Intoxicated, Publicly

Factual Questions
1

This past Saturday night, I was arrested for Public Intoxication. (Appearantly you only need to smell of alcohol and upset the police or deputy in this case)
I used to work in loss prevention in a large retail outlet, and was informed that we, as LP agents, could only detain, not arrest the alleged thiefs. Only the police could arrest. Ok, I was arrested, given a criminal tresspass, but I was never read my rights. The two deputies said that they didn’t have to because I wasn’t going to be asked any questions. I was under the assumption that anytime you were arrested you had to be read your rights. Maybe I’m wrong, and this is TX, were it seems normal isn’t normal.
After spending the rest of the morning in the rubber room (don’t ever tell them that you were once suicidal, it sucks) the judge came in and gave me time served. I plead guilty, just because I wanted out of there and knew if I played the game, I could end it.
My question is (I know, it’s taken long enough,) if I’d plead not guilty and been given a court date, how would they prove that I was publicly intoxicated? I’m thinking that it would be the deputies’ word against mine, and we all know that the law’s word is usually worth more. There was no breathalyzer, as I was not operating a motor vehicle. I’m sure that they could smell alcohol on me, but I’m sure they could smell smoke on me too, but I’d not smoked any that night. I was at a club. I got busted at Taco Cabana, which was the first time I’d been there, and appearantly the last time I will too… due to the criminal tresspass.

Anybody have thoughts or points to give me? It’s all said and done now, but I am just curious as to how this would have went down if I’d plead not guilty. I probably would still be in lockup, but other than that, I’m thinking that PI is a no win battle.
Oh, this is my first offense ever and i’m 26.

“I dream that she aims to be the bloom upon my misery”

  • I Miss The Girl Soul Coughing
2

I don’t know what to tell you except maybe a helpful (I hope) anecdote. A friend of mine decided to drive home quite wasted from the bar one night and got in to an accident, no one was injured (just him and a pole). He was sitting on the curb when they arrived. A few witnesses were about. The police arrested him and took him in. They did not get any names from witnesses. His lawyer, upon hearing this, laughed out loud, told the judge my friend was not driving, another guy was and had run away. the cops had no proof and my friend walked. Just goes to show you, sometimes mistakes can cost them.

3

Knowledge from working as a waitress in small-town Texas bar follows:

PI’s are usually given because you were acting like an ass and they just wanted to bust you for something. (This is not a judgment on your character or your behavior. Simply a statement of fact.) If you were not acting up in any way, then it would have been just your word against theirs. However, added to the fact that they charged you for criminal trespass, I’d think that your behavior was indicitive of intoxication. And judges around here are just waiting to ruin someone’s day.

4

Jeez. Am I the only one who isn’t amused by tales of people beating (valid) drunk-driving charges?

5

ooops… simulpost. In case anyone didn’t get it my comment was directed at Poysyn’s post, not the OP.

6

It seems to me that not intending to “ask you questions” isn’t a valid reason for not reading your rights. What if you had actually performed a more serious crime and unknowingly confessed to that crime in their presence? And then they couldn’t use that confession because they hadn’t obtained it legally? I would think that states would have laws that require such procedures so they can cover their asses in all circumstances. Maybe you can get off on a technicality… Of course, having already plead guilty…

I thought Miranda dealt not just with confessions but with all constitutional rights like counsel, etc, but I could be wrong.

Then again, I think a first offense PI is just a misdemeanor. Aside from a night in the tank, have you been punished otherwise?

7

The purpose of the Miranda warnings is to ensure that any statements you give are made voluntarily.

If the police do not give you the Miranda speech, and nonetheless interrogate you, the remedy is a suppression of your statements. It’s not the dropping of all charges.

So the deputies were quite right. If they don’t plan to question you, there is no reason they must give you the Miranda warnings.

What if you speak up on your own and implicate yourself in this (or another) crime? Well, since your confession in that circumstance is clearly not a product of coercion, or custodial interrogation, they would be free to use it against you.

By the way, the Supremes are going to review just what the scope of Miranda is this year. There are two schools of thought: the Miranda warnings are a basic constitutional guarantee, or they are a rule of evidence, fashioned by the Supreme Court under their rule-making authority for federal courts.

The Supreme Court has authority to create rules of evidence for the federal court system, absent an act of Congress. When they issued Miranda in 1966, everyone assumed it was a statement of Constitutional guarantees. But Congress didn’t. Congress passed a law in 1968 that said confessions were admissible in federal court if they were voluntary, period. In other words, Congress sought to “overturn” the Miranda decision. They had the authority to do this if Miranda was an evidentiary rule, but not if it was a Constitutional principle.

That law went unused for some thirty years. Then the Fourth Circuit reversed a US District Court’s decision on admitting a confession, relying on the thirty-year-old law. Circuit court decisions are binding on the circuit. That means in the Fourth Circuit, right now, Miranda is not the controlling law… but it is in every other circuit.

We’ll see what the Supremes say…

  • Rick
8

The ‘right to remain silent’, of which the Miranda warning reminds you, would have been irrelevant unless the police intended to introduce into evidence a statement by you subsequent to when the warning should have been read. Such a statement would not have been allowed absent the Miranda warning (WARNING: Miranda and its warnings are under serious attack in the US judicial system by police and district attorneys who find it convenient to use ‘confessions’ uttered without the warnings to convict).

The failure to advise you of your right to counsel, however, WAS important regardless. Indeed, your willingness to plead guilty was most certainly affected by the fact you weren’t reminded of your right to an attorney. I am assuming Public Intoxication is a misdemeanor offence; if it is not, if it is an infraction similar to traffic tickets, then you may not have had a right to an attorney.

You may find that this conviction haunts you more than you can suspect now. Many jobs ask about priors, as well as licensing agencies. You might want to talk to a specialist in criminal procedure to see if there is any way to get the guilt determination removed through appeal, though unless you reserved your right to appeal, I suspect the chances are not good.

Of course, one has to wonder what you were doing that caused the officer to decide you weren’t just another person who had had a bit too much, and elevated you into the status of criminality. But I am a very ardent supporter of Miranda and I don’t like when police arbitrarily discard its requirements.

9

Ruadh,

I wasn’t amused, to say the least and firmly believe that everyone who is caught for drunk driving should be strung up. (A friend of mine and I were crossing the street together when she was hit and killed by one) He got off with house arrest because he left the scene and they couldn’t prove he was in the car. My story was merely to illustrate that cops do screw up, even when it seems like a done deal, they assumed my friend would merely plead guilty, they should’ve made every effort (including maybe taking down a witnesses name or two) to ensure an airtight case.

10

DSYOUNG says:

I don’t remember where you practice, Doug, but in my jurisdiction there generally is no right to appointed counsel for a misdemeanor offense. I think we can assume we’re not talking about P.I. as a felony, and here at least, there’s no right to counsel – and therefore no duty to advise of such a right – unless you’re talking about a felony.

Jodi

Fiat Justitia

11

I don’t believe there’s a right to appointed counsel for misdemeanors under the Federal system, either, though as always I’m sure I’ll be corrected if I’m wrong.

(I practice in Federal court quite a bit, but don’t practice criminal law.)

Jodi

Fiat Justitia

12

Okay, here is how it works in California right now. Cuz I just saw it in action. No, not for me.

If you get a PI, you can get an attorney. The attorney costs about $750.00. The attorney gets you off for that pretty easily. So instead of getting fined $500 or whatever it is, you pay the lawyer & it comes out about even.

They don’t have Mirandize you. But then they can’t use what you say against you. But if you are teetering from one side to the other & about to fall on your face, they can & are going to use that on your report. Didn’t get a report eh? Then you won’t be able to know what they said & what the charges are.

Too late now, I know but, getting a lawyer for PI or DUI usually comes out about even & you get a clear or cleaner record.

13

In Virginia, the right to an attorney exists only for Class 1 or Class 2 misdemeanors, which are the only ones carrying possible jail time. Drunk in public is a Class 4 misdemeanor (see Va Code § 18.2-388) and no duty arises on the part of the police or the court to advise or offer counsel.

It is possible, however, that someday such a conviction would form the predicate for an enhanced sentence or class of offense in a future charge; if so, he might be able to collaterally attack this previous uncounseled conviction. This comes into play all the time with DUI offenses here. Off the top of my head, I cannot think of any situation in which a Class 4 drunk-in-public conviction would ever be the predicate for anything more serious…

  • Rick
14

A long ago experience has been revived in my thoughts. In 1974 I had just been released from a month long stay in the hospital by a few hours and had my roommate and a friend sitting with me in my living room. We heard some commotion outside, but ignored it, as I lived one half block from one of the jumpier intersections in town (Montrose and Westheimer for any Houstonians out there).

A minute later my front door burst open (it was locked) and a guy fell in the door. Well, we checked him out and he was alive and uninjured, but thoroughly intoxicated (I suspected more than just alcohol). After about 20 minutes we revived him enough to find out that he lived about four blocks away, and we realized he wasn’t going to get there under his own steam. I suppose we could’ve just rolled him back out onto the alley that my place fronted on, but my friend and I decided to give him a ride home.

About a block from my place we got pulled over. I don’t really know what for, the cops said the license plate light was out, but it was working when we followed the car downtown and when we got it out the next day. I suspect they saw the obliterated guy in the front seat and went for it. These were two uniformed HPD in a blue and white. When they pulled us over, seven Harris County Sheriff’s Deputies came out of the bushes, pissed (I think at HPD for probably blowing some about to happen bust). So we get three cops apiece. Not surprisingly, Mr. Blotto obliged the cops’ desire to find actionable activity by having his pants fall down slightly ahead of the rest of him. So, he’s going down for PI and indecent exposure. My friend went down for the license plate light (how often do you get booked for that?).

And me?

PI.

[ the point ]I hadn’t been any where near a drop of booze for over a month. The PD wasn’t going to bust two out of three guys in a car and let the other one walk. PI is one of those handy-dandy one-size-fits-all charges (as vagrancy used to be) that cops can use to clear the scene. I wouldn’t for a minute argue that the law has no useful application, but in the case I’ve described, it was used wantonly.[ /the point ]

Anyway, I made bail @ 3:00 AM (and only then found out the charge) and took a cab from the police station to Methodist Hospital’s emergency room, where I had a blood test. As I’d been hospitalized and only home for a few hours, it was easy to establish my contact with other people (who could testify as to the absence of drinking in my day’s activities) continually through the previous 12-14 hours. I fought it and won. And it cost real money.

.
Seeing as you managed a criminal trespass in a public restaurant, it seems there’s a bit more to the story than we’ve heard. That may be for MPSIMS.

So, yes you can fight such charge. DSYoung and Bricker have brought more fruitful to bear info than I on the status of your current legal record.

I would stay in the can a few more hours or days if I thought I could rectify the record.

Hope this helps.

15

Thanks for all the info guys.
The point is moot really, I think.
I was just wondering what would have happened had I plead not guilty. I was released after about 8hrs in the rubber room. (remember, never admit to have been suicidal. being naked in a cold cell lined with rubber is not fun.) I was not fined, and the only thing negative I can think of is being harassed by the cops, spending time in a place where I could not sleep, and having a misdemeanor on my record.
What I was thinking (after the fact) was that I could have plead ‘not guilty,’ have a court date, have my friends testify for me, bring some other friends in as character witnesses (to prove that I’m a loud and obnoxious guy anyway) and get the charge thrown out. But, that would cost money, and the only thing I was out was one day of work (I could have gone, but I fell asleep for the next few hours)
So, thanks for the info guys. I wasn’t really being an ass to anyone in the restaurant, just the two deputies that were harassing me. Boy, I love retelling that one. I know that you shouldn’t talk smack to the fuzz, but when you’re dealing with tweedle-dee and tweedle-dickhead, you just can’t back down. But, it’s a no win situation. Cops with small penises will bust those with larger ones. :wink:
But, seriously, I think I’ll be a little less boisterous after downing a few.
Oh, the cops said I was disturbing the people next to me. So I took the two steps over and asked them if I was bothering them in any way, and they said no, and that they really didn’t even notice my exsistance. I think that made the cops even madder.
I agree with what was said about the PI being a blanket charge for cops with nothing better to do. I just wish I’d not had anything to drink so I could screw those two.

“I dream that she aims to be the bloom upon my misery”

  • I Miss The Girl Soul Coughing
16

Montrose and Westheimer in the 70’s? I don’t think the word “jumpy” does it justice. :slight_smile:

17

Best idea I’ve heard. The bar where I used to work seemed to bring out the worst in our deputy sheriffs. They hated us. If you walked out of the bar and tripped over anything, they’d arrest you for a PI. It doesn’t always take much. Then again, I’d hope that in most places it takes a little bit more than a cops bad attitude to give you a PI. Obviously not…

18

Most law enforcement will take a lot of guff and just do their job… because that’s their job.

Some won’t.

There’s an unwritten law in every jurisdiction in this country called, “Contempt of cop.” And if a cop wants to take a hard-line attitude, you can probably be arrested for disorderly conduct, or public intoxication, or failure to obey a police officer.

If the charges are meritless, they won’t stick.

  • Rick
19

beatle, sounds just like my city. But I know it isn’t because here they would send the entire department.

“I have gathered a posie of other men’s flowers, and nothing but the
thread that binds them is mine own.”

20

If you have kids, or ever have kids, the social services dept or the wife can use a PI against you, however old it is.

For a PI to be real, you need 1. Bac reading or urine, blood test 2. you must be a danger to yourself or others 3. you must be disturbing others. They can put you in the dungeon at the station for 6 hours to dry out [usual time]. Or if you are nasty they can put you in the county jail to dry out for 24 hours, I think that is.