If you have questions about public intoxication law and want to speak to an Indiana public intoxication lawyer, call me for a free consultation at 317-695-7700.  I have practiced criminal defense my entire career, teach criminal law at the IU School of Law, and have personally handled thousands of cases.  Additional information about my office is available on my home page and in the news page. I provide criminal defense representation in the entire State of Indiana, including Indianapolis, Marion County, Hamilton County, Hendricks County, Boone County, Monroe County, Bloomington, Noblesville, Carmel, Fishers, Danville, and Plainfield.  If you have questions about criminal law, please do not hesitate to contact my office.

The History of Public Intoxication Law in Indiana

The Current Public Intoxication Law

Legal Definition of Intoxication

Legal Definition of Public Place

Legal definition of Disturbance

Dismissal of Public Intoxication Charges

The History of Public Intoxication Law in Indiana

Prior to 2012, Indiana’s public intoxication law made it illegal to be in a public place while under the influence of alcohol.  This meant that anyone who had a few drinks and was at a Colts game or at a bar was technically violating the public intoxication law.

Lawmakers assumed that prosecutors and law enforcement would use common sense and discretion in deciding how to enforce the law.  The Indianapolis Police Department in Marion County, Indiana began enforcing the law in strange and unexpected ways.  One individual was arrested while was sitting on a park bench, even though he was not causing a disturbance.  A second individual was arrested for sleeping in the back seat of his car because he did not feel that he should drive home.  A third individual was arrested for being in the back seat of a taxi, after the taxi driver was pulled over for a speeding ticket.  The individual in the back seat had drank alcohol and the taxi was on a public roadway, which meets the legal definition of a public place.

Indianapolis Criminal Defense Attorneys appealed many of these public intoxication convictions, arguing that the convictions violated public policy and were subject to arbitrary discretion.  The Indiana Supreme Court eventually held that the statute was constitutional.

In response to the abuses that were happening (primarily in Indianapolis and Marion County), Indiana lawmakers amended the state law, in order to ensure that the public intoxication statute was not abused by law enforcement. The new version of the law requires that a person create a disturbance in order for their behavior to become criminal.

The Current Public Intoxication Law

The current public intoxication law states as follows:

IC § 7.1-5-1-3 Public intoxication prohibited; failure to enforce by a law enforcement officer

(a) Subject to section 6.5 of this chapter, it is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person’s use of alcohol or a controlled substance (as defined in IC 35-48-1-9), if the person:

(1) endangers the person’s life;

(2) endangers the life of another person;

(3) breaches the peace or is in imminent danger of breaching the peace; or

(4) harasses, annoys, or alarms another person.

(b) A person may not initiate or maintain an action against a law enforcement officer based on the officer’s failure to enforce this section.

 The main change to the law was requiring that the person being arrested actually be causing some sort of problem, and not merely be peacefully drinking in a public place.

In order for the State to get a conviction for public intoxication, there are 3 key elements the state must prove:

(1) intoxication, and

(2) public place, and

(3) endangers the person’s own life; or endangers the life of another person; or breaches the peace or is in imminent danger of breaching the peace; or harasses, annoys, or alarms another person.

Legal Definition of Intoxication

“Intoxication” is defined under Indiana law as follows:

IC § 9-13-2-86. Intoxicated.

“Intoxicated” means under the influence of:

(1) alcohol;

(2) a controlled substance (as defined in IC 35-48-1);

(3) a drug other than alcohol or a controlled substance;

(4) a substance described in IC 35-46-6-2 or IC 35-46-6-3;

(5) a combination of substances described in subdivisions (1) through (4); or

(6) any other substance, not including food and food ingredients (as defined in IC 6-2.5-1-20), tobacco as defined in IC 6-2.5-1-28), or a dietary supplement (as defined in IC 6-2.5-1-16);

so that there is an impaired condition of thought and action and the loss of normal control of a person’s faculties.

Several Courts have looked at this law and offered further interpretation of the definition of intoxication.

Irwin v. State, 383 N.E.2d 1086 (Ind. App. 1978).

Irwin was stopped at a DUI checkpoint.  There was no evidence of criminal activity and no traffic violations.  The police officer asked Irwin for his driver’s license and Irwin complied.  The officer noticed the “odor of an alcoholic beverage and could see a brown prescription bottle in the center console between the two front seats. . . the bottle appeared to contain plant material.”  The officer also asked Irwin for his registration, during which the officer believed Irwin was covering the console.  The officer asked Irwin if Irwin had drank any alcohol and Irwin admitted that he had drank alcohol. The officer also saw an overturned beer bottle on the floorboard in front of the driver’s seat.  The Criminal Defense attorney argued that this evidence was not proof beyond reasonable doubt of intoxication.  The Indiana court found that even though the officer (1) smelled alcohol and (2) received an admission that Irwin had consumed alcohol, there was no probable cause to believe that Irwin was actually intoxicated.  The Indiana Court reversed the conviction and found Irwin not guilty since there was no evidence of “an impaired condition of thought and action and the loss of normal control of a person’s faculties.”

Upp v. State, 808 N.E.2d 706 (Ind. Ct. App. 2004)

– The defendant was charged with public intoxication after sniffing glue.  The criminal defense attorney argued that the law in affect at the time of the incident made it illegal to be intoxicated due to alcohol or a controlled substance.  The Indiana Court found that since glue was not alcohol or a controlled substance, the defendant should be found not guilty of public intoxication.

Legal Definition of Public Place

Whether or not someone is in a public place is often important in a public intoxication case.  Some locations, such as a bedroom, are obviously not a public place.  Other locations, such as a public park obviously are a public place.  The fact that property is privately owned (such as a mall) does not determine whether the property is a public place.  There are many locations, such as a bar, that are privately owned that still meet the legal definition of a public place.

Indiana Law defines a public place as “any place where the public is invited and are free to go upon special or implied invitation . . . a place available to all or a certain segment of the public.” Wright v. State, 772 N.E.2d 449 (Ind. App. 2002).  Under this definition, places that are generally open to to the public or certain members of the public, such as a bar, golf course, mall, or stadium meet the definition of a public place.  Indiana Courts have interpreted this definition in several cases.

State v. Culp, 433 N.E.2d 823 (Ind. Ct. App. 1982)

Culp was arrested in an apartment building.  He was not in an actual apartment, but was at the top of a stairwell.  The criminal defense attorney argued that this did not meet the definition of a public place.  The Indiana Court found that “members of the public at large are not impliedly invited or encouraged to enter the common areas of an apartment house except when they have personal and private matters to conduct with the tenants.” The Court went on to state: “[T]he enclosed common areas of an apartment dwelling are not public areas or places of public resort. . . It is well established in this state that a private residence, including the private grounds directly outside of it, is not a public place. . . We are unable to see how a private residence can be made a public place by a number of persons in the neighborhood gathering there, with or without invitation, to pass an evening in social intercourse and innocent amusement.”  Therefore, Culp was not in a public place and was found not guilty.

State v. Jenkins, 898 N.E.2d 484 (Ind. Ct. App. 2008).

Jenkins was also arrested at an apartment complex.  However, Jenkins was outside of the apartment complex.  The criminal defense attorney argued that this did not meet the definition of public place.  The Indiana Court found that being outside of the apartment complex was different than being in the building and found the evidence was sufficient for a conviction.

Cahisa Jones v. State, 881 N.E.2d 1095 (Ind. App. 2008).

– An Officer with the Indianapolis Metropolitan Police Department received a dispatch concerning suspicious.  The Indianapolis Officer observed Jones in a car on private property in Marion County.  Jones was inside the car, reclining in the front passenger seat and clearly intoxicated. There was a can of beer and a mostly empty whiskey bottle in the car. In the middle of the back seat of the car, approximately two feet away from Jones, was a handgun lying on top of a pile of clothes.  The Indianapolis criminal defense attorney argued that this evidence was not sufficient for a conviction.  The Indiana Court agreed, stating: “we have refused to uphold a public intoxication conviction where the defendant only was observed inside a car parked on a private driveway, and we declined to infer that the defendant must have traveled on a public road in an intoxicated state before arriving at the driveway.” The public intoxication conviction is reversed.

Moore v. State, 634 N.E.2d 825 (Ind. App. 1994).

– Moore parked his can in his previous wife’s driveway. Moore appeared to be intoxicated.  His former wife asked him to leave.  Her new husband took the keys to his car.  Police were called and Moore was arrested for public intoxication.  Moore’s criminal defense attorney argued that there was no evidence that Moore was in a public place.  The State admitted that Moore was seen at the house (which was not a public place) but argued that Moore must have driven on public roads to get to the former wife’s residence.  The Indiana Court found that the evidence was not sufficient for a conviction.  “The charging information states that Moore was in a state of intoxication at his wife’s [Indianapolis, Marion County residence] . . . , not on the public roads going to the residence. Further, it is uncontroverted that Moore was only observed in [the former wife’s] driveway or backyard.” Moore’s conviction was reversed by the Indiana Court of Appeals.

– Officers observed Δ attempting to unlock a vehicle while in the driveway of a friend’s house. Δ was convicted of public intoxication. Δ appealed, arguing that the evidence was insufficient to show that she was in a public place.  “A public place does not mean only a place devoted to the use of the public. It also means a place that is in point of fact public, as distinguished from private, – a place that is visited by many persons, and usually accessible to the neighboring public. A private residence, including the grounds surrounding it, is not a public place.” The State presented no evidence that the parking area was used by the public in general rather than only the residences next to the area. Dissent: The officer testified that the parking area was “not really so much as a driveway, it’s just a parking area off the street, a place where people can pull in and park perpendicular to the flow of traffic.” Δ agreed that the parking area was shared by at least two residences, that of her friend and the neighboring residence.  “[I]f the majority’s definition of a public place becomes law, then it is difficult to distinguish why an apartment complex parking lot or common parking area owned by condominium owners would be a public place.” Christian v. State, 897 N.E.2d 503 (Ind. App. 2008).

– Defendant’s claim had to be rejected that defendant could not be convicted following a bench trial of Class B misdemeanor public intoxication in violation of IC 7.1-5-1-3 because the State had not shown that defendant was “knowingly” intoxicated, despite defendant not challenging the evidence supporting the offense that defendant was (1) intoxicated in (2) a public place. That offense did not contain a mens rea, which pursuant to IC 35-41-2-2(d) would have had to apply to every element of the crime, and, thus, the State could obtain a conviction without showing that defendant “knowingly” committed the crime. Street v. State, 911 N.E.2d 654 (Ind. Ct. App. 2009).

Legal Definition of Disturbance

As discussed above, Indiana law has been amended so that an individual must create some type of disturbance before being convicted of public intoxication.  Specifically, Indiana law requires that the person must:

(1) endangers the person’s own life; or

(2) endangers the life of another person; or

(3) breaches the peace or is in imminent danger of breaching the peace; or

(4) harasses, annoys, or alarms another person.

– This area of law is still relatively new and is developing.  However, Indiana Court’s have already began looking at what constitutes a disturbance.

Stephens v. State, 992 N.E.2d 935 (Ind. Ct. App. 2013).

– Stephens was intoxicated based on an odor of alcohol, bloodshot eyes, slurred speech, and unsteady gait.  However, there was no evidence to show that the defendant either endangered himself or others, breached or was in imminent danger of breaching the peace, or harassed, annoyed, or alarmed another person. Stephens called police and left a private residence in order to remove himself from a dangerous situation.  The criminal defense attorney argued that this evidence was not sufficient to show that there was a disturbance.  The Indiana Court agreed and found Stephens not guilty of public intoxication.

Davis v. State, 13 N.E.3d 500 (Ind. Ct. App. 2014).

– Davis was intoxicated in a public place and was arrested near a roadway.  The criminal defense attorney argued that there was insufficient evidence of a disturbance.  The State argued Davis could have been hit by a car.  The Indiana Court of Appeals found Davis not guilty.  The Indiana Court agreed with the criminal defense attorney, finding that there was no evidence that Davis went anywhere near the busy, dangerous roads outside the apartment complex, there was no evidence that the road within the apartment complex presented a danger to him, and the argument that he was in danger of being struck by a car if he left the complex was merely speculative.

Sesay v. State, 5 N.E.3d 478 (Ind. Ct. App. 2014).

– Sesay was standing near a car, several feet from the roadway.  He was peaceful and several feet from the roadway.  The officer did not see Sesay in the roadway, nor did he see him fall, and there was nothing to indicate that defendant’s intoxication made it more likely that he would be hit by a car.  The criminal defense attorney argued that nothing Sesay did actually endangered his life.  While a car could leave the roadway, this would be the fault of the motorist.  The Indiana court found Sesay not guilty, because the State failed to prove that he was endangering his life.

Morgan v. State, 22 N.E.3d 570 (Ind. 2014)

– Morgan was intoxicated and fell asleep at a bus shelter.  He was arrested or public intoxication.  The criminal defense attorney argued that this was insufficient for a conviction and that Morgan was not bothering anyone.  The Indiana Court found Morgan not guilty.  Merely sleeping was unlikely to annoy a normal reasonable person.  Also, there was no one at the bus shelter other than Morgan, his brother, and a police officer.  Morgan was agitated after being approached, but his degree of agitation, standing alone, would not annoy a reasonable person. 

Milam v. State, 14 N.E.3d 879 (Ind. Ct. App. 2014)

– Milam was in the seat of a vehicle which had been pulled over.  He was intoxicated and asserted that he had not thrown a bottle out the window.  The criminal defense attorney argued that denying blame was not sufficient.  The Indiana Court agreed and found Morgan not guilty.

Dismissal of Public Intoxication Charges

Public intoxication cases can sometimes be dismissed, especially for a first offender. This is often done through a diversion or conditional discharge.

Additionally, public intoxication charges can sometimes be dismissed under the Indiana lifeline law, which is designed to protect persons from arrest when they call the police during a medical emergency.  The Indiana Lifeline law is cited below:

IC § 7.1-5-1-6.6 Dismissal of Public Intoxication or Illegal Possession Charges

(a) This section applies only to a person:

(1) arrested for a violation of:

(A) section 3 of this chapter if the offense involved a state of intoxication caused by the person’s use of alcohol;

(B) section 6 of this chapter if the offense involved the person being, or becoming, intoxicated as a result of the person’s use of alcohol; or

(C) IC 7.1-5-7-7; and

(2) whose arrest was facilitated because another person reported that the person appeared to be in need of medical assistance due to the use of alcohol.

(b) If a person described in subsection (a):

(1) does not have a prior conviction for an offense described in subsection (a);

(2) pleads guilty to an offense described in subsection (a); and

(3) agrees to be placed in the custody of the court;

the court, without entering a judgment of conviction, shall defer further proceedings and place the person in the custody of the court under conditions determined by the court.

(c) If the person placed in the custody of the court violates the conditions of custody, the court may enter a judgment of conviction. However, if the person fulfills the conditions of the custody, the court shall dismiss the charges against the person.

(d) There may be only one (1) dismissal under this section with respect to a person.

If you have questions about public intoxication law and want to speak to an Indiana Public Intoxication Lawyer, call me for a free consultation at 317-695-7700.  I have practiced criminal defense my entire career, teach criminal law at the IU School of Law, and have personally handled thousands of cases. I provide criminal defense representation in the entire State of Indiana, including Indianapolis, Marion County, Hamilton County, Hendricks County, Boone County, Monroe County, Bloomington, Noblesville, Carmel, Fishers, Danville, and Plainfield.

 

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