“What sort of conduct will get you arrested for being drunk in public?” Oh. You are asking for a “friend,” are you? Well, in Carcamo et al. v. Los Angeles County Sheriff’s Department et al., the California Court of Appeal, Second Appellate District, issued a recent decision that reaffirms you need look no further than California Penal Code section 647(f) for the answer.

STAY FOR THE BREADSTICKS, LEAVE FOR THE FALSE ARREST

On Feb. 15, 2014 – yes, the wheels of justice turn at a snail’s pace – LaShun Carcamo and her then boyfriend, Anthony January, went on a date to Olive Garden. The record is silent on what they ate (free breadsticks are, of course, assumed), but a receipt from the evening shows they were given a free sample of wine and ordered no other alcoholic beverages. At the conclusion of dinner, Mr. January drove Ms. Carcamo to the home of a mutual acquaintance, Kelton Jolly, and found Mr. Jolly and his half-brother, Kirby Hales, sitting in a van legally parked outside the home. Mr. January got out of his legally parked car and was leaning against the van talking to Mr. Jolly when Los Angeles County Sheriff’s Department deputies pulled up with lights flashing.

The record of precisely what happened next is subject to conflicting testimony, but the established facts are that Mr. January was arrested almost immediately after stating he had not been drinking, and Ms. Carcamo and Mr. Hales (both passengers in their respective vehicles) were arrested after, according to the deputies, exhibiting balance problems, slurred speech and breath smelling of alcohol. All three were booked into county jail for public intoxication in violation of Carson Municipal Code and spent nearly twenty-four hours in custody before being released with no charges filed.

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PUBLIC INTOXICATION IS MORE THAN BEING INTOXICATED

Ms. Carcamo, Mr. January and Mr. Hales sued the sheriff’s department for false arrest and other causes of action, but lost their jury trial and appealed the case to the Second Appellate District. The issue on appeal was whether the public intoxication section of the Carson Municipal Code relied on by the deputies to justify arrest was preempted by state legislation and void as a matter of law.

That court held the Carson Municipal Code section void and in direct conflict with California Penal Code section 647(f), which makes public intoxication a crime only if a person is “unable to exercise care for their own safety or the safety of others… or interferes with or obstructs or prevents the free use of any [public place].” The Carson Municipal Code set a much lower threshold, summarized by the arresting deputy as, “if you’re intoxicated and you’re displaying the objective symptoms of being intoxicated, it’s a crime.” Where state law regulates public intoxication, “local legislation has no control over what state legislation covers.” In the absence of any evidence the three plaintiffs posed a danger to themselves or others or were obstructing a public place, the appellate court determined the deputies had no legal justification to make the arrests and ordered the jury verdict reversed.

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CONDUCT AND CONSEQUENCES

The Carcamo decision highlights the importance of drafting conduct-specific legislation where civil liberties are concerned. If the net is cast too broadly – i.e. the Carson Municipal Code section permitting arrest for mere intoxication in any public place – the innocent will be swept up in the haul. And to the question posed at the top of this column, the decision informs that so long as your intoxicated public behavior does not threaten yourself, others or the free use of a public place, arrest is unlikely. But in the court of public opinion, you may deservedly be declared a jerk for lesser drinking transgressions. Imbibe responsibly. Cheers.

Ravn R. Whitington is a partner at Porter Simon licensed in California and Nevada. Ravn is a member of the firm’s Trial Practice Group where he focuses on all aspects of civil litigation. He has a diverse background in trial practice ranging from complex business disputes to personal injury to construction law, and all matters in between. He may be reached at whitington@portersimon.com or http://www.portersimon.com