Thursday, March 23, 2006

I just can't let this one go!

I thought I lived in an America where the police couldn't arrest you under the guise that you "might" commit a crime, they could only arrest you if you actually committed a crime. I'm wrong.

Apparently in Texas they've exhausted their search for bad guys and are now arresting people in bars for being drunk! Undercover agents in Texas have gone into numerous bars and arrested people for being intoxicated. The spokesmoron for the Texas Alcohol Beverage Commission says "Being in a bar does not exempt one from the state laws against public drunkenness".

According to the Houston Chronicle:




People arrested for public intoxication "are not people who had a couple of beers with dinner. They are people who are so drunk that they caught the attention of a TABC agent," Beck said. TABC agents have the discretion to cite the person for public intoxication and release them to "a responsible party." Or, a person who is so drunk "that they may be a danger to themselves or others" can be arrested and taken to jail, Beck said.




Part of the problem with enforcing the state's code regulating alcohol sales is "people still think that a bar is place to go get drunk," Beck said. "People can go into bars and have fun with their friends and not become intoxicated to the point whether they may become a danger to themselves or others."


I suppose this will go to the Supreme Court so that like the convenient reinterpretation of "public use" in eminent domain abuse cases, we can find out what exactly "public drunkenness" really means, with an emphasis of course on "public".

Texas Penal Code states:




§ 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. (b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician. (c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor. (d) An offense under this section is not a lesser included offense under Section 49.04. (e) An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies.Added by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Amended by Acts 1997, 75th Leg., ch. 1013, § 12, eff. Sept. 1, 1997.



The fourth amendment of the U.S. Constitution states:




The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

There is however something courts have generally upheld which is known as "stop and frisk" which means police can take someone into custody with probable cause and without a warrant if they believe the person has committed a felony or misdemeanor in their presence. The thing is that the probable cause must be met under conditions which exist prior to being detained because whatever is found afterwards is not sufficient to establish a pre-existing probable cause.
So, in the cases in Texas, say the undercover agents go into a bar, and observe a few patrons having a few beers and laughing loudly, but not causing any trouble. Thinking that laughing loudly may indicate intoxication, the agents detain the patrons and take them into custody. Remember that Texas law states public intoxication is when "the person appears in a public place while intoxicated to the degree that the person may endanger the person or another."

So basically according to "Stop and Frisk" they at least have reasonable cause to detain these patrons. Right? All they need is a blood alcohol test that shows the blood alcohol level is above the legal limit which I believe is .08. If it is, then the patrons were violating the law.

The question I would have is, if the patrons weren't doing anything wrong and committing no crime, how could there be probable cause? Surely the blood alcohol test isn't probable cause because it was done after the agents detained them.

Any lawyers want to comment? Hey I could be wrong but this is the way I am interpreting it.

In any case I don't think probable cause matters here. It's simple, if you're in Texas and you're drinking excessively in a bar, and if you appear to be intoxicated to a degree where you may endanger yourself or someone else, you can be arrested. This seems very subject to interpretation.

Don't get me wrong, I'm not a fan of drunks wreaking havoc on society but it does appear to me that it's unconstitutional to arrest someone for a crime not yet committed. To me, that is definitely a violation of the fourth amendment. If I were a practicing attorney I'd be jumping at the bit to take that case.

1 comment:

  1. Anonymous3/23/2006

    The federal prison system has many inmates who were arrested, tried, and convicted on conspiracy. No crime was ever committed. They just thought about it. No it is not right. I am not in favor of drinking, but it is legal. In my opinion, this means you can not arrest someone for doing it as long as they are not driving, hurting someone else, or disturbing the peace.--ST

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