Can I get a public drunkenness citation because I walked away from the police?

Question

I was outside my home with loud music playing. A neighbor called the police. I had consumed 2 glasses of wine within the hour they arrived. They questioned me about where I had been and what I'd been doing that evening. My husband came outside the house. Then I saw the breathalyzer come out of the police car. I looked at the officer and said "come on, please no?" Then my husband said "don't make her do that". I had been sober for 8 years prior to that week and had received 2 DUI’s before I got sober. The officer started having a conversation with my husband about the noise and I was so freaked out and upset so I walked into the house. They told my husband they were giving me a public drunkenness citation because I walked away from them. But they never tried to stop me. What does this mean?

George Derieg · Answer

It means you need to fight this case. As I understand it, you were on the sidewalk, discussed some issues with the police, and walked away when you were done with the conversation. In order for a district attorney to prove you were drunk in public, they must prove you were "so intoxicated you could not care for yourself or your safety". This is obviously not the case here, and the police were just making empty threats.  If you actually are charged with being drunk in public, contact a local attorney immediately and fight this case.

Michael J. Breczinski · Answer

It means you should get an attorney.  They may not have enough proof for the charge without the breath test results.

Austin Hirschhorn · Answer

It means that you have to defend a citation for public drunkenness.  Because no preliminary breath test was taken it is my opinion that the police have a big challenge in proving that you were drunk.  I don't believe that the police would have the right to give you a preliminary breath test because the implied consent laws only apply to driving offenses.  You obviously don't have a good relationship with your neighbors if they called the police for a noise problem.  Did they ask you to turn down the noise before they called?  You should hire an experienced and capable lawyer to defend you.

Caleb Langsdale · Answer

The police can (and often do) give people citations for whatever they feel is appropriate.  However, before you are formally charged, a screening prosecutor looks at the police evidence and makes a determination of whether to formally charge the person with the alleged charge.  If this case is formally charged, it sounds like you have some factual defenses.  One of which is whether you were in "public" or on your private property.

Clayton Lockhart · Answer

If you were at your home and in your yard, not on the public street, then you cannot be convicted on a public drunkenness charge.  Reason for that is because your home (and yard) is considered private property and not public property and therefore you're allowed to consume alcohol while being on your own property.

John Brennan · Answer

This sounds tragic. I will need more facts before rendering an opinion.

Mark R. Thiessen · Answer

If they didn't that night you are probably in the clear.  It's very rare for them to come back and give you a PI.  PI is being a danger to yourself and others and obviously you weren't dangerous.  So, if charged, hire a good attorney and fight it.

Eric Sterkenburg · Answer

If you are not under arrest and are only talking with the police you have the right to terminate the questioning and walk away. The police then have to charge you and arrest you to keep questioning you. If the police say that you were under detention and did not read you your rights then your statements to them and or your answers to the questions cannot be used in court.

Arthur Aiken · Answer

Merely walking away from the police does not constitute public drunkenness.

William Spern · Answer

Public drunkenness is a misdemeanor. Most like likely you will be able to pleas to a lesser charge and pay a fine. If the police do not have a breathalyzer result, it will be there word based on their observation vs. your denial. My guess is that a prosecutor worth his/her salt will a lesser charge, if there is a charge at all.  The fact that you were on your property may well be in your favor. Given the loud music, that is what you'll probably plea to.

Larry Dunn · Answer

You can not be convicted of public drunkenness for walking away from   police. You can only be convicted if there is sufficient evidence that you were   drunk. In the situation you describe, there is no legal requirement to  submit to  a breath test. The officers may testify that you displayed signs of  intoxication  in order to support the charge. You, your husband and any other  witnesses can  testify as to the amount of alcohol you consumed.

Michael Nichols · Answer

They can charge you but it does not sound like the facts fit. I would contact an attorney immediately.

Dean Valente · Answer

Sounds like pure intimidation on the police officers' part.  1st explain to me how you can get a public intox charge while on your own property?  Next, the officers were probably not paying attention when you walked into your house and once you did that they could not pursue or arrest even if they wanted to.  Unless there is some local ordinace prohibiting being intox in your own home, the best they can do is disturbing the peace for loud music

Michael Palumbo · Answer

You never have to give a breath sample you don't have to beg just refuse. Unless a ticket was personal served on you then it is invalid. You need to retain counsel. Oh, and you are allowed to drink in your home.

Philip Hache · Answer

It means you should fight the charge!  There should not be a misdemeanor conviction based on what you wrote.

Jeff Yeh · Answer

Yes you can. Now the next step is to find a lawyer to get this relatively minor charge dismissed.

Francis Cowhig · Answer

From what you wrote, I do not believe that you will be charged with public intoxication.  It is not the police who will decide to charge you.  Only the District Attorney can do that and they will decide what, if anything, you will charged with.  If you have a court date, I strongly suggest that you contact an experienced criminal law attorney for a face-to-face consultation and give him/her all of the facts surrounding your case.  He/she would then be in a better position to analyze you case and advise you of your options.

Stephen Freeborn · Answer

If you were outside your home, and did not leave your property, the charge is suspect. An officer cannot force you to take any breath test, especially if it is non driving related.  If charges are filed, I suggest that you retain an attorney.

Nathaniel Shafer · Answer

You can't get a drunkenness citation for walking away. The prosecution will have to prove that you were making an unreasonable disturbance, and that it was caused by you being intoxicated. Hire a talented attorney and you might successfully fight the charge.

Brian Wanerman · Answer

In California, for you to be convicted of public drunkenness (penal code section 647(f)), the prosecution must prove beyond a reasonable doubt all of the following:  1) You were under the influence of an intoxicating substance/substances 2) You were located in a public place 3) You were unable to exercise care for your own safety OR you were obstructing the use of any street, sidewalk or public way.  Based on your description of events, it doesn't sound like the prosecution will be able to prove the third element. Additionally, their attempted use of a breathalyzer is strange since they don't need your blood alcohol content to prove element 1.  It sounds like the police were trying to intimidate you.

Gregory Crain · Answer

No, but because you were intoxicated in public.

Gary Russell · Answer

If you were on your private property, you were not in "public" and could not be successfully prosecuted for such a charge.

Jared Altman · Answer

I think you might win this one.

Steven D. Dunnings · Answer

You are young and foolish and need to know you do not mess with police officers....they are the ones with the badges and the guns.

Terry Nelson · Answer

It means they charged you based upon their observations.  You can get a public drunkenness citation if they think you were drunk in public.  Walking away could get you a resisting arrest charge as well.  Had you tested as they wanted, you might not have been charged when the results showed limited blood alcohol.

Bernal Ojeda · Answer

Sounds like you have a defense. How did the officer know yu had been drinking? If thay can't prove it then you win.

Timothy Klisz · Answer

You need an attorney and you might have to try the case.  These are  quite grey area cases.

Michael Garber · Answer

If they gave you a breath test you could be charged if you were over the limit. Just walking away without the breath test is perfectly legal if you weren't under arrest.

Dennis P. Mikko · Answer

It means that the police will write a report and forward it to the prosecuting attorney requesting charges.  It will be up to the prosecuting attorney as to whether any charges are filed.

Joseph Dane · Answer

In order to convict you for public intoxication, they would have to prove that you were so intoxicated that you were unable to care for your own safety or the safety of others.  From what you wrote, it sounds as though they tried to bluff you and they backed off.  If they actually file charges on you in court, you'll need a lawyer, but this sounds like a very defensible case.    Alternatively, you may have to worry about a charge of Penal Code 148.9 - resisting or delaying an officer.  If you were lawfully detained for investigation and walked away and/or otherwise delayed their investigation, this charge could come into play.  Again - you'd need a lawyer to defend you.  I'd suggest you start researching local criminal defense attorneys so you're ready.  If you have a citation with a court date, don't wait until the last minute.  Often, a local attorney can make some calls and find out what the status of your case is.

Russell Pietryga · Answer

Maybe.  In Utah, public intoxication is: When a person(i.e., you) is under the influence of alcohol, . . ., to degree that the person may endanger themselves or another person, in a public place or in a private place(i.e., your home) where the person unreasonably disturbs other people(i.e., neighbors). See, Utah Code 76-9-701.  From the facts it appears that the city, if they decide to charge you, will have a difficult problem convicting you beyond a reasonable doubt.  First, it does not appear that you endangered yourself or anybody else. Second, it does not appear that you unreasonably disturbed anybody.  Wherefore, you are innocent of public intoxication.  In short, waking away from a peace officer does not meet the elements of public intoxication.  Hope this helps.

Steven Alpers · Answer

This does not seem like a case that will be a problem for you. Public drunkeness requires you be unable to care for yourself. Going into your house seems to have taken care of that issue.

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Can I get a public drunkenness citation because I walked away from the police?

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