Public Intoxication = Police Brutality?

I don’t have any inside information on the TABC Rainbow club raid. I did notice that the TABC was checking for public intoxication when they swarmed the gay bar in Fort Worth.

I’ve received a decent number of inquiries from PI defendants who claim to have been abused or unlawfully arrested by law enforcement.

I’ve had enough experience with criminal law to know that not every tale of police misconduct is accurate. I’ve also had enough experience with law enforcement to know that PI can be a great cover for malfeasance.

What makes PI so ripe for abuse?

First, it provides a built in defense for the cops- “This guy was drunk”. It goes straight to the credibility of the defendant/victim. No one likes drunks, so the police can slander you just by arresting you.

Second, our appellate courts have expanded the definition of what a PI is to cover nearly any situation in which a person is in public and has been drinking. Having no standard allows the police to arrest whoever pisses them off and call it PI.

Third, PI cases rarely have video evidence. Usually the only witnesses are cops, the defendant, and maybe the defendant’s friends.

I had a PI case in Fort Worth dismissed recently. A quick thinking friend of the defendant filmed the arrest on his phone. Guess what? No one was intoxicated. The defendant wasn’t guilty of PI, but POP. He pissed off the police by refusing to talk with them and was arrested for PI.

What’s the law on public intoxication?

From 49.02 Texas Penal Code-

(a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

That seems like a fairly high bright line standard that requires a showing of danger to someone. Fortunately for police our pro conviction appellate courts have expanded this law to the point of absurdity.

Here are two cases that highlight the transformation of PI in Texas.

Where defendant was walking down the middle of the street in the middle of night, appeared glassy-eyed and unsteady on his feet, arrest for public intoxication in violation of Tex. Penal Code Ann. § 49.02(a) was proper. Williams v. State, 1997 Tex. App. LEXIS 3314 (Tex. App. Houston 14th Dist. June 26 1997).

This is a standard prosecutors cite often, that if you stumble while walking you are PI. This one decision created a new crime in Texas, stumbling after drinking in public.

It gets even worse…

A person commits the offense of public intoxication if that person appears in a public place while intoxicated to the degree that he may endanger himself or another; the danger need not be immediate, it is sufficient if the accused renders himself or others subject to potential danger. Null v. State, 1997 Tex. App. LEXIS 2646 (Tex. App. Houston 14th Dist. May 15 1997).

Remember, it’s not legislating from the bench when you expand the scope of a criminal law beyond recognition, that’s strict constructionism. The statute doesn’t mention “potential danger”, but pro conviction judges took out the magic appellate marker and added it.

Overbroad laws invite abuse and subject the public to arbitrary harassment. If you have a violent, homophobic, or just an asshole of a cop and you give him the arbitrary power to arrest anyone for PI you can expect violent, homophobic and assholic behavior.

The problem is amplified when you add the mutaween zeal of TABC officers. I’ve never seen grown men so exited to raid teenage keg parties or arrest bartenders. Really, no one cares guys. It’s bad enough we subsidize TABC strip club “undercover” operations. TABC’s new policy of raiding bars for PI enforcement has disaster written all over it.

Texans need the “old” PI law back, and protection from the moral busybodies at TABC.

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12 responses to “Public Intoxication = Police Brutality?”

  1. Frank Burly says:

    Do they have to prove that you were intoxicated? Are blood tests performed, or are you guilty if you just appear intoxicated?

  2. Todd says:

    I think you are misrepresenting the facts in the above PI case law. Don’t ignore the fact that the defendant in Williams v. State was walking IN THE MIDDLE OF THE STREET and IN THE MIDDLE OF THE NIGHT. If this doesn’t sound like a dangerous situation for a drunk to be in, I don’t know what does.

  3. Michael in LH says:

    Walking down the middle of my street and most in my neighborhood is perfectly safe in the middle of the night. Heck, it is pretty safe even during the day.

  4. c. auguste dupin says:

    The reason for the current attitude of TABC has to do with a lack of mission. Just addressing license issues is not glamorous – no arrests. If you have arrest authority you think you need to use it. Combine that with a need to find respect among the cops you identify with, not the regulators but the door kickers, you just have to prove to others that you’re the “real thing” by doing “real” cop work – arresting people. Only When management steps on that issue will TABC fix its problems.

  5. Tami says:

    I’ve met people who told me that they had not even been drinking when arrested for public intoxication. They were at a club listening to music. He was a friend that I knew to be someone who didn’t drink. He also was guilty of POP – he refused to talk to the police. This was also at a gay bar – in the 80’s. This does concern me, as I often go to clubs and listen to music and drink cola all night.

  6. Nick says:

    PI is one of the few catch all pissed-off-the-police charges.

  7. Aaron says:

    I stopped going out at night in Temple 15 years ago.Several patrol cars would pull up to a bar, cops & TABC would pick out about 6 people, and carry them away. In the morning, you would get a twinky for breakfast. I thought it only happened in this sad little town.

  8. I wholeheartedly agree with you. I cannot tell you the many times I have called for the police to come pick up the drunks on East Lancaster in Ft. Worth and FWPD would not touch them because they said, “they aren’t a danger to themselves or others.” Even though the person could not stand up and was face down on public property beside busy street Riverside Drive, the police would do nothing. When I asked for badge number of cop, he threatened to arrest me if I didn’t step off of the street Bomar Ave which has very little traffic. I said even though car is no where in sight, you will arrest me for impeding traffic. He said, Yes Ma’am.
    Yes, if you piss a cop off, he/she will find a way to arrest you and PI is easy!! I hope heads roll and politicians lose their seats over this one!!

  9. Just got arrested (PI ticket for $389) the other night while walking to my car. I haven’t had a single drink in about a year

  10. Michael Wandel says:

    I am going to court tomorrow for a PI that I plead not guilty to over 2 years ago. I received nothing from the City of Fort Worth to notify me of my court date, but had to find out from one of my 3 friends that were with me. They filed the paper work in July so they missed the statute of limitations by a month… On a Wed night myself and 3 friends went to Fort Worth and like you would expect it was a ghost town.. on the way back to the car one of my friends jumped up and broke the Bennigan’s to go sign a block later we were stopped by 5 bicycle cops who were extremely aggressive. They asked who hit the sign my friend immediately took blame for what he had done, then officer DELONG proceeded to say “well guys you all came down together so your going down together” PI tickets for all 4 of us plus criminal mischief for my buddy who broke the sign. The guy who broke the sign already went to court… his PI and Criminal Mischief were dropped and he was order to only pay repair cost for the sign. I will post again tomorrow and let you know what mine and my friends’ fate turns out to be (we all have the same court time and date). btw none of us had even 1 drink

  11. rayne says:

    wow. I just turned 21 and I started to look up the legality of being drunk, and it’s ridiculous. If you have one beer, you are intoxicated, at least to some degree. heck, I could be legally intoxicated on diphenhydramine(OTC allergy medicine), so what qualifies for a PI is if I’m intoxicated enough so that I ‘may’ pose a danger to myself or others. And the cop decides if I have the potential to be dangerous. Basically this law is a tool for cops to use when no law is being broken. I’ve been stopped for walking alone in the middle of the night, reminds me alot of F451, but the cop had nothing on me and let me go. So I guess the best way to be intoxicated in public is to avoid police. I might as well smoke pot, then.

  12. Giovanni says:

    I found a blog run by a police union in San Jose that’s been very vocal about the subject of public intoxication.

    Check out this interesting opinion piece that appeared not long ago:

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