediately observes that you appear to be in an intoxicated condition. He proceeds to ask you questions. You slur your words. Your eyes are red and glassy. You display some symptoms of intoxication. Within about a minute, the overly eager police officer slaps handcuffs on you and tells you that you are under arrest for disturbing the peace for appearing in an intoxicated condition. Befuddled, you cooperate with the police officer, and he escorts you to his police unit to transport you to the local jail. Was your arrest by the police officer lawful? Did you actually commit a crime that warranted an arrest?
To answer the preceding questions, one must first look at the language of the law under which you were arrested. Any crime must be defined in legal language and contains what are referred to as “elements.” Each of these elements must be proved beyond a reasonable doubt by the prosecuting authority for you to be found guilty of the crime alleged. For example, if a crime contains elements A, B, C, and D, but the prosecuting authority fails to prove element D, you are found not guilty because the prosecuting authority failed to prove the necessary element D. It does not matter if the prosecuting authority proved elements A, B, and C beyond a reasonable doubt. ALL elements of the enumerated crime must be satisfied.
In the hypothetical fact pattern presented at the beginning of this post, the police officer arrested you for disturbing the peace by public intoxication. This crime is contained in Louisiana Revised Statutes 14:103A(3), which reads as follows
“§103. Disturbing the peace
A. Disturbing the peace is the doing of any of the following in such manner as would foreseeably disturb or alarm the public:
… (3) Appearing in an intoxicated condition;
As the language of the crime states, for you to be convicted of the crime of disturbing the peace by public intoxication, the prosecuting authority must prove beyond a reasonable doubt three elements: (1) You in particular (2) appeared in an intoxicated condition (3) in a manner as would foreseeably disturb or alarm the public. Based on hypothetical fact pattern we discussed, elements “(1)” and “(2)” above can likely be proved beyond a reasonable doubt. However, can the prosecuting authority prove element “(3)” beyond a reasonable doubt as well? And as required to obtain a conviction? Based on the facts presented in the hypothetical fact pattern, no facts exist to indicate that you acted “in a manner as would foreseeably disturb or alarm the public” when you “appeared in an intoxicated condition.” For instance, you were not screaming and yelling while walking along the sidewalk in the presence of members of the public; you did not curse other members of the public while walking; you did not stumble onto any members of the public while walking; etc. Without facts to indicate that you acted “in a manner as would foreseeably disturb or alarm the public,” you cannot be convicted of disturbing the peace by public intoxication. Additionally, because the police officer arrested you without having any factual basis that rose to the level of probable cause to believe that you appeared not only in an intoxicated condition but also acted “in a manner as would foreseeably disturb or alarm the public,” your arrest for disturbing the peace by public intoxication was unlawful. In short, by just appearing in an intoxicated condition, you did not commit any crime justifying an arrest.
Existing case law supports the above analysis. Consider the following case: State v. Smiley, 99-0065 (La. App. 4 Cir. 3/3/99), 729 So. 2d 743, writ denied, 99-0914 (La. 5/14/99), 743 So. 2d 651. Smiley contains more egregious criminal action than occurred in the preceding hypothetical fact pattern; however, Smiley is still relevant because of the parallels between that case and the hypothetical case, as I will highlight in the discussion that follows.
In Smiley, the Fourth Circuit held that police officers had reasonable suspicion to stop a defendant in a traffic stop but lacked probable cause to arrest the defendant for Disturbing the Peace by Public Intoxication, resulting in a seizure of cocaine from the defendant following a pat-down search incident to arrest being suppressed and excluded from use as evidence due to the unlawful arrest. Id. The following is a synopsis of the facts of the case:
“The defendant was arrested on 18 September 1998. He was charged with the violation of LSA–R.S. 40:966(C), relative to possession of cocaine. On 11 January 1999 a motion to suppress the evidence was granted. The following facts were adduced at the motion:
In the early morning hours of 9 September 1998, two police officers were standing at the corner of St. Ann and Bourbon Streets when an unknown man approached them and reported that a man in a nearby truck had just tried to sell him drugs. As the officers were looking at the truck, they noticed the defendant and two other people leave the truck and stagger into a nearby bar. The unknown man identified Smiley as the man who tried to sell him drugs. The officers called for backup, and within five minutes four officers entered the bar and eventually located Smiley. Smiley agreed to accompany the officers outside. The officers noticed Smiley was having difficulty making his way out of the bar, staggering and weaving. One officer also got close to Smiley as he exited the bar and smelled alcohol on Smiley's breath. When they reached the sidewalk, the officer placed Smiley under arrest for public intoxication, purportedly to keep him from driving away in the truck. Smiley's companions must have also exited the bar because the officers conducted a patdown search of all three for the officers' safety. The officer testified that as one officer was pulling items out of Smiley's pants pocket, a bag of what was later found to be cocaine came out of his pocket.
The officer testified that when he approached Smiley in the bar, he asked Smiley to accompany him outside to talk because the bar was so noisy, and Smiley agreed to do so. He also testified that the bag seized from Smiley contained two-tenths of a gram of cocaine. He admitted neither he nor his fellow officers conducted a field sobriety test on Smiley.”
Id. at 744.
The State argued on appeal that the officers had probable cause to arrest the defendant for public intoxication, evidenced by his inability to walk and the smell of alcohol when he left the bar in compliance with the request of law enforcement to do so. Id. The Fourth Circuit analyzed the facts as follows:
"Here, the officers requested that the defendant leave the bar with them to talk to them in a less noisy atmosphere. The officer testified he merely requested that they relocate outside, and the defendant willingly agreed to do so. There was no evidence presented to dispute the voluntariness of the defendant's agreement to accompany the officers outside, other than perhaps the specter of four officers converging on the defendant and his companions and asking them to step outside. Nor is there any indication that the trial court did not believe the officers' testimony. The defendant was not under arrest at the time he agreed to accompany them outside.
While they were exiting the bar, the officers noticed the defendant was again staggering. In addition, the officer testified he could smell alcohol on the defendant's breath. The officer testified that at that point, they decided to arrest him for “public intoxication” to keep him from reentering his truck and driving away while under the influence. The officer admitted, however, that he and his companions did not administer any field sobriety tests prior to arresting the defendant.
It is unclear under exactly what provision the defendant was arrested at that point. The only statute which could possibly apply would be LSA–R.S. 14:103, the disturbing the peace statute. Subpart A provides in part: “Disturbing the peace is the doing of any of the following in such a manner as would foreseeably disturb or alarm the public: ... (3) Appearing in an intoxicated condition.” Here, there was nothing in the officer's testimony which should have led him to believe that the defendant's staggering would disturb or alarm the public. A more analogous provision could be §54–405 of the New Orleans Municipal Code, which provides: “It is unlawful for any person to appear in a public place manifestly under the influence of alcohol, narcotics or other drugs, not therapeutically administered, to the degree that he may endanger himself or other persons or property.” However, again there was nothing in the officer's testimony which indicated the defendant's actions at the time he was leaving the bar would endanger the public. The officer testified he arrested the defendant to keep him from entering his truck and driving while intoxicated. However, the officers did not know that the defendant would be leaving anytime soon or that if he were leaving that he would be driving his truck, given the fact that he had two companions with him who could possibly drive, and the officer gave no indication of their condition. Therefore, at the time the officers placed the defendant under arrest, there was no probable cause to arrest him. Thus, the subsequent search which produced the cocaine could not be validated as a search incident to his arrest.”
Id. at 746.
As you can see from Smiley, the parallels of that case are similar in some ways to the hypothetical fact pattern. In fact, Smiley involved worse facts than the hypothetical case, and yet the Fourth Circuit still held that there was no probable cause to make an arrest for the crime of Disturbing the Peace by Public Intoxication since there was no proof produced at the motion to suppress hearing that indicated that the defendant acted in a manner that “would foreseeably disturb or alarm the public.” Simply “appearing in an intoxicated condition” only satisfies one element of the crime of Disturbing the Peace by Public Intoxication; the prosecuting authority is also required to show that the defendant acted in a manner that “would foreseeably disturb or alarm the public.” If the Fourth Circuit felt that in Smiley “staggering” and “weaving” by a man walking out of a bar and smelling of alcohol did not constitute sufficient proof of a man acting in a manner that “would foreseeably disturb or alarm the public,” it is even less likely that in the hypothetical case enough facts existed for you to even be arrested for the crime of Disturbing the Peace by Public Intoxication.
Unfortunately, some law enforcement officers may ignore the element of “foreseeably disturb or alarm the public” and throw handcuffs on people simply because they “appear in an intoxicated condition.” Being arrested under such a circumstance might be unlawful. If you or someone you know gets arrested for disturbing the peace by public intoxication, you may have a valid defense to the charged crime under such circumstanes. Don’t let a night meant to be relaxing turn into a charge that potentially results in a conviction because you don’t know that you may have a competent defense. Know your rights.
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