Penal Code 647(f) PC is known as California's "drunk in public" (or "public intoxication") law.
Despite what the common name of this law suggests, simply being drunk in a public place is not a crime. Instead, to violate California's "drunk in public" statute, you need to be so intoxicated that you:
If you are simply very drunk in a public place, but neither of the above things is true, you are not guilty of this offense...even if an aggressive police officer has tried to make you believe otherwise.
But here are some examples of behavior that can lead to drunk in public charges:
Drunk in public is a misdemeanor in California.2 If convicted, you may face up to six (6) months in county jail and/or a fine of up to one thousand dollars ($1,000).3
And even if the judge decides to go easy on you and sentence you only to
probation rather than jail time . . . a "drunk in public" conviction will still go on your permanent criminal record, where it can be seen by prospective employers and licensing agencies.
Therefore, it is well worth your time and effort to fight these charges.
Fortunately, there are a variety of legal defenses that a skilled California criminal defense lawyer could present on your behalf . . . in an effort to reduce or possibly even dismiss your Penal Code 647(f) PC charge.
Some of these defenses include:
In order to better understand how California's "drunk in public" law is prosecuted and—more importantly—defended, our California criminal defense attorneys will address the following:
If, after reading this article, you have additional questions, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on Legal Definition of a Misdemeanor in California Law; Misdemeanor (Summary) Probation in California; Common Legal Defenses to California Crimes; California Search and Seizure Laws; California "Motion to Suppress Evidence" Hearings Penal Code 1538.5 PC; California's Deferred Entry of Judgment ("Drug Diversion") Program Penal Code 1000 PC; Vehicle Code 23152 VC California's "Driving Under the Influence" (or "DUI") Law; California's "Under the Influence of a Controlled Substance" Law Health and Safety Code 11550 HS; and Penal Code 415 PC Disturbing the Peace.
The legal definition of the crime of "drunk in public" in California consists of three "elements of the crime." These are facts that a prosecutor must prove in order to get a conviction for this offense.
The elements of drunk in public/public intoxication are:
a. Unable to exercise care for your own or others' safety, OR
b. Interfering with, obstructing, or preventing the free use of a street, sidewalk, or other public path.4
So as you can see...while the phrase "drunk in public" sounds pretty straightforward...in fact the legal definition of this crime has nuances that make it rather technical.
Let's take a closer look at some of these elements in order to fully understand the legal definition of the offense of California public intoxication.
"Willfully" means deliberately or on purpose.5
This means that you need to have voluntarily ingested drugs and/or alcohol. If you did so only on accident, you are not guilty of being drunk in public under California law.
Example: Christine is always very careful about her alcohol intake because she knows she gets drunk easily. She meets her new boyfriend Adam for a drink at a neighborhood bar. Christine has one beer and then decides to switch to Coke.
The problem is that Adam is the one walking to the bar to get them more drinks, and he has decided he would like to get Christine drunk. So he brings her rum-and-Cokes instead. Christine drinks three rum-and-Cokes, all the while thinking that they are just Coke.
If Christine then engages in behavior that could lead to drunk in public charges...she cannot be found guilty of this crime, because she did not willfully get intoxicated.
For purposes of Penal Code 647(f) PC, a "public place" is defined as an area outside a home in which a stranger is free to walk.6
So obvious examples of a "public place" where the crime of public intoxication may be committed include
In addition, California courts have decided that the following less obvious places also qualify as "public places":
And it's important to note that it doesn't matter if any other members of the public are actually in the supposedly public place...or even if they are likely to go there. All that matters is that the place actually be open to the public.12
This means that you can be guilty of "drunk in public" for behavior that happens in, for example, a homeless encampment on the side of a busy highway.13
So what is a "private"—non-public—place where it is impossible to commit the crime of public intoxication? Examples include:
One other important thing to note is that you are not guilty of public drunkenness if the police find you intoxicated in a non-public place...and then either force you to go with them to a public place, or request that you go with them to a public place, where they then arrest you. (There have been actual instances of police doing this!) In this situation, you are not considered to have been intoxicated in a "public place."16
As we noted above, just being drunk in a public place does not warrant a drunk in public conviction. Instead, you need to be so intoxicated that your behavior is affected. One of the ways this can happen is if you are a safety risk to yourself or others.17
Example: Frank is outside a Los Angeles nightclub at 2 am trying to hail down a cab. An LAPD officer approaches and questions him. Frank reeks of alcohol and his face is flushed. But he's able to walk and answer the officer's questions . . . and nothing about his behavior threatens his safety or the safety of anyone else.
Meanwhile, Paul is outside the same nightclub, and is also very drunk and trying to hail a cab. But Paul, unlike Frank, is walking out into the middle of the street, into the path of oncoming traffic, to try to see if any cabs are approaching. As a result, numerous drivers are forced to slam on their brakes to avoid hitting him. Paul is stumbling as he walks and is visibly drunk.
Even though both Paul and Frank are both drunk, Paul's drunkenness is causing him to endanger his own safety and that of drivers on the street. Frank's behavior does not warrant a Los Angeles drunk in public arrest...but Paul may be guilty of that offense.
In addition to endangering your or other people's safety, the other kind of behavior that can lead to a legitimate charge under Penal Code 647(f) PC is blocking . . . or interfering with other people's use of . . . a street, sidewalk, or other public way.18
Example: Robert uses heroin with some friends in a park. He then lies down on a sidewalk on a busy commercial street and is unable to get up. People walking by are forced to step over him or go out of their way to walk around him. So Robert may be arrested for public drunkenness under Penal Code 647(f) PC.
Penal Code 647(f) PC, drunk in public, is a misdemeanor in California law.19 If convicted of this offense, you may face
And if you are convicted of "drunk in public" three (3) times within a twelve (12)-month period, you face a minimum of ninety (90) days in county jail. However, the court can suspend this penalty requirement if you instead spend sixty (60) days in an alcohol treatment and recovery program.21
As an alternative to filing criminal charges...California police may choose to take a person who has violated Penal Code 647(f) PC to an inebriation treatment facility—more casually known as a "drunk tank." The person may then be held there for treatment and observation for up to seventy-two (72) hours.22 Being detained in this way is known as "civil protective custody."
The good news about this "civil protective custody" option is that...if the police choose to take you to a treatment facility...the prosecutor is not permitted to later file criminal charges against you for drunk in public/public intoxication.23
The bad news is that many cities and towns in California don't have a "drunk tank" facility ...which means that criminal prosecution is inevitable if you are apprehended for drunk in public.
Also, the civil protective custody option is not available if you are under the influence of drugs rather than alcohol (or drugs as well as alcohol) . . . or if the police believe, in their "good faith" discretion, that you will try to escape from the facility or will be difficult to control there.24
A California criminal defense lawyer might take any of a number of approaches to fighting a Penal Code 647(f) PC "drunk in public" case. The following are some examples of common legal defenses that may be helpful in doing so.
If the police arrested you in a home, hotel room or other private place, there was no "public intoxication"...regardless of how drunk you may have been.25
As we discussed in Section 1 above, the definition of a "public place" under California law can get tricky. Because the front yard of someone's home is considered a public place26 . . . police might think that they can arrest someone for engaging in dangerous or disruptive behavior while drunk in a back yard. Similarly, police who want to put a stop to a disturbance in a hotel might try to arrest someone based on behavior that takes place inside a hotel room.
In cases like this, the defendant would not be guilty of drunk in public charges...because the behavior did not actually take place in a public place.
In order for you to be guilty of California drunk in public, prosecutors need to be able to show...beyond a reasonable doubt...both that you were willfully intoxicated in a public place and that you engaged in behavior that meets the legal definition of public intoxication.
In a striking number of cases, the evidence just isn't there. Police in some California cities frequently arrest people for "drunk in public" aggressively and irrationally...with no real basis.
To name just one example, in the city of San Jose, the abuses—including disproportionately arresting Hispanic people on these charges—were so bad that members of the community turned out to protest.27
As Pomona criminal defense attorney John Murray28 explains:
"There's a lot of public pressure for cops and prosecutors to crack down on so-called "quality of life" crimes. Often, overzealous cops will try to "clean up" certain parts of town by arresting people for public intoxication simply because they're buzzed in a public place. But Penal Code 647(f) requires more. It's my job to make sure that...unless my client was so drunk that he was a danger to himself or others...the charges get dismissed."
It's not uncommon for the police to violate a person's rights in investigating a "drunk in public" situation. If, for example, they
your criminal defense attorney can bring a California "motion to suppress evidence" in an effort to have the entire case dismissed.
Even if you are clearly guilty of the Penal Code 647(f) PC charge . . . if your arrest is for behavior you committed under the influence of illegal drugs (or a combination of drugs and alcohol), a good California criminal defense attorney can often negotiate a deferred entry of judgment...or "drug diversion"...program with the judge and prosecutor.29 This option requires that you have no prior drug crime ) convictions.30
Under this plan, you agree to perform some community service and/or attend a drug treatment program. If you successfully complete these requirements, your case is ultimately dismissed . . . and no criminal record is generated for most purposes.
There are a few other California offenses that are closely related to "drunk in public" charges. Below are examples of some of the most common.
Vehicle Code 23152 VC, California's "driving under the influence" (or "DUI") law, makes it a crime to drive a vehicle under the influence of alcohol and/or drugs.31 Unless you are a repeat offender, DUI is generally a misdemeanor .32
As we discussed above, you can be arrested for drunk in public for behavior that occurs inside a parked car.33 If this occurs...then prosecutors may try to prove by "circumstantial evidence" that you had been driving under the influence too.
Perhaps the keys were in the ignition...perhaps the engine was running...perhaps you had your foot on the brake...etc. In this case, you could be charged with both California DUI and California public intoxication.
a controlled substance or illegal drug.34
If you are arrested for Penal Code 647(f) PC (being under the influence in public)...and the police and prosecutors allege that you were under the influence of illegal drugs when you were arrested...you may also be charged with using and/or being under the influence of drugs .
Alternatively, if the prosecutor is unable to show that your behavior actually created a safety risk for yourself or someone else...they may end up charging you only under Health and Safety Code 11550 HS.
This offense is a misdemeanor and carries a minimum term of ninety (90) days in county jail.35
Penal Code 415 PC "disturbing the peace" may be charged if you
Disturbing the peace is often used as a plea bargaining tool for "drunk in public" charges. This means that . . . in many cases . . . a California criminal defense attorney may be able to get a Penal Code 647(f) PC charge reduced to a less serious "disturbing the peace" charge.
This can be a useful strategy because a Penal Code 415 PC charge
If you have additional questions about California's "drunk in public" law, or you would like to discuss your case confidentially with one of our criminal defense attorneys, we invite you to contact us at Shouse Law Group.
We have local criminal law offices in Los Angeles, San Diego, Riverside, Orange County, San Bernardino, Ventura, San Jose, the San Francisco Bay area, and several nearby cities to conveniently serve you.
For more information on Nevada's "public intoxication" laws, please see our page on Nevada's "public intoxication" laws.
1 Penal Code 647(f) PC – Disorderly conduct [Drunk in public]. ("Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor...(f) Who is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, controlled substance, or toluene, in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.")
2 See same, Drunk in public.
3 Penal Code 19 PC – Misdemeanor penalties. ("Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor [including "drunk in public"] is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.")
4 Judicial Council of California Criminal Jury Instructions ("CALCRIM") 2966 – Under the Influence in Public [Drunk in Public]. ("To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant was willfully under the influence of (alcohol[,]/ [and/or] a drug[,]/ [and/or] a controlled substance[,]/ [and/or] toluene); 2. When the defendant was under the influence, (he/she) was in a public place; AND <Alternative 3A—unable to care for self> [3. The defendant was unable to exercise care for (his/her) own safety [or the safety of others].] <Alternative 3B—obstructed public way> [3. Because the defendant was under the influence, (he/she) interfered with, obstructed, or prevented the free use of a street, sidewalk, or other public way.]")
5 See same, Under the Influence in Public [Drunk in Public]. ("Someone commits an act willfully when he or she does it willingly or on purpose.")
6 People v. Olson, (1971) 18 Cal.App.3d 592, 598. ("As to the area outside in the front of Mrs. Voisan's house, whether it be the driveway, lawn or front porch, it was a public place within the meaning of [California Penal Code] section 647, subdivision (f). From the nature of the tests, we may reasonably assume the officers gave them to defendant on a flat area probably on the sidewalk or street. In any event, the front area outside the house meets the definition of ‘public' for the purpose of section 647, subdivision (f) [California's drunk in public statute], as stated in In re Zorn, 59 Cal.2d 650, 30 Cal.Rptr. 811, 381 P.2d 635, holding that a barber shop is a ‘public place' under the statute: "‘Common to all or many; general; open to common use,"‘ and "‘Open to common, or general use, participation, enjoyment, etc.; as, a public place, tax, or meeting."‘ (P. 652, 30 Cal.Rptr. p. 812, 381 P.2d p. 636.) Inasmuch as defendant, a complete stranger to Mrs. Voisan, was able to walk through the outside area of her home to the front door without challenge, it can hardly be denied that the area is open to ‘common' or ‘general use.'")
7 In re Zorn, (1963) 59 Cal.2d 650, 652. (" There is likewise no merit in the contention that since petitioner was drunk in a barber shop, it was not a public place, for the reason that "public" has been defined as " 'Common to all or many; general; open to common use,' " and " 'Open to common, or general use, participation, enjoyment, etc.; as, a public place, tax, or meeting.' " . . . Clearly, therefore, under the foregoing definitions [for purposes of the drunk in public law] a barber shop is a public place.")
8 People v. Belanger, (1966) 243 Cal.App.2d 654, 657. ("A public place has been defined to be a place where the public has a right to go and to be, and includes public streets, roads, highways, and sidewalks ....")
9 People v. Belanger, endnote 8, above, at 657. ("Certainly, if appellant had been found in the state of intoxication indicated standing, walking, sitting or lying upon the street, it could not be contended that such conduct was not a violation of the [California drunk in public] statute. Does the automobile, in which appellant was sitting, create insulation so as to prevent his presence in a public place? We think not. California courts, although not having had the question specifically presented to them, have impliedly held that presence in a parked automobile, under the conditions specified in [California Penal Code] section 647, subdivision (f), is presence in a public place and constitutes a violation of said section.")
10 People v. Perez, (1976) 64 Cal.App.3d 297, 301. ("The hallway in this case is the kind of public place contemplated in the California and New York cases. There were no locked gates or doors to keep the public from entering. Hallways and stairways of multiple dwellings are open to delivery men, service men, solicitors, visitors and other strangers, whether those hallways are interior or exterior to the buildings, and are therefore public places within the meaning of [California Penal Code] section 647, subdivision (f). In other words, a ‘public place' within the meaning of this subdivision [regarding public intoxication] is a location readily accessible to all those who wish to go there rather than a place which the general public frequents.")
11 See People v. Olson, endnote 6, above.
12 California Jury Instructions – Criminal ("CALJIC") 16.431 – Public place, defined. ("The term "public place" means any place which is open to common or general use, participation and enjoyment by members of the public. [A person may be guilty of a crime of [drunk in public] if [he] [she] is in a public place in the condition described even if [he] [she] is not visible to public view.] [A public place is also a location that is readily accessible to all those who may wish to go there even though not a place that the general public also frequents.]")
13 People v. Kellogg, (2004) 119 Cal.App.4th 593, 596.
14 Reinert v. Superior Court, (1969) 2 Cal.App.3d 36, 42. ("We believe the officer moved precipitously [to arrest someone for drunk in public] without proper regard for the constitutional rights of an individual in the sanctuary of his own bed.")
15 In re R.K., (2008) 160 Cal.App.4th 1615, 1622. ("As such, the woodshed here was not a "public place" within the meaning of [Penal Code] section 647(f).")
16 See same, at 1623-24. ("In our view, the distinction between an intoxicated person who is found somewhere other than in a "public place" and who is forcibly removed by police to a "public place" and a similarly situated person who voluntarily acquiesces to go to a "public place" at the police's request is irrelevant in determining whether the person can be found in violation of section 647(f) [public intoxication statute]. Drawing such a distinction, as the People would have us do, would encourage people to defy legitimate requests or commands of law enforcement. We therefore hold that an intoxicated person who is found somewhere other than a "public place" (and it is not shown that the person has no right to be there) but who acquiesces in the police's request to accompany the officer to a "public place" cannot be found in violation of section 647(f) based solely on the person's presence in that "public place."")
17 CALCRIM 2966 – Under the Influence in Public [Drunk in Public], endnote 4, above.
18 See same, Under the Influence in Public [Drunk in Public], endnote 4, above.
19 Penal Code 647(f) PC – Drunk in public, endnote 1, above.
20 Penal Code 19 PC – Misdemeanor penalties, endnote 3, above.
21 Penal Code 647d -- Multiple violations of Penal Code 647(f) "Drunk in public". ("(b) In any accusatory pleading charging a violation of [Penal Code] subdivision (f) of Section 647 PC, if the defendant has been previously convicted two or more times of a violation of subdivision (f) of Section 647 PC within the previous 12 months, each such previous conviction shall be charged in the accusatory pleading. If two or more of the previous convictions are found to be true by the jury, upon a jury trial, or by the court, upon a court trial, or are admitted by the defendant, the defendant shall be imprisoned in the county jail for a period of not less than 90 days. The trial court may grant probation or suspend the execution of sentence imposed upon the defendant if the court, as a condition of the probation or suspension, orders the defendant to spend 60 days in an alcohol treatment and recovery program in a facility which, as a minimum, meets the standards described in the guidelines for alcoholic recovery home programs issued by the Division of Alcohol Programs of the Department of Alcohol and Drug Abuse.")
22 Penal Code 647(g) PC – Drunk in public; civil treatment facility. ("(g) When a person has violated subdivision (f), a peace officer, if he or she is reasonably able to do so, shall place the person, or cause him or her to be placed, in civil protective custody. The person shall be taken to a facility, designated pursuant to Section 5170 of the Welfare and Institutions Code, for the 72-hour treatment and evaluation of inebriates. A peace officer may place a person in civil protective custody with that kind and degree of force which would be lawful were he or she effecting an arrest for a misdemeanor without a warrant. No person who has been placed in civil protective custody shall thereafter be subject to any criminal prosecution or juvenile court proceeding based on the facts giving rise to this placement. This subdivision shall not apply to the following persons: (1) Any person who is under the influence of any drug, or under the combined influence of intoxicating liquor and any drug. (2)Any person who a peace officer has probable cause to believe has committed any felony, or who has committed any misdemeanor in addition to subdivision (f). (3)Any person who a peace officer in good faith believes will attempt escape or will be unreasonably difficult for medical personnel to control.")
23 See same, Drunk in public; civil treatment facility.
24 See same, Drunk in public; civil treatment facility.
25 CALCRIM 2966 – Under the Influence in Public [Drunk in Public], endnote 4, above.
26 See People v. Olson, endnote 6, above.
27Sean Webby, San Jose City Council ready to seek alternatives to drunk-in-public arrests, San Jose Mercury News, Nov. 18, 2008.
28Pomona criminal defense attorney John Murray is a seasoned criminal defense lawyer and featured legal expert commentator on Fox News. He defends those accused of drunk in public throughout Los Angeles and Ventura counties, making appearances at the Hollywood Courthouse, Inglewood Courthouse, Glendale Courthouse, Burbank Courthouse, and Van Nuys Courthouse, among others.
29Penal Code 1000 PC – Informal drug diversion programs. ("(a) This chapter shall apply whenever a case is before any court upon an accusatory pleading for a violation of...subdivision (f) of [California Penal Code] Section 647 PC of the Penal Code [California's "drunk in public" law], if for being under the influence of a controlled substance, ...all of the following apply to the defendant: (1) The defendant has no conviction for any offense involving controlled substances prior to the alleged commission of the charged offense. (2) The offense charged did not involve a crime of violence or threatened violence. (3) There is no evidence of a violation relating to narcotics or restricted dangerous drugs other than a violation of the sections listed in this subdivision. (4) The defendant's record does not indicate that probation or parole has ever been revoked without thereafter being completed. (5) The defendant's record does not indicate that he or she has successfully completed or been terminated from diversion or deferred entry of judgment pursuant to this chapter within five years prior to the alleged commission of the charged offense. (6) The defendant has no prior felony conviction within five years prior to the alleged commission of the charged offense.")
31Vehicle Code 23152 VC -- Driving under the influence [may be charged along with drunk in public]. ("(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.")
32Vehicle Code 23536-23548 and 23554-23562 VC detail the various penalties imposed in connection with misdemeanor DUIs under Vehicle Code 23152 and 23153 VC.
33See People v. Belanger, endnote 7, above.
34Health and Safety Code HS 11550 -- Under the influence [may be charged along with or instead of California drunk in public]. ("(a) No person shall use, or be under the influence of any controlled substance which is (1) specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), (21), (22), or (23) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (1) or (2) of subdivision (d) or in paragraph (3) of subdivision (e) of Section 11055, or (2) a narcotic drug classified in Schedule III, IV, or V, except when administered by or under the direction of a person licensed by the state to dispense, prescribe, or administer controlled substances...Any person convicted of violating this subdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days or more than one year in a county jail.")
36Penal Code 415 PC – Disturbing the peace [potential charge reduction from Penal Code 647(f) PC drunk in public]. ("Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.")
If you or a loved one faces misdemeanor or felony charges, contact our California criminal defense attorneys for help. We'd be glad to meet with you for a free consultation at one of our local criminal law offices in Los Angeles, San Francisco, Van Nuys, Pasadena, Long Beach, Orange County, Rancho Cucamonga, San Bernardino or Riverside.
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