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June 21, 2012

Public intoxication law will change, making it harder for arrest

By Maureen Hayden CNHI Statehouse Bureau

INDIANAPOLIS — You can be drunk in public but not guilty of public intoxication under a new state law that goes into effect July 1.

Earlier this year, the Indiana General Assembly passed legislation that raises the bar for what police and prosecutors need to charge someone with the misdemeanor crime of public intoxication.

Under the old law, it was a crime to be in a public place, in a state of intoxication caused by the use of alcohol or drugs.

The new law requires an extra element: a person has to be disruptive or dangerous, as well as intoxicated, before he or she could be arrested and charged with public intoxication.

But it might not be a good idea to go on a public bender. The new law still gives police discretion to make an arrest of an intoxicated person, though may take much more effort for them to make their case.

“It’s going to make a police officer’s job harder to do,” said David Powell, executive director of the Indiana Prosecuting Attorneys Council. “Police officers are going to have document very well the behavior of the intoxicated person.”

Here’s why: under the new law, a person who is intoxicated in public must also being doing one of these four things: endangering their own life; endangering someone’s else life; breaching the peace or be in “imminent danger” of breaching the peace; or harassing, annoying or alarming another person.

Some of those elements of the crime are in the eye of the beholder, Powell said. “If you’re drunk and throwing up in front a woman and her two children, is that annoying, harassing or alarming? I think that mother would say so, but somebody else might argue otherwise. It’s going to be up the courts to provide us some guidance.”

It was a court decision that prompted the new law. Backers of the bill didn’t like a 2011 decision by the Indiana Supreme Court that upheld the public intoxication conviction of a woman who was arrested for being drunk while she was a passenger in her own car.

The court relied on 1966 court decision that widened the definition of “public place” to include the inside of a vehicle along a public road.

But it was the details of the case that irritated the new law’s supporters:

The woman charged with public intoxication had given her keys to a friend who was sober and asked the friend to drive her home. As they were driving home, a police officer pulled the car over and discovered the sober driver didn’t have a valid driver’s license. The police officer was stuck with a driver with no license, and a passenger too drunk to drive, so he arrested both of them.

The state’s high court upheld the drunken woman’s conviction, and in doing so, sparked a small uproar. Legislators who backed the new law said the ruling would undermine admonishments from public safety advocates who urge people not to drink and drive.

Police and prosecutors in Monroe County tend to agree with that perception. Bob Miller, chief deputy prosecutor, said the new law will make it harder to prove a public intoxication case.

But his alcohol worries are dominated by the 40,000 Indiana University students who live in his county and frequent the bars within walking distance of the IU campus. If they’ve had too much to drink, he wants them walking home.

“It might help clear up the misconception that if you’re on the street and have had too much to drink, you’re going to be subject to arrest,” Miller said. “They may be more inclined to believe it’s okay to just go ahead and not drive.”

Miller said the new law still allows police to arrest someone who’s in danger of harming themselves or others. And it doesn’t keep him from using another much-used law on Indiana’s college campuses: the law that makes it illegal for a minor to possess alcohol.

The new law also brings Indiana more in line with 45 other states that require more for a public intoxication conviction than simply having downed a few drinks and being in a public place.

Maureen Hayden covers the Statehouse for the CNHI newspapers in Indiana. She can be reached at maureen.hayden@indianamediagroup.com

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