California Penal Code 647(f) -- Drunk in Public

California Penal Code 647(f) prohibits being "drunk in public". Simply put, you are "drunk in public" under California law if

1. your level of intoxication makes you unable to exercise care for your safety or for the safety of others, or



2. your level of intoxication interferes with, obstructs, or prevents others from using streets, sidewalks, or other "public ways".¹

A conviction for "drunk in public" can trigger probation, fines, and even incarceration. Worse still, a conviction will go on your permanent criminal record, and can be seen by prospective employers and licensing agencies. Therefore, it is advisable that you do everything possible to avoid this conviction.

Fortunately, there are a variety of 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) charge.

In order to better understand how California’s "drunk in public" law is prosecuted and...more importantly defended...our Los Angeles criminal defense attorneys² will address the following:

Overview of Penal Code 647(f) "Drunk in Public"

How Does the Prosecutor Prove that I was "Drunk in Public?"

Penalties, Punishment, and Sentencing for Penal Code 647(f)

How Do I Fight a California "Drunk in Public" Charge?

Penal Code 647(f) and Related Offenses

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 Vehicle Code 23152 VC Driving Under the Influence, Health and Safety Code 11550 HS Using and/or Being Under the Influence of Drugs, and Penal Code 415 PC Disturbing the Peace.

Overview and History of Penal Code 647(f) "Drunk in Public"

"Drunk in public" is sometimes interchangeably referred to as "DIP", "Public Intoxication", "Drunk and Disorderly", "Being Intoxicated in a Public Place", or "Under the Influence in Public". And while the crime has been around since the late 1800s, it has changed quite a bit.

Originally enacted in 1872, Penal Code 647 was California’s "vagrancy" law. At that time, section 11 allowed for the prosecution of "common drunkards". After the courts ruled that the phrase "common drunkards" was unconstitutionally vague³, the California Legislature in 1961 rewrote what we more or less know as today’s Penal Code 647(f).

During that revision, the Legislature turned Penal Code 647’s "vagrancy laws" into crimes of "disorderly conduct". And...with particular respect to "common drunkards"...turned section 11 into subdivision "f" regulating public intoxication. This modification was designed to provide "‘a uniform, definite standard for police control of the public drunk who is a nuisance to others and a danger to himself.’"⁴

When the state made that transformation, it clearly indicated its desire to take control of any laws relating to public drunkenness. As a result, any local ordinances that are more restrictive than California Penal Code 647(f) will be deemed invalid.⁵

How Does the Prosecutor Prove that I was "Drunk in Public?"

While the phrase "drunk in public" sounds pretty basic, this crime of "disorderly conduct" actually has quite a few nuances that make it rather technical.

In order to convict you of violating California’s "drunk in public" law, the prosecutor must prove the following facts (otherwise known as "elements of the crime"):

1. that you were willfully under the influence of alcohol and/or drugs,



2. that, at the time you were under the influence, you were in a public place, and



3. you were unable to exercise care for your own safety or for the safety of others, or



4. because of your intoxication, you interfered with, obstructed, or prevented the free use of a sidewalk, street, or other public way.⁶

Let’s take a closer look at some of these elements in order to fully understand the legal requirements of this offense.

That you were "willfully" under the influence

"Willfully" means deliberately or on purpose.⁷ This means that you voluntarily ingested drugs and/or alcohol. If, for example, someone slipped you a drug or "spiked" your non-alcoholic drink, you were not "willfully" under the influence.

That you were in a "public" place

In interpreting Penal Code 647(f), California courts have said that a "public place" is the area outside a home in which a stranger is able to walk without challenge.⁸ Obvious examples include restaurants, clubs, shopping malls, parks and public streets. Courts have included the following specific examples:

• a car parked on a public street,⁹



• a common hallway in an apartment building,¹⁰ and



• the area in front of a house, including the driveway, front lawn and front porch.¹¹

But the courts have also held that "public places" are places which are open to common or general use...even if the location isn’t one that the general public frequents. If you otherwise meet the elements of a "drunk in public" charge...and are in a "public place"...it doesn’t matter whether you are actually visible to the public.¹²

Following this logic, "public places" also include:

• a private movie booth in an adult bookstore,



• massage parlors, and



• a hospital emergency room.

By contrast, "private" places would include the inside of one's house, the backyard area of a house, the garage, or the inside of a hotel room.

You were unable to exercise care for your own safety or for the safety of others, or were obstructing the use of a public way

The Penal Code 647(f) statute really addresses a person who is out in public and extremely intoxicated. Examples would include someone who is falling down drunk, passed out on the sidewalk, or trying to start fights because of his drunken state.

Many people get buzzed or even drunk at California restaurants, nightclubs, concerts, or other public venues. Only in the more extreme cases would this public intoxication trigger a Penal Code 647(f) prosecution.

This is because merely being "drunk" in public isn’t a crime. It only becomes criminal when you get inebriated to the point that

• you are a safety risk to yourself or others, and/or



• you are interfering with other people’s right of movement.¹³

Let's consider some examples:

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. Yet he's coherent and able to walk and answers the officer's questions. Although he may be drunk, Frank should not be arrested for a Los Angeles "drunk in public" charge.

Take the same facts. But suppose Frank is so disoriented that he's stumbling and falling on the sidewalk. He yells obscenities at some passers-by, almost starting a fight. Fearing that Frank may be so drunk that he will harm himself or others, the LAPD may appropriately arrest him for violating California’s "drunk in public" law under Penal code 647(f).

Penalties, Punishment, and Sentencing for Penal Code 647(f)

California Penal Code 647(f) is a misdemeanor. If convicted, you face

• informal (otherwise known as "summary") probation,



• up to six months in a county jail, and



• a maximum $1,000 fine.

If prosecutors convict you of your third "drunk in public" offense within a twelve-month period, you face a minimum 90-day county jail sentence. However, the court can suspend this penalty if you alternatively spend 60 days in an alcohol treatment and recovery program.¹⁴

How Do I Fight a California "Drunk in Public" Charge?

A California criminal defense lawyer might take any of a number of approaches to fighting a Penal Code 647(f) "drunk in public" case. The following are some examples.

The location wasn’t public

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.

Insufficient evidence of intoxication

As San Bernardino criminal defense lawyer Michael Scafiddi explains¹⁵, "Overzealous cops and prosecutors arrest and charge people for public intoxication simply because they’re buzzed...or even drunk...in a public place. 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."

Lack of probable cause

It’s not uncommon for the police to violate a person's rights in investigating a "drunk in public" situation. If, for example,

• they detain you without personally witnessing you violate a law,



• perform an illegal search, and/or



• fabricate evidence against you,

your criminal defense attorney can bring a "suppression motion" in an effort to have the entire case dismissed.

Informal diversion

Even if you are clearly guilty of the PC 647(f) charge, a good California criminal attorney can often negotiate an "informal diversion" program with the judge and prosecutor.¹⁶ Under this plan, you agree to perform some community service and/or attend some AA meetings. If you successfully complete these requirements, your case is ultimately dismissed and no criminal record is generated.

In practice, our California criminal defense lawyers have been successful in getting almost all Penal Code 647(f) "public intoxication" cases dismissed. If you've been charged with this offense, we urge you to contact us to discuss the matter.

Penal Code 647(f) and Related Offenses

There are a few offenses that are closely related to "drunk in public" charges. Below are examples of some of the most common.

If the police discover you "drunk" in a parked car, for example, they will likely try to arrest you for California Vehicle Code 23152 VC "driving under the influence";.¹⁷ Depending on the circumstances of the offense, they may try "circumstantially" to prove that you had been driving. Perhaps the keys were in the ignition...perhaps the engine was running...perhaps you had your foot on the brake...

If the officer didn’t personally see you drive the car, he/she may be unable to prove that you were DUI. If/when this is the case, the officer will likely arrest you for being "drunk in public" under Penal Code 647(f).

California Health and Safety Code 11550 HS "using and/or being under the influence of drugs"

If, after contacting you, the police believe that you are under the influence of drugs...but are not so intoxicated that you are a safety risk to yourself or others...they will probably opt to arrest you for California Health and Safety Code 11550 HS "using and/or being under the influence of drugs".¹⁸

California Penal Code 415 PC "disturbing the peace"

California Penal Code 415 PC "disturbing the peace" actually has nothing to do with a public intoxication charge. The reason we include it in this section is because it is often used as a plea bargaining tool in exchange for a reduced "drunk in public" charge.

If your California criminal defense attorney can convince the prosecution that the case against you is flawed...but not so flawed that it deserves to be dismissed...your lawyer may arrange for you to plead guilty or "no contest" to "disturbing the peace" instead.

A Penal Code 415 PC charge only carries

• a maximum 90-day county jail sentence,



• a $400 maximum fine, and



• isn’t priorable like a public intoxication charge (which means that subsequent "disturbing the peace" charges won’t automatically increase your penalty).¹⁹

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 Shouselaw.com.

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.

Legal References:

¹California Penal Code 647(f) -- 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.")

²Our Los Angeles criminal defense attorneys have local criminal law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.

³ Ex parte Newbern (1960) 53 Cal.2d 786. The Court in Newbern conducted a thorough analysis of Penal Code 647’s phrase "common drunkard" before it concluded that it has no precise definition. As a result, the court held on page 797 that "the challenged subdivision of Penal Code section 647 is unconstitutionally vague, uncertain and incapable of being uniformly enforced."

⁴In re Koehne (1963) 59 Cal.2d 646, 648. ("Following the decision in In re Newbern, 53 Cal.2d 786, 3 Cal.Rptr. 364, 350 P.2d 116, which declared the state ‘common-drunk’ law unconstitutionally vague, the Legislature undertook to revise former Penal Code section 647 [California’s "drunk in public" law], which concerned vagrancy, drunkenness, and similar misdemeanors. The matter was considered in detail by the Assembly Interim Committee on Criminal Procedure. The committee recommended that the conduct proscribed by section 647 be labeled ‘disorderly conduct’ instead of ‘vagrancy,’ and that the individual misdemeanors be redefined in terms of acts instead of status (e. g., ‘engages in any act of prostitution’ instead of ‘common prostitute’). With regard to subdivision (f), the committee quoted Professor Sherry, the draftsman of the bill, to the effect that: ‘This provision * * * would fill the gap left by the decision in Newbern by providing a uniform, definite standard for police control of the public drunk who is a nuisance to others and a danger to himself.’ (Assembly Interim Committee Reports 1959-61, Vol. 22, No. 1, p. 19.)")

⁵See same at 649. ("In view of the language of section 647, subdivision (f), of the Penal Code and the circumstances surrounding its enactment, it is clear that the Legislature intended to preempt the field... Accordingly, a city ordinance attempting to make certain acts pertaining to intoxication in a public criminal is in conflict with the state law and is void."

⁶California Jury Instructions – Criminal. CALJIC 16.430 -- Drunk in public. ("In order to prove this crime, each of the following elements must be proved: [1] A person was [found] in a public place; [2] That person was willfully under the influence of [ ] [or] [any combination of ]; and [3] That person was in a condition that [he] [she] was unable to exercise care for [his] [her] own safety or the safety of others.] [or] [[3.] [4.] That person, by reason of being under the influence, interfered with or obstructed or prevented the free use of any street, sidewalk, or other public way.]")

⁷ Judicial Council of California Criminal Jury Instruction -- CALCRIM 2966 -- Drunk in public. ("Someone commits an act willfully when he or she does it willingly or on purpose.")

⁸ 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), 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.’")

⁹People v. Belanger (1966) 243 Cal.App.2d 654, 657. ("Certainly, if appellant had been found in the state of intoxication indicated standing, walking,^FN1 sitting or lying upon the street, it could not be contended that such conduct was not a violation of the 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), if 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, ^FN5 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.")

¹¹See People v. Olson, endnote 8, above.

¹²CALJIC 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 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.]")

¹³See CALJIC 16.430 -- California Penal Code 647(f) "Drunk in public", endnote 6, above.

¹⁴California 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.")

¹⁵San Bernardino criminal defense lawyer Michael Scafiddi is a former law enforcement officer. He now uses that inside knowledge to help defend clients in San Bernardino and Riverside Counties. Scafiddi routinely makes appearances at the Murrieta Southwest Justice Center and in Fontana, Banning, Barstow, Victorville, and Joshua Tree.

¹⁶California Penal Code 1000 – 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]...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.")

¹⁷California Vehicle Code 23152 VC -- Driving under the influence. ("(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.")

¹⁸California Health and Safety Code HS 11550 -- Under the influence. ("(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...")

¹⁹California Penal Code 415 -- Disturbing the peace. ("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." This is commonly used as a plea reduction in a California Penal Code 647(f) "drunk in public" charge.)

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