As of May 25, 2012, Governor Mitch Daniels has signed the new Public Intoxication law into effect. The new law will go into effect July 1, 2012. The intent of the new law, among other things, is to discourage potential drunk drivers from operating a motor vehicle, by not penalizing them by imposing criminal liability for getting home by other means. Also, the legislature sought to limit the authority of police officers in utilizing this offense in other, less appropriate situations.
Previous to the passage of Indiana Senate Enrolled Act 97 (2012), law enforcement officers would often use the current public intoxication statute to impose criminal penalties upon individuals when they did not have the necessary reasonable suspicion to charge them with other crimes. In other words, the law often served as a “catch all” for law enforcement officers when they couldn’t establish that the suspect violated any other laws.
In my experience, often times officers would charge drivers of motor vehicles with a blood alcohol content (BAC) of less than 0.08 with public intoxication, since intoxication under the old law was up to the individual officer’s discretion. In other words, a person could be charged with public intoxication solely because the officer had reasonable suspicion to believe the person(s) were intoxicated, regardless of an actual blood alcohol concentration. Another common situation used to occur when the driver of a motor vehicle was taken into custody for driving under the influence (DUI) or operating a motor vehicle while intoxicated (OWI) and the passenger also admitted to drinking or where the officer smelled alcohol on the person’s breath or in the vehicle.
As of July 1, 2012, this is no longer the case. The new law reads:
SECTION 1. IC 7.1-5-1-3, AS AMENDED BY SEA 274-2012, SECTION 2, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 3. (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.
SECTION 2. IC 7.1-5-1-6, AS AMENDED BY SEA 274-2012, SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2012]: Sec. 6. (a) Subject to section 6.5 of this chapter, it is a Class B misdemeanor for a person to be, or to become, intoxicated as a result of the person’s use of alcohol or a controlled substance (as defined in IC 35-48-1-9) in or upon a vehicle commonly used for the public transportation of passengers, or in or upon a common carrier, or in or about a depot, station, airport, ticket office, waiting room or platform, 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. (emphasis added).
Under the new law, law enforcement must demonstrate reasonable suspicion that the person or persons endangered themselves, endangered others, or breached the peace. In other words, as of July 1, 2012, it will be lawful for a person to peaceably walk home from a party or an establishment after drinking. Several versions of this bill were debated, and the final version weakened the original position somewhat, adding the “breach of peace” element.
In my opinion, the new law still leaves the door open to give law enforcement officers discretion in deciding who to arrest. Making a determination such as a “breach of the peace” is inherently subjective; all subjective determinations are up to law enforcement. We will see how the new law plays out…
If you have been charged with public intoxication in Indiana and need advice from a lawyer. One of the criminal defense lawyers at SFT Lawyers can help! CALL FOR A FREE CONSULTATION TODAY! (219) 841-5683.