“Son, you are under arrest for the offense of Public Drunk!”
“Officer, I swear, it wasn’t me! I think it was that guy over there coming out of the bar.”
“What guy?”
“That guy that will be coming out of the bar any minute.”
That above exchange actually occurred between a Police Officer and a student several years ago. I was Municipal Judge of Oxford, the Officer was with the Oxford Police Department, and, the student was a second semester freshman that was pretty well convinced that he had a handle on life and that his parents had been wrong, as he had always suspected, for these many years.
The student had just returned from an extended school holiday, most of it spent on a beach but the last day or two was spent at home. Ringing in his ears was that speech given by so many fathers at dinner before the student embarked upon his return to Ole Miss the next day. It’s the speech that the parents had heard from their parents and is the most detested speech that a student will ever hear.
The speech generally starts off with the father having had to walk 40 miles each way, in the blinding snow, to go to school (This, in spite of the fact that the school was located on the Mississippi Gulf Coast.) The father, as a child, had existed without most of the important necessities of life, but prevailed in spite of it. The student’s mother is telling the father to calm down and that he is ruining the meal that she had worked hours to prepare.
The student, having been chastened by his father because of his inability to think before doing something, is now about to prove his father correct, at least in this occurring event.
“Officer, I’ve only had two beers tonight.” “Why are you guys always picking on students if it has to do with alcohol?” “Why is it always us?” “Don’t you have anything better to do, like, go out and catch a bank robber or something!”
“Well son, I’m not too worried about catching a bank robber right now, since the banks are closed.” “However, I am concerned about the fact that you seem to be under the influence of alcohol.”
“Impossible!” bellows the student. “You can’t get drunk on three or four beers!” “Son, I thought you had said you only had two beers tonight.” “Well, two beers don’t count because they were just shots.” “You’re telling me that you have had two beers and two shots tonight?” “No, I’m telling you that I have not had more than four or five beers and maybe a shot after each beer.”
It is most unfortunate for the student as the officer watches him go out of his way to incriminate himself.
In Mississippi, when a Police Officer is determining whether or not an individual should be arrested for Public Drunk, the officer is listening to and studying the individual to see if there is “slurred speech, red glassy eyes, staggered walk, and, the smell of alcohol coming from the breath or person of the individual.” For the offense of Public Drunk, no, there are no independent “tests” given to determine whether or not the accused is actually guilty of that offense.
Some totally uninformed students will get quite upset with the officer because the officer will not provide to them a “breath test”. The CMI 8000 Intoxilyzer, at the jail, and the Alco Sensor (Portable Breath Test), are to be used only concerning those individuals suspected of committing the offense of Driving Under the Influence of Alcohol (DUI). There are no such independent mechanical tests given to individuals suspected of committing the offense of Public Drunk.
Further, the tests used to determine whether or not an individual is under the influence of alcohol, such as the One Leg Stand Test, Horizontal Gaze Nystagmus Test, and the Walk and Turn Test, are reserved, again, only for individuals suspected of committing the offense of Driving Under the Influence of Alcohol (DUI).
I have been asked, so very many times, in the classroom, as well as in my office, what must happen before a person can be arrested and convicted for the offense of Public Drunk.
Again: Did the officer observe and later testify that the suspect had a staggered walk, slurred speech, red glassy eyes, the smell of alcohol on his breath or his person, or a combination of the aforementioned? Did the officer determine that it was in a public place? And, did the officer determine that it was in the presence of two or more persons? Wait – Don’t be too hasty with your conclusion. Example, an individual walking by the officer and the suspect on the sidewalk as the officer is approaching the defendant to make reasonable inquiry, that person walking by could be considered as a “person.”
Also, please consider, that it is presumed that the arresting officer has no vested interest in the outcome of the case, but, there can be a presumption that the accused definitely has a vested interest in the outcome of the case.
Question by a student: “Can’t we just go out and have a good time?”
Answer: “Sure you can.” Just remember one thing – Don’t get drunk, in public, in the presence of two or more persons. Also, just remember a few small things: A public place can be a sidewalk, can be in the grocery store, in a motor vehicle, and, yes, even in a bar; in the presence of two or more persons can even include the officer; and, whether or not the person is drunk is determined by the officer. That determination is based upon whether or not the officer sees staggered walk, hears slurred speech, observes red glassy eyes, and notices the smell of alcohol on the breath or the person of the suspect.
Finally, do not try telling the officer how important your father is and please don’t call the officer any unwanted name. You know exactly the name not to call the officer.
Dwight Ball is a former special agent with the Federal Bureau of Investigation and a longtime Oxford attorney who taught the Mississippi DUI Law course and five different Criminal Law and Criminal Procedure courses. He can be reached at dwightnball@dwightnball.com.
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