Is a blood alcohol level or breathalyzer test required to prove a charge of being drunk in public in Cali?

Question

My cousin was thrown down onto the cement by several police officers and then arrested for being drunk in public. He was not informed that he was being arrested, nor was he questioned- throwing him onto the cement was the first sign he was being arrested. No one ever read him him rights although he was "interviewed" by the Sargent of the team. The law states that reading someone their Miranda Rights is only required when being questioned about the present crime they may be convicted of but what is the difference between being "interviewed" and being "questioned?" Also, can this charge hold even if his alcohol level was never tested?

Answer 1

First, let's calm down about the arrest. The arrest means nothing and the charges he's facing mean nothing ultimately because the prosecutor must prove their case in a court of law, which is where your cousin will have the chance to defend himself.

Miranda rights don't need to be read unless the police question you after arresting you. Proving that they weren't read is next to impossible, although a good attorney will bring this up in court anyway.

Excessive force when making the arrest can be backed up by witness testimony--I hope you got names and numbers of witnesses at the scene or else this too will be difficult if not impossible to prove as the police will LIE.

You can be arrested and charged with a DUI and public intoxication with or without a breathalizer test. Sad, but true. The police give breathalizers to enhance their case against you--it's one more piece of evidence they can use against you. So, they don't have it in this case which is good for your cousin. They will be going on officer testimony on how your cousin "acted drunk" to prove their case, along with any witnesses on the scene and statements they may have made. Your cousin's defense attorney will be able to cross examine that testimony.

The bottom line is they will absolutely (as always) try to get your cousin to cop a plea for a lesser charge like diturbing the peace, and in 95% of cases, they never go to trial because the defendant accepts the plea deal. If this did go to court and your cousin had a good attorney, I have no doubt his chances are good on beating all charges. The problem facing all defendants is -- is it worth it? The prosecutor knows it isn't worth it in most cases which is why 95% never make it to trial. You have to take off time to attend court, hire an attorney, and face possible stiff fines and sentences if found guilty. It's a risk many are unwilling to take.

Answer 2

You didn't say, so I will assume that you're not a witness to this. If you are not, then I will have to further assume you're talking the word of your arguably intoxicated cousin. Something to consider. Bottom line here is that it's not going to be possible to answer your entire question because there is a lack of detail. What do you mean he was interviewed, and when did that take place? The difference between being interviewed and questioned is not worth the time it would take to discuss it. Consider them the same thing, if you like. The crime of public intoxication in California is not about alcohol level. Blood alcohol levels are relevant in DUI prosecutions, but not in public intoxication prosecutions. The elements of public intoxication are that someone is intoxicated by drugs or alcohol to the point that they are unable to care for their safety or the safety one someone else. There's also something in there about blocking a sidewalk, but probably 99.99% of drunk arrests I've seen, made, or heard of were for someone just being overly drunk. So to the point, then: some people, as you probably know, don't hold their liquor very well. A six pack of beer and they are so wasted they can barely stand. Others can swig down a bottle of tequila and walk down the street like nothing was wrong. So it's not the level, it's the reaction. EDIT: I see you posed this question twice. I just saw the other one, and you should certainly ignore the first two answers. They are just plain wrong. Also, refusing to take a test that isn't required (breath test) isn't evidence that you are guilty, and doesn't substantiate the belief that you are. I don't know where this notion comes from, but it isn't accurate.

Answer 3

Great questions. First of all there is no difference between being "interviewed" and being "questioned." The only thing that matters is whether the questions are made to a person while in a "custodial situation." A custodial situation exists when "a reasonable person believes they are not free to go/terminate the police encounter." Therefore, any questions that were asked of your cousing while "restrained" were questions made while in a custodial situation. The mistake people make is that they believe the cops can't ask you questions unless you waive your Miranda rights (of which they "should" inform you of). But that's not necessarily true. Miranda doesn't protect you from questioning, what Miranda does protect you from is having your words used against you in Court if your words were taken from you without your waiving Miranda. Therefore, anything you say can be used against you - but when you say it you must knowingly be waiving your right to remain silent. If they don't read you Miranda, then you can't knowing waive Miranda and they can't use your answers. (I hope that makes sense).
As to your other questions, a conviction for public drunkeness can still be obtained without a breathalizer test. The test is just evidence (really good scientific evidence). But the police/prosecutors can present any "admissible evidence." In this case it sounds like what your cousin said can't be used against him - but what about what other people saw (witnesses) or the police observed (very credible witnesses on the stand), whether the bartender remembers serving him 15 beers etc . . . . All of that evidence comes in whether or not Miranda was violated. I'm sorry about your cousin's arrest. This is not a serious charge on its own but I understand how your cousing must feel. If charges are filed and you qualify get a Public Defender. They should be able to help here. Good luck!

Answer 4

he only had public intox . i know Fla. they call a law (public intox or and open container ) they arrest u and put u in jail for that .it is not a law, however they are ordinances ,( made up laws to appease the funding ) of local officials. i feel u on the way cops treated him . for pub intox is a fine or the day he served in jail for drying out time, for public intox there is no need for breathalyzer they didnt ask right and he didnt offer . interviewed , means he goes through booking and processing. asking questions is being questioned but that is for crimes the charge will hold, just pay the fine or get time served if he spent a day for first offense , fifteen days ,second offense also miranda rghts really mean nothin in this case because u dont need an attorney . plea guilty and pay the fine. same thing in ohio

Answer 5

I'm not completely sure about Cali, but in Mass you can be arrested for public intoxication even if you don't take a Breathalyzer. If you refuse it is an automatic fail. They can arrest just on the way you are acting or the way you eyes look ( glassy or dilated or pin sized pupils, as well as the sent of alcohol or marijuana). And Miranda rights are tricky. In most states they don't read them to you. In MA they are posted in the jail in a bunch of languages, so that's how they get away with it. Cops suck and they have way too much power over civilians. My best bet would be to talk to a lawyer ASAP and if you cant afford one stay on good terms with the court appointed lawyer. When your friend goes to court tell them to dress very neat and presentable and speak respectfully and politely to the judge. Address the judge as your honor and say yes or no sir or mam. In the end your fate is up to the judge not the cops. Oh yeah if the have injuries form the arrest take lots of pics ASAP and have good credible witnesses, not ones who have been to jail or arrested with them or before. Good luck!

Answer 6

Not really. I am not sure where in Cali, you are at but generally, public intoxication usually just results in a night in jail to sober up, and then you're sent home. As far as Miranda rights, there is NO LAW that says anything about when they are required. Miranda rights are not actual written law, they are case law based on Miranda v. Arizona, and are inferred from other constituional rights (the ones they tell you that you have such as right to remain silent -5th Amendment and Right to an Attorney - 6th Amendment). If the police have no intention of using what your cousin said in court against him, they do not need to advise him of his rights.

Also, pay attention to Garcia's 2nd paragraph about other evidence.

Answer 7

It never ceases to amaze me that people just cant suck it up and do the time for the crime, everyone wants a technicality, its technicalities that allow sexual predators to roam free and just for giggles most of them probably started out "drunk in public", Somewhat kidding of course....

Here is what I say, you can kick all you want and feud and hire and attorney, who will request a plea or carry it out into a jury trial of "your" peers, I think that's cute too, but anyhow back to the matter at hand, tell your cousin to suck it up, dont ask people on this blog, you are going to get stories, "copy/pasted" texts from CA law and websites that dont amount to jack, call an attorney and handle it through a degreed professional not the world wide web, why so people can get your hopes that your cousin will be spared when truth known that's not the case

Answer 8

Drunk in public charges would normally go along with another charge like disturbing the peace or disorderly conduct, or whatever they call it in Cali. If your cousin was being disorderly, and police noticed the smell of alcohol on his breath, that would be enough to prove being drunk in public.

Just having alcohol in the blood or on the breath would be insufficient evidence. Behavior, along with alcohol in the body is what signifies drunkeness.

A person's behavior must be a danger to the public for them to be guilty of being drunk in public.

If police used excessive force, your cousin may want to visit the district attorney's office and file a private criminal complaint against the police. He may also want to discuss the problem with the state attorney general's office:

http://ag.ca.gov/contact/index.php

Usually police can get away with whatever they want, and courts will protect them. That is a big problem that we need to fix.

Answer 9

I just need to know how drunk he was. Neither test is required if someone is obviously intoxicated. If he could not stand up, walk straight, or talk without slurring his speech, that is all the "field sobriety test" we need. Those tests are for determining someone who is borderline. It is fairly obvious when someone is wasted, fubar'd, or schnockered out of their minds.

Second, I am willing to bet he was mirandized and doesn't recall it. Or, he wasn't because there was enough evidence already to prove he was intoxicated. If you notice, field sobriety tests are usually administered before people are mirandized.

Also, he got taken down, probably in a text book manner, because he did something to provoke it. We don't mess around with intoxicated people. You never know what they are going to do. One wrong move, and they are on their face. If you don't like it, don't drink so much, or hang out with people who will keep you in line when you drink.

Answer 10

Firstly I'm no expert.
But, did they do a field sobriety test? Like touch your nose, walk a straight line, anything like that?
Some kind of proof, either a breath test or a field sobriety has to be done to determine if a person really is under the influence.
From what I've seen and understand the Miranda rights MUST be read at the time of arrest. Usually before or immediately after the person is in custody. Also, it probably would have been in your friends best interest to NOT say ONE WORD untill he had a lawyer present.