An essential element to a violation of 647(f) is that the person must \u201cby reason of his being under the influence of intoxicating liquor\u201d is unable to exercise care for his safety or that of others and by that same reason, interferes with the free use of any street, sidewalk or other public way. It is not enough that Defendant had consumed alcohol earlier. It is the suspect\u2019s condition at the time of the arrest that counts. Witnesses will be asked if they had any reason to believe Defendant was intoxicated.<\/p>\n
There is not enough probable cause for arrest as a public inebriate as a matter of law if the Defendant would not get out of the way because he was so drunk. An Officer would only be able to detain Defendant to investigate if he was under the influence and the Defendant was detained for that purpose. There is no crime for appearing in a public place exhibiting the objective symptoms of having ingested alcohol. Despite admissions from the Defendant, an officer will say he arrested and later booked Defendant for having allegedly violated Penal Code section 647(f) without ever determining Defendant was actually was under the influence of alcohol.<\/p>\n
The prohibition against unreasonable arrest is safeguarded by the statute\u2019s providing that the subject must be inebriated to a level whereby he cannot, by reason of the inebriation, care for his personal safety or that of others. Powell v. Texas<\/em>, (1968) 392 U.S. 514, 554 n. 5.(\u201cI do not question the power of the State to remove a helplessly intoxicated person from a public street, although against his will, and to hold him until he has regained his powers. The person\u2019s own safety and the public interest require this much. A statute such as the one challenged in this case is constitutional insofar as it authorizes a police officer to arrest any seriously intoxicated person when he is encountered in a public place.\u201d);White, J., concurring(emphasis added); People v. White<\/em>, (1991) 227 Cal.App.3d 886. \u201cThe public intoxication statute, Penal Code section 647, subdivision (f), is carefully crafted to impose criminal culpability only if the publically intoxicated person is unable to exercise care for his or her own safety or the safety of others….The statute does not punish the mere condition of being a homeless, chronic alcoholic but rather punishes conduct posing a public safety risk.\u201d People v. Kellogg<\/em>, (2004) 119 Cal.App.4th 593.\u201cIf Kellogg had merely been drunk in a public place in a manner that did not pose a safety hazard (i.e., if he was able to exercise care for his own and the public\u2019s safety and was not blocking a public way), he could not have been adjudicated guilty under section 647(f).\u201d Ibid. (emphasis in original). Accordingly, “in such a condition that he is unable to exercise care for his own safety or the safety of others” means being in a state of extreme drunkenness which deprives a person of his faculties, the ability to control one’s actions, to comprehend what one is doing or where one is. It means a person must not only be intoxicated, but to a high degree sufficiently severe and incapacitating as to cause a person to be dangerous to himself or to third persons. “[T]he arrest under Penal Code section 647, subdivision (f) was improper because the ‘described symptoms [slow speech, eyelids drooped, head hung low] indicated only that the defendant was under the influence of an opiate, and not that he was incapacitated as a result.'” People v. Lively<\/em>, (1992) 10 Cal.App.4th 1364, 1371, quoting People v. Rich<\/em> (1977) 72 Cal.App.3d 115, 122. Lively used the term ‘quite impaired’ to describe the level of intoxication sufficient for probable cause. Id., p. 1367. A lawful arrest under P.C. \u00a7647(f) requires more than being under the influence of alcohol; intoxication must result in “incapacitation.” People v. Rich<\/em>, 72 Cal.App.3d 115, 122; 139 Cal.Rptr. 819, 824 (1977). The evidence in Rich was that defendant’s objective symptoms were consistent with being under the influence, but that was insufficient probable cause for the disorderly conduct PC\u00a7647(f) arrest.<\/p>\n People v. Olson<\/em> (1971) 18 Cal.App. 3d 592, 96 Cal.Rptr. 13256 underscored the incapacitation element of the drunk in public statute. The defendant was found by police inside a stranger’s house (Voisan). Olson had come asking for someone who did not live there, swayed, spoke with slurred speech, staggered away slowly, and eventually fell asleep inside Voisan’s home. The officers found her non-communicative “passed out or asleep”, she arose when voices were raised and used a table to stand up; there was no scent of alcohol and pupils were slightly larger than normal; she needed assistance leaving the house and staggered even as steadied by the officers. Officers administered the heel to toe FST which was unsuccessful and then arrested the defendant for violating 647(f). The court found these objective symptoms supported the officer’s opinion (which was shared by Voison) that Olson was unable to care for her safety. It is for this same reason Krafft’s citation to People v. Blatt, 23 Cal.App.3d 148 (1972) and People v. Cruz<\/em> 44 Cal.App.4th, 636, 674 (2008) fails. The defendant in Blatt was found in her father’s store. She admitted to the arresting officer she was “stoned,” her words were abusive, and incoherent. Her speech was thick, and she had difficulty enunciating. Her eyes did not focus, and her head swayed back and forth. Id.<\/em>, p. 151. In Cruz, there was evidence the defendant was \u201cpretty drunk\u201d and slurred his speech. Id., p. 674. An Officer offers no such facts to support probable cause for arrest of Defendant for allegedly being in violation of Penal Code section 647(f). The burden of establishing probable cause in a warrantless arrest rests with the arresting officer. A warrantless arrest is presumed illegal in California (Ev. Code \u00a7 664). Dubner v. City and County of San Francisco<\/em> (2001) 266 F.3d 959, 965; Gilker v. Baker<\/em>, 576 F.2d 245 (9th Cir. 1978). The Officer has not met this burden nor has he rebutted the presumption of illegality. Thus probable cause for arrest on 647(f) grounds can only properly be decided by the trial.<\/p>\n