Drunk in Public … Were you actually “drunk” and in “public”?


Va. Code § 18.2-388 is referred to as “Drunk in public & public intoxication”; it may seem straight forward but there are a few things to note. This does not only apply to just being drunk from drinking too much alcohol; any drugs that can cause this sort of prohibited behavior is treated the same under this state law and can result in this charge as well. Also, just having alcohol in your system and being out in public does not equal being drunk in public. So, what does?


Public” – Va. Code § 18.2-388 does not specify what a public place is exactly. One of the reasons for this is because it can sometimes be open to interpretation depending on the circumstances of the case, and there is no set mold for what can be interpreted as being in public.


Take being on your driveway, inside your apartment complex, or outside of a bar for example. Can you tell if which of these could be considered being in “public” or “private”? What the courts determine may vary on the circumstances of your own case, and can also be impacted by effective legal counsel.


Intoxication” – This essentially holds the same definition and meaning as “under the influence”, which as Va. Code §4.1-100 defines it, consuming enough (alcohol) to affect your manner, disposition, speech, muscular movement, general appearance or behavior, as to be apparent to observation by others. This is important because it emphasizes that your intoxication must be to the point where it can be noticeable and recognized by others.


Why The Police Will Charge You


Based off this information, this means that an officer will determine your intoxication by his perception and can charge you if you smell strongly of alcohol, have bloodshot/glossy eyes, your words are slurred, and your overall demeanor seems shaky/uncoordinated. These indicators give the officer probable cause that you were intoxicated. The officer does not have to conduct FSTs (“field sobriety tests”) for probable cause that you were drunk in public, including breathalyzers, and you absolutely do not have to consent to them. But if you did, that has given them more evidence against your case in court regarding your intoxication.


However, due to police officers not being required to conduct FSTs and oftentimes issuing the charge based off their perception of you, their judgment may not always be correct. The courts must prove that 1) you were in public and 2) you were intoxicated beyond a reasonable doubt based off the officer’s report, which may not always be as easy as it seems depending on the circumstances.


Virginia’s code for drunk in public (§ 18.2-388) also specifically states that profanely cursing or swearing can get you charged as well, so this further adds to the emphasis of how your overall actions/demeanor was at the time can spur the charge.


Penalties for Being Publicly Intoxicated


Being found guilty of public intoxication in Virginia is a Class 4 Misdemeanor, which constitutes a fine of up to $250 and no possible jail time.


However, if you just decide to pay the fine and accept the charge without challenging it in court with legal defense, be aware that you are admitting guilt and that it will appear on your permanent criminal record which cannot be expunged.


Avoiding Conviction


The primary defenses to this charge involve those two key factors of whether you were in a public area, and whether you were actually intoxicated or not. If the place where you were charged is hazy in regards to it swinging towards being a public area or private, that could be grounds on which to challenge on in court, because if you were intoxicated privately, then there is no “drunk in public” charge. Furthermore, where exactly in the place you were at the time of your charge matters. Although a police officer can try and determine the place he/she found you intoxicated is suitable for a charge, the officer can not take you out of a private place and into a public one to ensue a charge.


But were you actually intoxicated, and if so, was it to the point of causing any disturbance to others around you? This is just as crucial because if we can prove that you were not intoxicated/demonstrating that you were, then there is also no justifiable charge. If the police officer responsible for the charge did not conduct any scientific methods of determining your intoxication, this can be a focus of defense in court.


Remember, that despite there being no possibility of jail time, being drunk in public is a criminal offense in Virginia. For it, your best bet is to meet with an experienced Criminal Defense Attorney with an expertise in drunk in public laws, such as Attorney Joseph Yoon of Yoon Law Firm conveniently located right by the Fairfax County Courthouse, to discuss the ways to avoid a possibly unnecessary charge and prevent a criminal record.