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Public Intoxication


California Penal Code §647(f) makes it illegal to be “drunk in public.” That said, just because you go to a bar or have one too many drinks doesn’t mean you have violated the law. There are certain requirements that a prosecutor must prove before you can be convicted of public intoxication.

What does the prosecutor need to prove?

To prove the defendant is guilty of public intoxication the prosecutor must prove the following elements beyond a reasonable doubt:

  1. The defendant was willfully under the influence of alcohol and/or a drug;

  2. When the defendant was under the influence, (he/she) was in a public place; AND

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

  4. The defendant interfered with, obstructed, or prevented the free use of a street, sidewalk, or other public way.

What are the penalties if convicted of public intoxication?

Penal Code §647(f) is a misdemeanor offense. If convicted, a defendant faces the following punishment or penalties:

  1. Up to 6 months in the county jail;

  2. A fine not to exceed $1,000; or

  3. Both the fine and imprisonment.

In lieu of jail time, a judge may grant you informal probation, also called misdemeanor or summary probation. Informal probation for a violation of Penal Code §647(f) can last no more than one year.  Additionally, rather than having you pay a fine, a judge may offer you the option of completing community service.

What are some defenses to a public intoxication charge?

A skillful attorney can often successfully have a public intoxication charge reduced or dismissed using one of the following common defenses:

  1. Public Place – As stated, to be convicted of public intoxication the prosecutor must prove that you were intoxicated in a public place. A public place is defined as a place that is open and accessible to anyone who wishes to go there. For example, imagine you had been drinking on your front porch with some friends. Also imagine that your porch is visible to the public and someone becomes concerned about your drinking and calls the police. As long as you remain on your property, the responding officers would not be permitted to arrest you for public intoxication.

  2. Willfully Intoxicated – One key element to public intoxication is that you willfully ingested the alcohol or drugs. In other words, you must have intended to consume the alcohol or drugs. Thus, if someone ingests alcohol or drugs without knowing they were doing so, then that person would not be culpable for public intoxication.

  3. No Evidence of Intoxication – Another common defense to a public intoxication allegation is that you were not actually under the influence to the degree required by law. To be guilty of public intoxication, you must be unable to exercise care over yourself or others due to your intoxication. Thus, the prosecutor must prove that your were a danger to yourself or others.

Will a public intoxication conviction show up on your record? 

The short answer to this question is, it depends. If you are convicted of public intoxication, then the conviction will go on your record. However, there are ways of preventing a conviction or expunging a conviction to remove it from your criminal record.

1. Negotiation with DA or Judge:

Drunk in public is a relatively low-level crime. It is often a waste of court resources to go through an entire trial just to convict someone of being drunk in public. To remedy the imbalance, prosecutors and judges are often willing to negotiate with defense attorneys. In doing so, a skillful defense attorney can often resolve the case without having the defendant plead guilty. If the defendant never pleads guilty or is never found guilty at trial, then (s)he would not have to worry about a criminal conviction on their record.

2. Misdemeanor Diversion

Another way to prevent a conviction for public intoxication is to request that the court place the defendant on misdemeanor diversion. Misdemeanor diversion – also called §1001.95 diversion – allows a judge to continue a criminal case for up to two-years. While the case is continued, the judge will order the defendant to complete certain tasks related to the offense.

Where a person is on misdemeanor diversion for a public intoxication offense, terms may include some of the following:

  • Violate no new laws;

  • Attend A/A meetings;

  • Perform community service; and/or

  • Pay restitution for any damages caused.

If a defendant successfully completes misdemeanor diversion for the entire period the case was diverted, then the judge is required to dismiss the defendant’s case. Again, since misdemeanor diversion does not require a defendant to plead guilty before participating in the program, the defendant will not suffer a conviction on their criminal record.

3. Expungement

If the above options are unsuccessful and the defendant ultimately suffers a conviction, then the defendant may be able to expunge the conviction. To learn more about if and when you would be eligible for an expungement please visit the expungement page.


Attorney John-Patrick Mullen-Lujan has extensive knowledge and experience handing criminal cases throughout Southern California. If you or someone you know has been charged with public intoxication, call Attorney Mullen-Lujan to schedule your free consultation today.

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