Drunk in Public – PC 647(f) [Lessons from Christina Aguilera]

Not to jump on the “post about celebrities” bandwagon, but just to use a recent arrest as an example…

Singer Christina Aguilera was arrested in West Hollywood in the early morning hours March 1, 2011.  According to press reports, her boyfriend Matt Rutler was stopped and arrested for DUI.  She was subsequently arrested for a misdemeanor violation of Penal Code section 647(f) – public intoxication – a.k.a. drunk in public.  How did this happen?

The elements of the crime

Public intoxication under PC 647(f) requires that the prosecution prove the following:

  • The defendant was willfully under the influence of alcohol and/or a drug or controlled substance;
  • They were in a public place;
  • AND
  • They were unable to care for their own safety, the safety of others or were blocking a public way.

But wasn’t she in a private car?  How could she get arrested for drunk in public?

A public place is a place that is open and accessible to anyone who wishes to go there.  Even case law has said that in a parked car on a city street counts as “in public.” Being a passenger in a car being driven on a public street would also count as “in public” and subject her to arrest.  I’ve read various accounts of her demeanor and condition, but the Sheriff’s Department spokesperson described her as unable to care for herself and incapacitated.  The spokesperson went on to say that the Sheriff’s Department had “no desire” to prosecute her for this offense.

Ultimately, the decision to prosecute is up to the prosecuting agency in that jurisdiction, but what he’s referring to is Penal Code section 849(b)(2).  If a person is arrested for intoxication only and “no further proceedings are desirable,” then they can be released by law enforcement instead of appearing in court.

What Ms. Aguilera should hope for is that they release her under Penal Code section 849(b)(1) instead.  Under that section, law enforcement could determine that there is insufficient grounds for a criminal charge to be issued and release her.  What’s the difference between 849(b)(1) and 849(b)(2)?  If she was released under 849(b)(1), the arrest is essentially undone and it’s now treated as a detention only, not an arrest.  There is no such language that deals with 849(b)(2).

Either way, breathe a sigh of relief on this one, Ms. Aguilera – it looks like no charges are going to be filed.

And, I assume Mr. Rutler is working with a criminal defense attorney on his DUI situation, but in case he stumbles across this post – you only have 10 days from today to request a hearing with the DMV or they’ll automatically suspend your license.  At a 0.09% alcohol level [according to news websites], you may have defenses to these charges.  Time for an attorney.

Joe Dane

info@joedane.com

(714) 532-3600

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