Drunk in Public

State law in Virginia prohibits swearing or being intoxicated in a public place, also known as “drunk in public.” Under Virginia Code section 18.2-388, “[i]f 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.” Because a Class 4 misdemeanor is only punishable by a fine (i.e., no jail time), it is often a pre-payable offense, meaning the accused doesn’t have to appear in court. However, it is important to understand that public intoxication is a criminal offense, not simply a civil offense like a traffic ticket. If a person simply pays the fine without going to court, that person is admitting to the crime of public intoxication and will have that conviction on their record for life. A prosecutor must prove this charge beyond a reasonable doubt in court, and for someone who wishes to avoid a criminal conviction, challenging the charge is usually worth the trouble.

In order to convict a person of public intoxication, a prosecutor must prove two elements independently and beyond a reasonable doubt; first, it must be proven that the individual is in public and second, that they are intoxicated. This seems like common sense, but a further breakdown of these two elements shows how a good defense can make this challenging for prosecutor to accomplish.

(1) Definition: “Public”

Virginia Code section 18.2-388 does not define what it means to be in public but the higher courts in Virginia have established some guidelines. In one case, the Virginia Court of Appeals stated that, “[t]he plain meaning of ‘in public,’ therefore, is a place in open view, visible to the community.” Crislip v. Commonwealth, 37 Va. App. 66 (2001). In that case, a man was on the porch of his own house, but in clear view of the public streets. The court determined that the man was in public. In another case however, a federal court determined that under Virginia law, a person was not in public when they were outside their house on the front lawn, but at the end of a long driveway out of view of any public road. Rogers v. Pendleton, 249 F.3d 279 (4th Cir. 2001). The particular facts of every case are unique and a careful legal analysis is necessary to determine if a person is actually “in public” – if not, they cannot be found guilty of public intoxication.

(2) Definition: “Intoxication”

The public intoxication law does not define what “intoxicated” means, but courts use the definition found in code section 4.1-100, which describes intoxication as “a condition in which a person has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior.” While this seems like a very broad definition, the Virginia Supreme Court has said that the “mere odor of alcohol on one’s breath” is insufficient as a matter of law to prove intoxication. Hill v. Lee, 209 Va. 569, 572 (1969). Virginia courts usually require some physical symptoms of intoxication, although those signs of intoxication do not need to be extremely severe for a conviction. Bloodshot eyes or slurred speech are probably enough, a person does not need to be falling over or passed out to be intoxicated under the law. See, for example, McGhee v. Commonwealth, 701 S.E.2d 58 (Va. 2010).

Drunk in Public v. Public Intoxication

Most individuals charged with this offense are charged under the state law for public intoxication, Virginia code section 18.2-388. Because of this, “drunk in public” and “public intoxication” are used interchangeably to refer to this same law. However, counties are permitted to make their own laws in Virginia, and some have laws that are very different from the state law and still use the term “drunk in public.” It is often more difficult for prosecutors to win a conviction if the police charged the offense under a county law that differs from the state law, because there are no definitions or important legal cases to offer guidance and define the terms. If charged with a drunk in public or public intoxication offense, it is important for a person to first find out how they are charged before developing a good defense.