Virginia Drunk in Public / Public Intoxication Laws and Defenses

Virginia Criminal Defense Attorney's Explanation of Virginia Law

Public Intoxication Defense Attorney (703) 870-6868

This article is written by criminal defense attorney Marina Medvin, who is located in Alexandria, Virginia, and Fairfax, Virginia. She represents individuals charged with the crimes described below in Fairfax, Alexandria, Arlington, Falls Church, Vienna, Manassas, and Prince Prince William. Please call (703)870-6868 for a consultation request.

DRUNK IN PUBLIC or PUBLIC SWEARING / INTOXICATION IS A MISDEMEANOR CRIMINAL OFFENSE. If you just pay the fine online you are in effect pleading guilty to the charge. As such, if you wish to avoid a conviction for this crime, you should review your case with an attorney.

THE CRIME OF BEING DRUNK IN PUBLIC

Public intoxication or swearing is noted as a “ticket” offense, with a small financial penalty on the yellow summons that you are given by then police. This oversimplification ignores the most important part of the “ticket” – that if you pay it, you are pleading guilty to the misdemeanor criminal offense.

STANDARD OF PROOF FOR A CRIMINAL CONVICTION

Virginia drunk in public law is found in Virginia code § 18.2-388. “If any person profanely curses or swears or is intoxicated in public, whether such intoxication results from alcohol, narcotic drug or other intoxicant or drug of whatever nature, he shall be deemed guilty of a Class 4 misdemeanor. In any area in which there is located a court-approved detoxification center a law-enforcement officer may authorize the transportation, by police or otherwise, of public inebriates to such detoxification center in lieu of arrest; however, no person shall be involuntarily detained in such center.”

As with any criminal matter, the government must prove beyond a reasonable doubt that the person charged with this crime is in fact drunk or cursed in a public area. The prosecution must prove to essential elements to convict you of being drunk in public: 1) the the crime took place in public, and 2) that you were intoxicated.

Virginia courts define the meaning of “in public,” as a place in open view, visible to the community. This includes an outdoor area owned by you but that is visible to others, such as a porch or a front yard. Virginia has a wide-reaching view of what is public.

A person is “intoxicated” under Virginia law only if he “has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior.” Va. Code Ann. § 4.1-100. This part of the accusation provides some argument leeway. The police officer must testify that he observed you behaving in a manner consistent with an intoxicated person – some outward signs of having consumed alcohol. “His eyes were glassy and bloodshot, his breath smelled strongly of alcohol, and he admitted that he had been drinking” would NOT be enough for a conviction because behavior, not appearance, is punished under this code section. Thus, the strong smell of alcohol alone is not enough to show that someone is intoxicated for purposes of this law.

Police do not have to give you a breath test to determine if in fact you were intoxicated under the VA charge. It is enough for you to exhibit intoxicated behavior.

Virginia prosecutors get involved on the cases once defense lawyers make an appearance on behalf of the accused. Many prosecutors will work with the defense attorney to come up with a plea deal / bargain that may eliminate a conviction for a criminal offense.

Local Ordinances:

VA Code 18.2-388 is the State law. Counties have adopted their own versions of the law as well. Some of the language differs, changing the way that the law applies.

Fairfax County: Section 5-1-1. – Drunkenness and profane swearing.
(a) If any person profanely curse or swear or be drunk in public he shall be deemed guilty of a Class 4 misdemeanor.
In any area in which there is located a court-approved detoxification center, a law enforcement officer may authorize the transportation, by police or otherwise, of public inebriates to such detoxification center in lieu of arrest; however, no person shall be involuntarily detained in such center.
(b) If any person shall be convicted for being drunk in public three (3) times within one (1) year, such person shall be guilty of a Class 3 misdemeanor.

City of Alexandria: Sec. 13-1-5 – Public intoxication.
If any person is intoxicated in public, whether such intoxication results from alcohol, narcotic drug or other intoxicant or drug of whatever nature, he shall be deemed guilty of a class 4 misdemeanor. If there is a court-approved detoxification center in the city or a neighboring jurisdiction, a law enforcement officer may authorize the transportation, by police or otherwise, of a person who is in violation of this section to such detoxification center in lieu of arrest; provided, however, that no person shall be involuntarily detained in such center.

County of Arlington: § 17-7. Public Drunkenness and Profanity.
A. It shall be unlawful for any person to be drunk or profanely to curse or swear in any public place in the County.
B. Any person convicted of such public drunkenness or profanity may be punished by a fine not to exceed one hundred dollars ($100.00); provided, however, if any person shall be convicted for being drunk in public three (3) times within one (1) year in the Commonwealth of Virginia, upon the third such conviction or any subsequent conviction for such offense within the period of one (1) year, he shall be punished by a fine not to exceed five hundred dollars ($500.00).

*This article is for your personal information only and is not intended as legal advice. Nothing herein shall create an attorney – client relationship. This area of the law is very complex. Every case is different and the information contained herein is general. This information is not intended to be legal advice. Nor is this material intended to replace consultation with a lawyer. Always consult a licensed lawyer for your particular case. Call 703.870.6868 for a consultation.