Public intoxication or swearing is a ticketed offense, with a small monetary penalty. So small that it may seem harmless to simply pay the penalty. But just simply paying the fines for a Drunk In Public ticket is the same as pleading guilty to the charge. And if you do, you will be pleading guilty to the misdemeanor criminal offense and have that conviction on your criminal record.
The Virginia drunk in public law is found in Virginia Code § 18.2-388 which reads: “If any person profanely curses or swears or is intoxicated in public, whether such intoxication results from alcohol, narcotic drug or other intoxicant or drug of whatever nature, he shall be deemed guilty of a Class 4 misdemeanor. In any area which there is located a court-approved detoxification center a law-enforcement officer may authorize the transportation, by police or otherwise, of public inebriates to such detoxification center in lieu of arrest; however, no person shall be involuntarily detained in such center.”
For a drunk in public charge, the government must simply prove that you were intoxicated and in public. Virginia courts have defined “in public” broadly to include any place in open view and visible to the community. This includes outdoor areas owned by you that are visible to others, such as a porch or a front yard. Hackney v. Commonwealth, 186 Va. 888, 45 S.E.2d 241 (1947); Crislip v. Com., 37 Va. App. 66, 72, 554 S.E.2d 96, 99 (2001). Since the statute addresses behavior, it is enough if a police officer testifies that he observed you acting in a manner consistent with an intoxicated person. Slurred speech and stumbling while you walk might suffice, but there does have to be some outward behavioral signs of having consumed alcohol.
So a charge that alleges a person’s eyes were glassy, bloodshot, or that he smelled like alcohol and had admitted that he had been drinking would not be sufficient for a conviction, as these things generally describe appearance, which is not punished under this code section. Sestito v. De Brular, 634 F. Supp. 2d 615, 620 (E.D. Va. 2009) (holding it was not enough that the person in question had bloodshot eyes, seemed irritable, and had a strong smell of alcohol emanating from him if he otherwise behaved coherently). Likewise, the strong smell of alcohol alone would not be enough to show that someone is intoxicated for the purposes of this law. This behavioral rule cuts both ways, however, as the police need not have measured your blood alcohol level (through a breathalyzer or otherwise) for you to be convicted of a drunk in public charge. It is enough for you to exhibit intoxicated behavior.
If you’ve been charged with public intoxication, you should consider talking to an experienced attorney to evaluate your case.
