Public intoxication, hypothetical harms, and 'contempt of badge'

The Austin Statesman today published a story ("Public intoxication laws too fuzzy, critics say," March 27) questioning Austin PD's alleged use of public intoxication charges as "contempt of badge" and detailing the loosey goosey standards under which the law is enforced. "I can't believe the haphazardness with which they're arresting people for public intoxication," former DA candidate Mindy Montford told the paper. "You'd be hard-pressed in the penal code to find another crime as subjective as this one."

Montford said most offenses in the Texas penal code include some stipulations about a suspect's mental state, such as whether they acted recklessly or intentionally. They also put the burden of proving the offense's veracity on prosecutors.

But the public intoxication charge has none of this, Montford said, especially when compared with the state's laws against driving while intoxicated. "When you compare the two, the amount of evidence that goes into a DWI" is massive, she said, such as a field sobriety test and breath or blood alcohol tests. "There's none that goes into P.I."

Attorney David Gonzalez said he has represented college students who drove to the entertainment district downtown, had some drinks, decided it was best not to drive and then were arrested for public intoxication while walking home.

Gonzalez said the public intoxication charge is "the only law on the books that allows hypotheticals."

"Hypothetically, they could trip and fall down, so they're a danger to themselves or others," he said. In all other crimes, from theft to murder, a criminal act has to have been committed to justify a charge, he said.

While public intoxication is only a class C misdemeanor, meaning it is punishable by a fine not to exceed $500, it is also an arrestable offense and one that could cause problems at job interviews and other situations, attorneys said.

The offense accounts for a significant number of arrests for a Class C misdemeanor. "Austin police made about 5,600 public intoxication arrests last year, according to data obtained by the American-Statesman through an Texas Public Information Act request. In the past five years, the department has typically made between 5,500 and 6,000 arrests annually, except in 2009 when that number rose to 6,730 arrests, according to the data."