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A Lawyer Explains How Drunk You Have to Be to Get Arrested

"If you're being suspected of being drunk in public, say absolutely nothing."

Lauren Messman

Lauren Messman

As we all know, 2016 has been a total drag. With New Year's festivities rapidly approaching, you may find yourself wanting to overdo it with one more glass of champagne at the party or one more 40 in the park near your parents' house (depending on whether you're still home for the holidays). But before you drown your sorrows in gallons of nog and head out to a shitty bar in your hometown, you might want to remind yourself that drinking has all sorts of consequences, including potentially serious legal ones. 

It goes without saying—or it should—that you should never drink and drive. But there are other paths that go from the bottom of a glass to the floor of a jail cell, mostly having to do with the country's patchwork of public drunkenness laws. In an effort to help people make it through the rest of 2016 without ending up in the drunk tank, I spoke with Los Angeles–based criminal defense attorney Diana Aizman, who specializes in DUI and drug laws, about various hypothetical situations and which laws your drunkenness could run afoul of. 

VICE: Let's say you're out with friends, walking from one bar to the next, and you've had a few drinks. What kind of behavior can get you arrested for public intoxication? What do cops typically look for?
Diana Aizman: They're looking for a few things. One is if you're just unable to take care of yourself, if you're obviously stumbling or having trouble maintaining control of your faculties. I've had clients who have been arrested for just sitting on the curb and looking like they're about to pass out or have passed out. That's something that they will probably arrest you for. And then the other thing is if you're just belligerent, loud, obnoxious, in people's faces, in the police officer's face. Basically, if you're posing a danger to yourself or to anyone around you and you're unable to care of yourself in a reasonable fashion, a police officer has the discretion to arrest you for being drunk in public.

Do cops have to prove that you are drunk, or can they charge you for just "appearing" to be drunk or high?
If the officer believes that you're drunk and you happen to not be, then that's something that you take up later with a prosecutor or a jury trial, if necessary. If he or she genuinely believes that you are under the influence and unable to reasonably take care of yourself, or if you're engaging in anything that is destructive, then they can arrest you, and that's for you to defend yourself later.

Do they have to give you a breathalyzer test?
No, they don't, and they usually won't. They usually just base it it off of their own testimony.

What should you say to an officer if one stops you while you are drunk in public? Should you try to talk your way out of a ticket?
No! Keep your mouth shut and your head down. The worst thing you can do is try to talk yourself out of any situation with law enforcement because the only thing you're going to do is make it worse. If you're being suspected of being drunk in public, say absolutely nothing. Everything you say is going to be used against you, that's not just something you hear on TV. That's true.

Basically, what they're going to do is they're going to say that your speech is slow and slurred, that you reek of an alcoholic beverage, that you're unable to form sentences, that you were incoherent. The less you say, the better off you are. Easier for your defense attorney later on.

Can cops come into a bar and arrest you for being drunk?
Usually it's after you leave the premises, but [the law applies to] any public place, so it could be inside of a bar. It's rare that law enforcement would actually go into an establishment and arrest you for being drunk in public. Usually they'll wait for you to come out.

If you get too drunk on a plane, which state laws are you under the jurisdiction of?
It's wherever the plane has landed if you're already drunk after takeoff. So if you land in LAX, you're under the jurisdiction of Los Angeles. If you're on a plane and you're traveling to New York, once you arrive in New York, if you're drunk and disorderly, that's going to be under New York State law.

Obviously people should not drive drunk. But can you get charged for riding a bike, scooter, hoverboard, or skateboard while intoxicated?
Yes, absolutely. We call them BUIs here in California. It is a misdemeanor to ride a bicycle under the influence of alcohol. I'm sure that that would extend to other modes of transportation. I'm not sure about a skateboard, but I'm sure about a bicycle. Most likely a hoverboard or a scooter, anything that's motorized, that's for sure. Normally we recommend taking an Uber.

What does a public intoxication or a drunk and disorderly charge usually result in? Is it easy to fight? Can you face jail time?
It's a misdemeanor to be under the influence in public or drunk and disorderly. You can face jail time. I believe it's six months in California. And usually it results in what's called a diversion—if it's the only thing on your record and you're eligible for it, you can earn a dismissal if you have a lawyer who knows what they're doing. It's easy to fight if you know how to challenge the objective symptoms of intoxication, which is what the officer is going to be going off of when they're trying to establish your level of intoxication.

Let's say you commit another crime while you are drunk in public—vandalism, assault, theft—could you face a lesser charge because you were drunk at the time?
Yes. Voluntary intoxication is a defense to what are called "specific intent crimes." If you provide testimony that you were so intoxicated that you could not have possibly formed that level of intent, it could be a defense. For example, attempted murder is a specific intent crime. Whereas battery is not. I had a case that started out as an attempted murder, but my client was so drunk that we were able to get a reduction to assault.

This interview has been edited for length and clarity. 

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