Mark Thompson Criminal Law Blog on Lawyers.com

The State of Iowa has the crime of Public Intoxication, which prohibits that a person be 1) in public and 2) intoxicated (or simulating intoxication). When these criteria are met, the officer can effectuate an arrest and perform a search.

There is not a whole lot to add here. The legislature has not defined “intoxication.” Iowa case law has not been helpful either. The very few cases on point do not get much more in depth than talking in circles and saying “is intoxicated” once again.

Contrary to college myth, there is no magic BAC number when it comes to Public Intox. You might think that blowing a 0.07 will save you from arrest, but it does not. An officer can still feel you are “intoxicated” despite the BAC result.

But on the other hand, (unlike with OWI) blowing above 0.08 does not automatically mean a conviction. However, I’ve never seen a case where this came into play.

As far as public, it’s not a matter of defining what “public” is, it’s easier to say what it is not. There are two answers: A private residence, and a private car. Any place else is “public.” This of course includes streets, sidewalks, bars, stores and shared apartment or dorm hallways.

With these two elements of the offense, an officer can place just about any student under arrest downtown between 10:00 p.m. and 3:00 a.m. on a weekend. So what change am I looking for?

Why not switch to Wisconsin’s “Drunk and Disorderly” statute? That “disorderly” element would make our statute much more fair. The whole point of a Public Intoxication statute is to protect people from that “disorderlyness” that may accompany intoxication, not the intoxication itself.

The added protection that exists in Wisconsin allows people that may have had too much to drink go on their way without fear of arrest (or deferred judgment/probation violations). And it keeps the citizens just as safe.

Please take a look at www.thompsonjustice.com or www.thompsonjustice.com/blog for more information.