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Public Intoxication Laws and Procedures in Texas

Public Intoxication Laws and Procedures in Texas

In Texas, public intoxication is a Class C misdemeanor criminal offense. Section 49.02 of the Texas Penal Code states: “A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.”

Three separate elements must all be present for a public intoxication offense:

  1. You must be in a “public place,”
  2. You must be “intoxicated,” and
  3. Your level of intoxication must be such that it may cause you to be a danger to yourself or to someone else.

The first element requires that you be in a “public place.” Texas law defines a “public place” as “any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.”

Remember, “public place” is different from “public property.” Private property can still be a “public place” if the public has access to it. Here is how I explain it to my clients: A public place is pretty much anywhere in the world except inside of your own house with the doors locked. In other words, you can be arrested for public intoxication almost anywhere, including the front yard of your house, inside of a vehicle, or inside of a bar or a hotel.

The second element requires you to be “intoxicated,” which is defined in Texas as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or having an alcohol concentration of 0.08 or more.” Breath or blood tests are almost never offered or administered after being arrested for public intoxication (they aren’t required by law to be administered) so public intoxication cases require at least some evidence that you did not have the normal use of your mental faculties or your physical faculties due to drinking alcohol, taking drugs, or a combination of both.

The third element is that your intoxication must be to such a degree that you may pose a danger to yourself or to another person.  The key word is “may.”  There only needs to be evidence that you might potentially pose some hypothetical danger to yourself or to someone else due to your alleged intoxication (e.g., you might fall down and hurt yourself, you might go drive a vehicle while intoxicated, you might pass out and become the victim of a robbery or sexual assault, etc.). There does not need to be evidence or proof that you were actually posing a specific, imminent danger to anyone.

A police officer only needs “probable cause” to arrest you for the offense of public intoxication. Probable cause is a very low burden of proof. The officer only needs to think you might be intoxicated in a public place, and that is enough to arrest you, take you to jail, and charge you with the crime. A police officer has no obligation to administer field sobriety tests, a breath or blood test, or any other kind of test before arresting and charging you with public intoxication. They can arrest and charge you based solely on their observations of you.

What happens when you are arrested for public intoxication in Texas:

  1. If detained or arrested for the offense of public intoxication, you almost certainly will be taken to jail, where you will spend anywhere from 6-12 hours or more before you are allowed to be released.
  2. Some jails require you (or a friend or family member) to deposit a Cash Bond in order for you to be released. Generally, the Cash Bond will be in an amount between $200.00 and $500.00, and will be held by the Court until the final disposition of your case. The Cash Bond will be used to pay any fines and court costs that may be assessed by the Court.
  3. When being released, you will either be given a date to appear in Court, or you will be notified to contact the Court within a certain number of days. You need to contact and hire a lawyer BEFORE your Court date or your deadline to appear in Court.

In some rare circumstances, a police officer who detains and charges you with the offense of public intoxication will allow you to be released to a friend or family member who agrees to take you somewhere safe and assume responsibility for you.

While this means you avoid a night in jail, it doesn’t mean you avoid a criminal charge. The police officer will issue you a citation for the offense of public intoxication and a summons to appear in Court before he or she releases you to your friend or family member. This situation is very rare, because a police officer will not want to wait around for a ride that may or may not show up to take you home. It is easier for them to just arrest you and drop you off at the jail.

It doesn’t take much for a police officer to arrest you for public intoxication, but once the case goes to Court the prosecutor has a much higher burden of proof, and must prove all three elements beyond a reasonable doubt (which is a very high burden of proof).

Generally, the evidence presented against you in Court will be the testimony of the police officer who arrested you.  The officer will testify that he smelled alcohol on your breath, and observed you having bloodshot eyes, slurred speech, and unsteady balance (whether or not these things were actually present). The officer will testify that based on his training and experience, you were intoxicated and did not have the normal use of your mental or physical faculties.

Occasionally, there may also be video of you from a dashboard camera or body camera worn by the police officer. There might also be witnesses who will testify that you appeared intoxicated, out of control, belligerent, etc. The police officer and any other witnesses presented by the prosecutor are subject to cross examination by your defense attorney.

What is the punishment for a Public Intoxication charge in Texas:

  • If convicted of public intoxication, the punishment is a fine of up to $500.00 plus court costs.
  • Under some circumstances, a public intoxication charge can be enhanced to a Class B misdemeanor, which carries a punishment of up to 180 days in jail and a fine of up to $2,000.00.
  • More importantly, since public intoxication is a criminal offense under the Texas Penal Code, a conviction will be reported on your criminal history, and will cause you to have the dreaded “criminal record” that can be viewed by the public, employers, etc.

Therefore, it is very important that you retain an experienced, skilled criminal defense attorney who has handled thousands of public intoxication cases, and who will aggressively negotiate a dismissal of your public intoxication charge and prevent you from having a permanent criminal record.

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