Intoxicated in Public?   What is the Law? 
by Becky Johnson   July 9, 2004 
Santa Cruz, Ca. --- A homeless man is walking in the early evening along Ocean St. when he is stopped by a Santa Cruz Police officer. Although the man has no open container of alcohol, he has been drinking. The officer smells alcohol on his breath and gives him a citation. Then the officer drives off on another call leaving the homeless man on the sidewalk. 
This should never happen according to current law. 
The only laws which affect people who are intoxicated are state penal codes 647 and 853. A local Santa Cruz municipal code ordinance, MC 9.12 prohibits having an open container of alcohol in any public place. 
PC 853 says that a person can only be arrested for public intoxication "if the person arrested was so intoxicated that he or she could have been a danger to himself or herself or to others." 
PC 647 is the public intoxication law. This law declares it illegal if an intoxicated person "interferes with or obstructs or prevents from free use of any public street, sidewalk, or other public way." Hence, the person must somehow obstruct movement on the sidewalk in order to be cited. In order to be cited for drunkeness or intoxication, the person must be "in such a condition that he or she is unable to care for his or her own personal safety or the safety of others." That means they must be so drunk that they are a danger to their own selves or to others. Just smelling of alcohol is not enough. 
If the person is gravely disabled, the officer shall place him or her in civil protective custody under section 5170 of the Welfare and Institution code. This provides for a 72-hour hold for treatment and evaluation of inebriates. If the officer places the person in civil protective custody, they may not be charged for a criminal offense. The law states "no person who has been placed in civil protective custody shall thereafter be subject to any criminal prosecution or juvenile court proceeding based on the facts giving rise to this placement." However, the officer may arrest the individual if their impairment is due to illegal drug use, or if the officer has reason to believe they have committed a felony, or if the officer reasonably believes the person will attempt to escape or be difficult for medical personal to control. 
PC 853 section ( i ) says "Whenever any person is arrested by a peace officer for a misdemeanor, that person shall be released according to the procedures set forth by this chapter unless one of the following is a reason for non-release, in which case the arresting officer may release the person, or the arresting officer shall indicate, on a form to be established by his or her employing law enforcement agency, that the person was so intoxicated that he or she could have been a danger to himself or others." 
The upshot of the law is that a person must either have an open container on their person, or be a danger to themselves or others, or be obstructing the public right of way for the officer to interfere at all. 
When an officer stops a car and arrests not only the inebriated driver (as the officer should), but the inebriated passenger, then the officer has stepped outside of his or her legal authority. An inebriated person who is being driven to a place of safety is not obstructing a sidewalk, is not a danger to himself or herself or threatening any other person. 
And no officer, who cites a person for public intoxication should simply issue a citation and release that person, unless they were obstructing a sidewalk and have now stopped. If they were inebriated enough to be cited, they must be a danger to themselves or others and the officer has an obligation to take them either to jail or place them on a civil 5170 hold. 
That means, unless the person is gravely disabled---i.e. can't dress himself, can't feed himself, and can't walk without stepping into traffic, the police must leave them alone. A little drunk doesn't count. 
PC 647 says something similar.
Flyer by HUFF (Homeless United for Friendship & Freedom)  309 Cedar PMB 14B  S.C. 95060   831-423-4833  7-9-04
More info: www.huffsantacruz.org   http://groups.yahoo.com/group/HUFF/messages  & http://groups.yahoo.com/group/HUFF/files