Thursday, June 30, 2011

Indiana Supreme Court Deals Blow to Designated Driver Program; Passengers of DD Can Be Charged With Public Intoxication (w/Update)

On Tuesday, the Indiana Supreme Court handed down Brenda Moore v. State of Indiana.   A recitation of the facts are in order:
[Brenda Moore] had consumed two tall cans of beer at her sister's house on the evening of December 5, 2008.  A friend of [Moore's] brother asked for a ride to visit a friend.  [Moore] explained to him that she could not drive because she had been drinking but he could drive her car if he had a license.  The brother's friend then drove the [Moore's] car with [Moore] riding as a front seat passenger.  When an Indianapolis Metropolitan Police Officer pulled over the car because the license plate was not working, the officer determined that the driver did not have a valid driver's license and that [Moore] could not operate the vehicle because she was intoxicated. The car was stopped on a public roadway, East 13th Street in Indianapolis.   The officer observed that [Moore] had red, glassy, bloodshot eyes and slurred speech; she needed to lean against the car for balance; and she admitted that she had been drinking that night.  She admitted, "I couldn't walk. So I couldn't have driven."
Moore was charged with Public Intoxication, a class B misdemeanor.

An Indiana Supreme Court decision in 1966, Miles v. State, 216 N.E.2d 847 (Ind. 1966), declared that a person parked alongside a highway was in a public place for the purposes of the public intoxication statute.    Moore's argument was that considering the inside of a car to be a public place was against what the legislature intended when it passed the public intoxication law. She also argued that it was against the public policy of encouraging sober drivers to drive those who are too intoxicated to get behind a wheel.

State Senator R. Michael Young
 The Court's decision written by Justice Brent Dickson held that Miles is still good law and that if the General Assembly wanted to change the public intoxication law the legislature was free to do so. The lone dissenter on the case, Justice Robert Rucker, dissented arguing that the Court should overturn Miles and noted the strong public policy in favor of using designated drivers.
 State Senator R. Michael Young (R-Indianapolis) authored Senate Bill 156 last session that would have scrapped public intoxication as a stand-alone criminal offense.  Sen. Young, like a lot of people, doesn't believe simply being intoxicated in a public place should be a crime subjecting someone to arrest.  He believes that rather the issue should be whether they are doing something else objectionable, such as disturbing the peace or urinating in public.

Not surprisingly most police officers and prosecutors love the P.l. charge.  Their response is always that it is a "crime fighting tool."   They alwasy assure the public that if the discretion is given to them, in this case to arrest someone for simply being intoxicated in public, they won't abuse the discretion, that it will only be used in cases where the person is acting improperly.

Senator Young's bill passed the Senate 33-17 last session before ultimately dying because it wasn't heard in the House committee. The legislature needs to take the bill up again next session.  At the very least the General Assembly needs to pass a law to clarify that the legislature never intended that a vehicle be considered a public place for the public intoxication law.  People who are inebriated for acting responsibly by having a designated driver take them home.

UPDATE:  Interestingly in a press release the Indiana State Police is urging people to use a designated driver this July 4th weekend if they have been drinking.  

The situation creates an interesting dynamic.  Police officers generally prefer more discretion to arrest people.  On the other hand, they have for years been telling people to use a designated driver if they are intoxicated.  But since the Miles decision in 1966, confirmed again on Tuesday, police officers are telling those people to to commit a crime, i.e. public intoxication, when those intoxicated people ride home with a designated driver.


Cato said...

So being drunk is now a status crime.

Further, there is no reason that you can't be arrested for being drunk in a bar, since it is impossible for you to get from the bar to your house without going in public. It's an easy matter for the prosecutor to claim that it's harmless error to arrest you for being drunk in a bar, since the outcome of the case would be identical if they waited for you to go outside. Let's say that it's so close to closing time that you can't sit in the bar long enough to become sober.

under this ruling, the cops can come into any bar and have RAS to give a breathalyzer to everyone in the place who appears drunk.

Hotel bars might offer some sanctuary, since a defendant could always argue he was planning on getting a room.

This country sucks for freedom, but Indiana is far worse than most other places.

Paul K. Ogden said...

"Further, there is no reason that you can't be arrested for being drunk in a bar, since it is impossible for you to get from the bar to your house without going in public."

Actually I'm not sure a bar wouldn't be considered a public place.

Cato said...

I worry about as much. Under this ruling, how can a bar not be considered a public place?

Cato said...

Paul, tell me how looking down to get a potato chip off your pants will not be legally sufficient grounds for a cop to pull you over for texting?

"In my professional opinion, it appeared to me blah, blah, blah."

What Indiana court will not side with the cops on that?

How many Hoosiers will think that they have to prove their innocence of texting that they will willingly hand their phone to a cop for a warrantless search? How many people will admit to a phone in the car and will willingly unlock it for a cop?

How many Indiana judges will refuse to convict on texting charges absent proof from the state that texting was occurring at the moment of the citation?

How many prosecutors are going to subpoena cell phone records to sustain their burden of proof?

Eric Rasmusen said...

Here's another deserved nail in Justice David's non-retention coffin.

Had Enough Indy? said...

I haven't read the complete opinion here, but... It sounds like the police officer caused Ms. Moore to get out of the car and into the 'public' area. Didn't he, then, cause a crime to happen?

And, what difference is it if you have a DD for your own car or hire a cab to take you home?