Texas Penal Code Section 49.02 governs public intoxication. The statute says Public Intoxication (or a PI) is committed where, ”…the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.”
The degree of intoxication is actually greater than the degree of intoxication necessary to be guilty of Driving While Intoxicated. For a DWI, the standard is that a person “does not have the normal use of their mental or physical faculties…”
A good way to think of it is that with a DWI, you’re deemed to be dangerous behind the wheel. For a PI, you’re deemed to be dangerous for no other reason that you’re in public.
It goes without saying that Public Intoxication charges are highly subjective. For this reason, police who need probable cause to make an arrest have a very easy time justifying an arrest for PI. It’s not uncommon at all for a police officer to make an arrest or two for public intoxication where the officer is dealing with crowd control to try and maintain order. Unfortunately, it’s also not uncommon for police to make arrests for PI when they become agitated and only have evidence of alcohol consumption.
Due to those types of situation constraints, it is very rare in PI cases that the officer does field sobriety tests or breath testing as they would in a DWI.
Public intoxication is a Class C misdemeanor punishable by a fine not to exceed $500, but can obviously look much nastier on your record.
Public Intoxication — a Higher Degree of Intoxication than DWI
For the state to convict you of public intoxication, they must prove your level of intoxication is even higher than it would be for a DWI.
Here’s why: Texas Penal Code 49.01(2) defines intoxicated (in relevant part) as, “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…”
The above definition of 49.01(2) is the definition used for Driving While Intoxicated in 49.04.
Here’s the difference, though — Public intoxication is governed by 49.02 and that code specifically says, “a person commits an offense if the person appears in a pubic place while intoxicated to the degree that the person may endanger the person or another.”
In other words, not only does the person have to be intoxicated (defined by 49.01(2)), but they ALSO must be so to the degree they may “endanger the person or another.”
A simple way of putting it is that to be convicted of DWI, a person must have consumed alcohol to the extent they are dangerous behind the wheel of the car — to get a PI, they must be dangerous merely by being in public. Obviously it makes sense that there is a stricter standard for operating a motor vehicle.
Public Intoxication cases (or PI’s) are class c misdemeanors — meaning they’re lower offenses than DWI. PI arrests are highly subjective and frankly often done for crowd control reasons or even in cases where the passenger in a car is highly intoxicated (and the driver is getting hooked-up for DWI). Many officers know that their arrests may very well not end up in convictions, but they feel they are necessary anyway and are supported by the lower burdens of probable cause.
Jeremy F. Rosenthal, Esq.