O.C.G.A. § 16-11-41 (2019)

Annotations

Cross references. - Intoxication as relieving person from criminal responsi-

bility for actions, § 16-3-4. Driving under influence of alcohol, § 40-6-391.

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Penal Code 1910, § 442 are included in the annotations for this Code section. Constitutionality. - O.C.G.A. § 16-11-41 is not vague and overbroad either on its face or as applied. Welch v. State, 251 Ga. 197, 304 S.E.2d 391 (1983). Purpose of former Penal Code 1910, § 442 was to protect public streets, highways, and private residences not so much from presence of drunkards as from conduct of drunkards as described in that section; in other words, a person while intoxicated can be on the public streets or highways, or within the curtilage of private residences, without violating the law, provided the person does not then and

there make manifest the person’s drunken condition by some disorderly conduct as set out in the section. Ramey v. State, 40 Ga. App. 658, 151 S.E. 55 (1929) (decided under former Penal Code 1910, § 442). Former Code 1933, § 26-2607 (see now O.C.G.A. § 16-11-41) was designed as protection against a drunkard’s conduct and not the drunkard’s mere presence. Scarborough v. State, 231 Ga. 7, 200 S.E.2d 115 (1973). Probable cause to arrest. - Police officer had probable cause to arrest the defendant for public drunkenness after the officer testified that the defendant was intoxicated, was visible from the public street, was acting loudly and boisterously, and was so loud that people leaving a nearby church could have heard defen-

dant. United States v. Floyd, 281 F.3d 1346 (11th Cir. 2002). Public place. - ‘‘Public place’’ element of the statute is broadly interpreted to include any place where the defendant’s conduct may reasonably be viewed by people other than members of the defendant’s family or household; thus, a defendant who is on private property by invitation of the property owner can be found to be in a public place. United States v. Floyd, 281 F.3d 1346 (11th Cir. 2002). Outward manifestation must be shown. - Supreme Court has construed O.C.G.A. § 16-11-41 to require that the accused not only be or appear intoxicated, but that the accused manifest this condition by boisterous, vulgar, loud, profane, or unbecoming language. The Court of Appeals has further held that unless one of these outward manifestations or acts is present, no violation of the law has occurred. Welch v. State, 251 Ga. 197, 304 S.E.2d 391 (1983). To effectuate a valid arrest, arrestee’s drunken condition must be manifested by boisterousness, or by indecent condition or act, or by vulgar, profane, loud, or unbecoming language. Adams v. State, 153 Ga. App. 41, 264 S.E.2d 532 (1980), overruled on other grounds by State v. Thackston, 289 Ga. 412, 716 S.E.2d 517 (2011). Merely being intoxicated is not sufficient to satisfy requirements of public drunkenness statute, for condition must be manifested by ‘‘boisterousness, or by indecent condition or act, or by vulgar, profane, loud, or unbecoming language.’’ Peoples v. State, 134 Ga. App. 820, 216 S.E.2d 604 (1975). It is no crime merely to be intoxicated. Ferguson v. City of Doraville, 186 Ga. App. 430, 367 S.E.2d 551 (1988). Mere drunkenness in public place was not enough for conviction under former Code 1933, § 26-2607 (see now O.C.G.A. § 16-11-41); to complete the offense, drunkenness must be made manifest by at least one of the ways specified in that section. Scarborough v. State, 231 Ga. 7, 200 S.E.2d 115 (1973). Offense of public drunkenness can be manifested only in manner designated by former Code 1933, § 26-2607

(see now O.C.G.A. § 16-11-41). Young v. State, 155 Ga. App. 598, 271 S.E.2d 731 (1980). Mere drunkenness, manifested by extreme stupor or deep sleep, does not violate law, for state penalizes only that drunkenness which is manifested in manner specifically pointed out by former Penal Code 1910, § 442. Ramey v. State, 40 Ga. App. 658, 151 S.E. 55 (1929) (decided under former Penal Code 1910, § 442). Drunkenness manifested by extreme stupor or deep sleep is not violation of state law. Peoples v. State, 134 Ga. App. 820, 216 S.E.2d 604 (1975); Moore v. State, 155 Ga. App. 299, 270 S.E.2d 713 (1980). Merely staggering is not sufficient manifestation to justify arrest under former Code 1933, § 26-2607 (see now O.C.G.A. § 16-11-41). Young v. State, 155 Ga. App. 598, 271 S.E.2d 731 (1980). Staggering, accompanied by loud and boisterous conduct. - Where unimpeached testimony of officer was that defendant, in addition to staggering, was loud and boisterous prior to defendant’s arrest, there was sufficient probable cause for defendant’s warrantless arrest. Young v. State, 155 Ga. App. 598, 271 S.E.2d 731 (1980). Defendant’s loud and boisterous actions in defendant’s backyard and driveway were sufficiently ‘‘public’’ to support a charge of public drunkenness. Ridley v. State, 176 Ga. App. 669, 337 S.E.2d 382 (1985). Indecency of condition or act is question of fact. Scarborough v. State, 231 Ga. 7, 200 S.E.2d 115 (1973). ‘‘Indecent condition or act’’ does not include concept of recklessness, nor necessarily that of impropriety, unless the impropriety is such as to offend sentiments of delicacy and modesty universally recognized in civilized communities. Scarborough v. State, 231 Ga. 7, 200 S.E.2d 115 (1973). Indecency of condition or act involves notions of public decency. - When conviction rests on ‘‘indecent condition or act’’, the question comes down to whether the defendant’s condition was such as to offend public decency. Scarborough v. State, 231 Ga. 7, 200 S.E.2d 115 (1973).

Public drunkness not included in crime of public indecency. - With regard to the defendant’s conviction for felony public indecency for urinating in public, the trial court’s refusal to charge the jury on public drunkenness as a lesser included offense of public indecency was not error because the crime of public drunkenness requires proof that the defendant was intoxicated, which the crime of public indecency does not; the crime of public drunkenness does not require a lewd exposure of sexual organs, which is required by the crime of public indecency; and, the crime of public indecency requires proof of exposure of sexual organs, which the crime of public drunkenness does not; therefore, the offense of public drunkeness was not included in the crime of public indecency. Loya v. State, 321 Ga. App. 430, 740 S.E.2d 382 (2013). There was sufficient evidence to sustain defendant’s conviction of public drunkenness, where defendant was exiting a private club with defendant’s spouse when defendant threw a beer cooler which struck the spouse, defendant smelled of alcohol, and defendant was ‘‘cussing,’’ ‘‘talking pretty loud,’’ or was ‘‘irate and acting unreasonably.’’ Patterson v. State, 181 Ga. App. 68, 351 S.E.2d 503 (1986). Officer had probable cause to arrest a defendant for public drunkenness and for obstruction of a police officer. Loudly playing a car radio in the early morning hours and quarreling with police officers was sufficient to constitute boisterousness for purposes of O.C.G.A. § 16-11-41, and once

the defendant refused to exit the defendant’s vehicle and physically and verbally threatened an officer, officers had probable cause to arrest the defendant for obstructing a police officer under O.C.G.A. § 16-10-24. Martin v. State, 291 Ga. App. 363, 662 S.E.2d 185 (2008). Not a lesser included offense of DUI. - Public drunkenness is not, as a matter of fact or law, a lesser included offense of driving under the influence of alcohol to the extent it is less safe to drive. State v. Tweedell, 209 Ga. App. 13, 432 S.E.2d 619 (1993). Conviction of obstruction despite acquittal of public drunkenness. - Because the police officer had grounds to arrest defendant for public drunkenness and was in the process of making the arrest when defendant shouted at the officer and attempted to walk away, conviction of defendant for misdemeanor obstruction was proper even though defendant was acquitted on the charge of public drunkenness. Williams v. State, 228 Ga. App. 698, 492 S.E.2d 708 (1997). Cited in Moore v. State, 133 Ga. App. 28, 209 S.E.2d 662 (1974); LaRue v. State, 137 Ga. App. 762, 224 S.E.2d 837 (1976); Evans v. City of Tifton, 138 Ga. App. 374, 226 S.E.2d 471 (1976); Goldstein v. City of Atlanta, 141 Ga. App. 701, 234 S.E.2d 344 (1977); Davis v. State, 147 Ga. App. 107, 248 S.E.2d 181 (1978); Latty v. State, 154 Ga. App. 751, 270 S.E.2d 38 (1980); Johnson v. State, 201 Ga. App. 88, 410 S.E.2d 189 (1991); Simmons v. State, 281 Ga. App. 654, 637 S.E.2d 70 (2006); Tomsic v. Marriott Int’l, Inc., 321 Ga. App. 374, 739 S.E.2d 521 (2013).

OPINIONS OF THE ATTORNEY GENERAL Probate courts are without jurisdiction to try cases or to accept cash

bonds for the offense of public drunkenness. 1984 Op. Att’y Gen. No. U84-13.

RESEARCH REFERENCES Am. Jur. 2d. - 12 Am. Jur. 2d, Breach of Peace and Disorderly Conduct, § 9. ALR. - Location of offense as ‘‘public’’ within requirement of enactments against drunkenness, 8 A.L.R.3d 930.

Validity, construction, and effect of Uniform Alcoholism and Intoxication Treatment Act, 85 A.L.R.3d 701.