Restoring Reason

Some of the loudest outcry after the bar check conducted at the Rainbow Lounge has been in regards to whether someone can be arrested inside of a bar because they are drunk. The easy answer to this query is that, yes, patrons can be arrested inside of a bar.

Further fury has developed over whether a bar is considered to be a public location. This is another easy answer, and was addressed in the previous section – by virtue of carrying a liquor license, bars are considered unequivocally to be public places in the state of Texas. This includes locations that require membership in order to be admitted.

In order for a bar patron to capture the attention of a peace officer, their behavior has to be so egregious and so indicative of intoxication that the police officer would be negligent not to cite or restrain them. The Texas Penal Code, Title 10, Chapter 49, Section 49.01 subsection 2 offers:

(2) "Intoxicated" means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.

Further, Section 49.02 offers:

Sec. 49.02. PUBLIC INTOXICATION. (a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

Peace officers rely upon cues to determine public intoxication. They include:

• loud and obnoxious behavior – calling attention to oneself leads to higher scrutiny under the law;
• runny, red and unfocused eyes – physical indicators of intoxication;
• lack of balance and coordination – more physical indicators of intoxication;
• inappropriate or offensive actions – psychological indicators of actions that would not have been taken by sober individuals.

Some bar patrons – both those who were arrested and those who were not – have complained that officers did not conduct field sobriety tests or administer Breathalyzer exams before making public intoxication arrests. Neither Breathalyzer exams nor field sobriety tests are required by the law in order to make an arrest based on public intoxication. Further, the potential danger posed by an intoxicated individual against himself or another does not have to be imminent. In Escamilla v. Texas, the Sixth Appellate District Court of Texas relied upon the following characteristics to indicate public intoxication: trouble walking, loud and belligerent demeanor, smelled strongly of alcohol, and physically unbalanced. The Court also explains a variety of precedent setting court cases that uphold the applicability of public intoxication charges and convictions. They say:

A person commits the offense of public intoxication if the person appears in a public place while intoxicated to the degree that person may endanger himself or herself or another. Tex. Pen. Code Ann. § 49.02(a) (Vernon 2003); Simpson v. State, 886 S.W.2d 449, 454 (Tex. App.—Houston [14th Dist.] 1994, pet. ref'd). The danger need not be immediate; potential danger to oneself or others suffices to show endangerment. Dickey v. State, 552 S.W.2d 467, 468 (Tex. Crim. App. 1977); see also Balli v. State, 530 S.W.2d 123 (Tex. Crim. App. 1975), overruled in part on other grounds by Chudleigh v. State, 540 S.W.2d 314 (Tex. Crim. App. 1976). Under Texas law, any area to which the public, or a substantial group of the public, has access, is a public place. See Tex. Pen. Code Ann. § 1.07(a)(40) (Vernon Supp. 2005); Loera v. State, 14 S.W.3d 464, 467 (Tex. App.—Dallas 2000, no pet.). When reviewing an arrest for public intoxication, an appellate court must decide whether the arresting officer had probable cause to arrest; we must determine "whether the officer's knowledge at the time and under the circumstances would warrant a prudent person's belief that appellant had committed or was committing the offense." Banda v. State, 890 S.W.2d 42, 52 (Tex. Crim. App. 1994).

When individuals have an issue with a law, it is appropriate for them to lobby legislators. Legislators have the opportunity to change the language of the law so that it better represents the welfare of those affected. Peace officers merely administer the law as it is written.

Disclaimer: The information posted on this site has not been prepared or approved by any police agency, police association, or legal or law enforcement professional. It has been compiled through research of already available information and should not be relied upon as legal advice or as findings of an investigation.

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