Fisher Law Office

PUBLIC INTOXICATION: Does law enforcement have to give me a breathalyzer?

We represent a great number of people who have been charged with Penal Code section 647(f), Public Intoxication/Drunk In Public.  Often times, when discussing the circumstances of the arrest with our clients, our clients will tell us that the arresting officers did not give them a breathalyzer/breath test or any other test.  However, the law does not require that law enforcement test individuals when arresting them for Public Intoxication/Drunk In Public.


In California, in order for a jury to find someone guilty of Public Intoxication, they must find the following to be true beyond a reasonable doubt:


1) The defendant was willfully under the influence of drugs or alcohol;

2) The defendant was under the influence in a public place;


3a) The defendant was unable to exercise care for his/her own safety or the safety of others;


3b) Because the defendant was under the influence, he/she interfered with, obstructed, or prevented the free use of a street, sidewalk, or other public way.

(California Criminal Jury Instruction 2966.)


In order to prove the above elements, the jury may rely entirely on the observations of the arresting officer or any other witnesses.  There is no requirement under California Law that any test be given in order to establish guilt under this code section.  What this means is that an officer may simply testify at trial, for example, that he observed the defendant stumbling down the public sidewalk, bumping into people and/or things or having trouble staying on the sidewalk or observed the defendant lying unconscious on the sidewalk.  That officer would then only need to testify that observed symptoms of intoxication (odor of alcoholic beverage on breath, slurred speech, impaired thought process, etc.) and the jury could convict the defendant of Public Intoxication.  No evidence of testing would be necessary.


Practicing primarily in the college town of San Luis Obispo, we handle a high volume of Public Intoxication/Drunk In Public cases.  There are several ways to defend against these kinds of allegations.  Even in cases that where the defendant may clearly appear to be guilty of the allegations, there are several ways to negotiate settlements that leave our clients with no criminal convictions on their records, no fines to be paid, and no jail time to be served.  


If you or someone you know is being charged with Public Intoxication/Drunk In Public, please contact our office for a free consultation to see what we may do to assist.

No Comments

Leave a comment
Comment Information

How can we help you?

Bold labels are required.

Contact Information

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.


Privacy Policy

Fisher Law Office

1322 Morro Street
San Luis Obispo, CA 93401-4028

Phone: 805-706-0205
Fax: 805-542-0464
Map & Directions