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Virginia’s exasperating public intoxication law and police enforcement practice

Northern Virginia criminal lawyer pursuing the best defense, since 1991

Oct 22, 2016 Virginia’s exasperating public intoxication law and police enforcement practice

Early on in my Virginia criminal defense career, I saw two sheriff’s deputies overseeing an intoxicated in public suspect blow into a preliminary breath test machine, calling out “blow, blow, blow.” One of the deputies looked at the PBT result, handcuffed the suspect, and led him away.

This man had been handcuffed and arrested for intoxicated in public, also called by police and prosecutors “drunk in public” or its acronym “DIP”.

The Virginia intoxicated in public cases that I have reviewed have never been investigated nearly as thoroughly by police as DWI cases, for instance omitting field sobriety tests. Even though an intoxicated in public conviction is a non-jailable Class 4 misdemeanor carrying no jail risk but a fine up to $250, police repeatedly arrest –rather than charge on summons — and bring public intoxication arrestees before the magistrate. After the magistrate finds probable cause to believe the alleged intoxicated in public crime took place, the arrestee (as with DWI arrestees) then often sits in jail for a few hours before being released, apparently so as not to enable the arrestee to return to the street to then again be in violation of the intoxicated in public law.

Virginia’s public intoxication statute provides:

“If any person profanely curses or swears or is intoxicated in public, whether such intoxication results from alcohol, narcotic drug or other intoxicant or drug of whatever nature, he shall be deemed guilty of a Class 4 misdemeanor. In any area in which there is located a court-approved detoxification center a law-enforcement officer may authorize the transportation, by police or otherwise, of public inebriates to such detoxification center in lieu of arrest; however, no person shall be involuntarily detained in such center.” Va. Code § 18.2-388.

We see, then, that the Commonwealths’ intoxicated in public law covers not only public intoxication, but also profane cursing or swearing. If the charging document against a defendant does not distinguish whether public intoxication or profanity is being charged, the criminal defense lawyer should consider filing a bill of particulars motion seeking to clarify the issue.

The Virginia appellate courts have apparently not yet entertained a First Amendment challenge against the profane cursing or swearing part of the public intoxication statute. Nevertheless, the profanity part of the statute is patently unconstitutional under the First Amendment. Cohen v. California403 U.S. 15 (1971)  (reversing a conviction under a similarly-worded anti-profanity statute, for wearing in the courthouse a jacket proclaiming “Fuck the Draft”). Consequently, Virginia’s legislature should strike the profanity section from this statute, so as to reduce the number of unconstitutional arrests and prosecutions initiated and even convicted under this profanity section.

Public intoxication charges can even be pursued for alleged public intoxication in bars, ironically, because under Virginia caselaw, a public place under this statute is one observable to the public. Crislip v. Virginia, 37 Va.App. 66, 554 S.E.2d 96 (2001). 

Because public intoxication is not jailable, apparently a limited number of defendants bother to hire a lawyer, even though a conviction under the statute can have adverse consequences for purposes of sentencing in future cases, possible probation revocation, reputation, employment, security clearance, and immigration status (if accumulated with other alcohol convictions). Moreover, because of the profanity section of the statute, people might mistakenly think that a person who pleads or gets found guilty for public intoxication was actually convicted of profane cursing or swearing, particularly when considering that the statute leads off with the profanity rather than intoxication language.

One day when I was filing my appearance in a Virginia public intoxication case, one of my otherwise favorite court counter clerks looked at me quizzically and asked: “Don’t you know this is [just] a DIP case?” No, it is not “just a DIP” case. It is a criminal charge that merits fighting.

The police must love the public intoxication law as an opportunity to conduct a search incident to arrest, to see if they can find some contraband to prosecute.

Police often conduct such cursory investigations of public intoxication cases that the cursory investigations should ideally lead to judges acquitting many of such cases. Of course, ideals are not always met in court. As much as field sobriety tests are junk science, when police omit field sobriety testing in public intoxication cases, their cases are all the more weaker. I have never seen a public intoxication case where any machine or blood test was used to check the suspect’s breath or blood alcohol level other than the handheld preliminary breath test machine, which should not be admissible at a public intoxication trial, just as PBT results are too unreliable to be admissible at a DWI trial. Va. Code § 18.2-267(C).

With public intoxication not being a jailable offense, Fourth Amendment challenges can be raised to seek the dismissal of public intoxication cases where the police have detained the defendant beyond the initial arrest and processing allowed by Atwater v. Lago Vista, 532 U.S. 318 (2001). Virginia law enforcement goes an extra harsh step by routinely having public intoxication arrestees detained for several hours until they appear to have sobered up.

The public intoxication statute itself confirms that “no person shall be involuntarily detained in [a detoxification] center.” Law enforcement has converted jails to de facto detoxification centers for involuntarily holding public intoxication arrestees. Therefore, I would argue at such trials that such detentions invalidate the prosecution. I would also argue that police and prosecutors have no authority to pursue a public intoxication prosecution, because detention of a suspect in a detoxification center must be “in lieu of arrest.”

Don’t our police and jail authorities have more important things to do with limited government budgets than to have police troll for public intoxication suspects and to have jail space fill with public intoxication suspects? The widespread police practice in Virginia of arresting and holding public intoxication suspects in jail for hours contributes to my low opinion of the current criminal justice system.

7 Comments
  • SR
    Posted at 06:37h, 06 December Reply

    I would argue that yes, police and jail authorities have more important things to do than to troll for public intoxication suspects. However, it is extremely frustrating to watch as these situations play out before your eyes with no arrests made or any form of consequence presented. In terms of individuals being detained, etc., I’m not certain which locations you’re referencing. In my area, an individual can openly use obscene profanity for hours in public, be assumed to be intoxicated, be warned, be warned 5 more times, and then… nothing. Citizens nearby are simply told “good luck getting that to hold up in court!” Aren’t there laws for a reason? Shouldn’t individuals be held accountable for their actions?

    • Jon Katz
      Posted at 08:11h, 06 December Reply

      Dear SR- Thanks for your comment. In Northern Virginia, at least, I think police over-arrest for intoxicated in public charges. This being a non-jailable charge, I disagree with the common practice of jailing intoxicated in public arrestees for hours after their arrest before they are released.

      In my experience, the majority of drunk people do not act loud and boisterous. If a person — drunk or sober — violates the disorderly conduct law, that is a matter separate from dealing with the intoxicated in public law.

      • JJ Josiah
        Posted at 14:29h, 01 May Reply

        Exactly John! Nowhere in the DIP law does it specify the accused has to be ‘causing a scene.’ He/she could be sh*tfaced, quietly sitting on a park bench, and that is enough. These laws are FKN ridiculous beyond justification, and as you vehemently oppose, police are perfectly within the law to troll the streets for easy prey, yes even grandma is not. The only way to beat the system is advocate to change the law. And that begins in the legislature. Please contact your VA assembly representative. In the meantime, the police ‘abuse’ will continue. I really hate to say it, but I also, have a very low opinion of the criminal justice system, and it all begins with biased officers making poor judgments during patrol. It has been my experience most do not exercise any compassion concerning the extenuating circumstances during the evaluation of whether to arrest / detain / or cite. And as I have said, unless the laws change, this practice will continue. Let’s hope the Portsmouth DA’s recent decision to move to dismiss most misdemeanor marijuana charges will be a catalyst for a grass roots movement that will revamp the criminal justice system in becoming a more citizen friendly organization, and eventually remove the abuses of the police!

  • mark bracey
    Posted at 21:26h, 15 September Reply

    A friend of mine was to be jailed for a previous charge beginning on September 4, 2018 for 6 months. He lives in the state of Ohio, but was charged in Virginia. Side note: His licence was taken away, so he had to use public transportation to arrive at the jail. Upon checking into the jail, the processing officer smelled alcohol on his breath and charge him for PUBLIC SWEARING/INTOXICATION. Is this right? what other problems could this lead to because he is also on probation.

    • Jon Katz
      Posted at 16:36h, 12 November Reply

      Thanks for posting a comment. However, you inquiry is better handled by your friend’s consulting in private with his Virginia lawyer or with another appropriate lawyer. Jon Katz

  • Vaness
    Posted at 18:33h, 20 March Reply

    My friend was not drunk, but was in a bar helping a girl who was drunk. The bar tried to kick them out, and called the police on them. When the police finally walked them out of the bar, they detained both with charges of “public” intoxication. They never did a sobriety test to them and someone told them there was no way to fight the case because it would be their word against a law enforcement officer’s. What do you think?

    • Jon Katz
      Posted at 20:51h, 20 March Reply

      While I will not comment on your friend’s specific matter (who should consult privately with a qualified lawyer), I will say that a Virginia public intoxication conviction is a Class 4 misdemeanor, meaning the only penalty is a fine up to $250 and court costs, compared to the reputation damage that such a conviction can cause. That means low risk to go to trial, with or without a lawyer, and to consider appealing any District Court conviction for a new trial, with or without a jury (where in Circuit court costs for a jury trial can be significant).

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