Is it illegal to be drunk in public in California? No, it’s actually not.

However, California law sets penalties for cases where a person’s drunkenness (1) prevents them from exercising care for their safety or the safety of others, or (2) causes them to obstruct sidewalks, roads or other “public ways.”

drunk in public chargesThis means that it’s perfectly legal for you to be drunk in public in California. It’s only becomes an issue, legally, when your actions interfere with the safety or enjoyment of others.

Drunk in public (or “public intoxication”) is a misdemeanor in California. It is punishable by up to six months in county jail and $1,000 in fines. One thing to keep in mind is that even with a reduced sentence, a drunk in public conviction would go on your permanent criminal record, where it is accessible to future employers in background checks.

Don’t be intimidated by aggressive prosecutors or judges. Because of the impact this can have on your employment prospects, these charges are absolutely worth fighting.

Definition of ‘Drunk in public’ in California

In order to prove that you were drunk in public, a prosecutor will have to prove three things:

  1. You were willfully under the influence of alcohol, drugs or a controlled substance;
  2. You were in a public place when you were under the influence; and
  3. You were either unable to exercise care for your safety or the safety of others, or you were obstructing a “public way.”

Taking a moment to dissect things, you might notice that state law requires you have willfully become drunk. We sometimes see this in cases with druggings or dates; if someone has put a substance in something you’ve been drinking without your knowledge, you are not willfully drunk.

Next, California law defines a public place as any area outside a home in which a stranger is free to walk. This can be anything from a sidewalk to a restaurant, sports venue, bar, nightclub, a hallway in a hotel or apartment building or in a car on a street. This includes a front lawn, but not a backyard.

What if you are drunk in a private residence?

As we said above, it’s perfectly legal to be drunk in public as long as your behavior isn’t affecting the safety or enjoyment of others. Just the same, it’s legal to be drunk in private.

There have been cases in the past where police have arrived at a private residence to find someone who is drunk. The police officer then requests the person leave their residence and walk onto their lawn (technically a “public place” in California law). At this point, the person will be arrested for public intoxication. Can the police do this?

They can’t. In this case, you are not considered to have been drunk in a “public place.”

Public intoxication: Exercising care for yourself or others

public intoxication chargesWhat does it mean to be so intoxicated that you can’t “exercise care for yourself” or others? It means that your behavior has changed enough that you are a safety risk to yourself and/or the people around you.

As an example: You and a friend are going out for some drinks, and you both have way too many. You know it would be unsafe to drive home, so you both hail rides. Your friend stumbles a bit on his way out of the bar but is able to get into his Uber safely. Despite his drunkenness, he was still able to exercise care for himself and others, and he is not guilty of public intoxication.

Let’s say you had a harder time, trying to hail a cab. In your attempt to stop a cab, you unkowingly walk into the street, forcing drivers to slam onto their brakes or swerve to avoid hitting you. Even though you knew it would be unsafe to drive home, this is a failure to exercise care, and it could be a case of public intoxication.

Public intoxication: Obstructing a public way

This is more straightforward. If your behavior is making it impossible for the public to safely pass in a public way like a sidewalk or a street, then you are obstructing a public way. We commonly see this when someone passes out after having too much to drink.

What is ‘The Drunk Tank’?

Instead of filing formal public intoxication charges against you, police in California can do what’s called “civil protective custody.” This is also known as “the drunk tank.”

Police can hold you for up to 72 hours for observation and treatment. If they do this, the good news is that they can’t file charges against you for drunk in public. Not all police and sheriff’s departments in California have drunk tanks, however, and police will typically opt for filing charges if they have reason to believe you will be hard to control.

Defenses against public intoxication charges

As we mentioned above, keeping a public intoxication charge off of your criminal record can be very helpful for your future employment prospects. How can you do it?

A skilled criminal defense attorney can examine the facts of your case, the requirements of the law above and can use that to defend your rights in the courtroom. For example: Even if a policeman believes it to be the case, your backyard is not public property, so a criminal defense attorney can work to get public intoxication charges quickly dismissed if you actually weren’t in public.

Robert M. Helfend has served the Los Angeles area for more than 30 years, successfully defending drunk in public charges in the courtroom. Call today for your free case review — 800-834-6434