AZ Court of Appeals Rules: Public Drunkenness Not a Crime

Appeals Court says to prosecute public drunkenness, violates legislature’s decision to treat alcoholism and substance abuse as a disease, not a crime.

Appeals Court Decision: State of Arizona v. David Harold Cole 

On Monday May 5, 2014 an Arizona Appeals Court ruled unanimously on State of Arizona v. David Harold Coles, deciding that being drunk in public was not a crime. The Arizona Court of Appeals Division One overturned a criminal conviction resulting from violation of a Scottsdale AZ municipal ordinance, making it a crime to be “incapacitated in public” due to alcohol.

Criminal Court Proceedings Leading to the Appeals Court Ruling   

The Scottsdale Municipal court originally dismissed the charges based on State preemption over city ordinance.  The state law provides immunity for criminal prosecution of “common drunkards or being found in an intoxicating condition” when that is the sole criminal charge.

As a result of the dismissal, the City of Scottsdale appealed the dismissal to the Maricopa County Superior Court, who then reversed the Municipal Court’s decision, and remanded for continued prosecution.  The court acknowledged the general rules of pre-emption of the state law over the city ordinance.  However, at the same time, the Superior Court also accepted the prosecution’s argument that the language in the state law “being found in an intoxicated condition” failed to precisely include the words “under the influence of alcohol” which was contained in the city ordinance.  Therefore, the Maricopa County Superior court did not meet the test of being the same law as that recognized by the state.

The defendant then Appealed to the Arizona Court of Appeals –Division1.  The Appellate court felt that prosecution was in violated of a 1972 law which decriminalized public drunkenness, with the exception of statutory activities including driving vehicles which would be charged as Driving under the Influence (DUI) of alcohol or drugs; and operating machinery (OUI).   The Justices felt that the language in the state law under A.R.S.  2031 (A), (B) was sufficient to be interpreted as being “under the influence of alcohol” under the city ordinance language.

Analysis of the Appeals Court Ruling

The Appeals Court weighed heavily on the intent of the 1972 State Legislature Referendum which was targeted at treating alcoholism and substance abuse as diseases which should be treated as medical conditions, and not crimes that can be reformed through incarceration only.  The exceptions to criminal immunity dealt with other alcohol related crimes such as DUI, DWI, OUI, Underage drinking, and minor consumption.

The Court of Appeals Judge Kent Cattani wrote that it did not matter that the Scottsdale Ordinance applied solely “when it reasonably appears that he or she may endanger himself or other persons or property” This argument was rejected by the Appeals court because it was felt that this ordinance undermined State Law which decriminalized it.  Judge Cattani wrote that “Almost anyone who is under the influence of alcohol in a public place arguably presents a danger to himself or others.” Cattani pointed out that in 1972 the Arizona legislature eliminated criminal liability for public drunkenness “even where it reasonably appears the person may endanger himself or other persons or property”.

Cole’s conviction was appealed on the basis that the city ordinance conflicted with Arizona’s Criminal Laws Limitations under A.R.S. 36-2031.  In sum this revised law serves to provide criminal and civil immunity for persons found to be in an intoxicated condition as an element for penalties or sanctions.  There are exceptions to the immunity which included but were not limited to offenses such as drunk driving, and driving while impaired due to alcohol or drugs.

Further the law was very clear that no county, municipality or other subdivision politically could adopt or enforce the local laws, or city ordinance to circumvent this provision.

So what we have here is an illustration of the state’s exercising its right to supersede a city ordinance that conflicts with state law. The Appellate court cited that a state statute preempts a local ordinance when:

• The city creates a law in conflict with the state law;
• The state law is of statewide concern; and
• The state legislature intended to appropriate the field through a clear preemption policy”.   

Then in 1972, the Arizona Legislature amended this law with A.R.S. § 13-379 which decriminalized the general condition of being “under the influence of alcohol in a public place.” The exceptions to this decriminalization involved the same criminal offenses such as DUI, OUI, DWI, and other alcohol related specific crimes, other than public drunkenness in and of itself.

At the same time, the State of Arizona established alcohol and substance abuse treatment programs for alcoholism and substance abuse patients on a voluntarily basis, in order to obtain treatment if they are transported to an approved facility by police or other law enforcement officials  A.R.S. §§ 36-2021 to -2031 cited by the court.

Another argument that the Scottsdale City prosecution argued was important was the fact that the word “drinking” was absent in the state statute.  But the Appeals court refused to accept that argument as important.  To put it simply, it was more than a reach to make it an important issue, considering the focus of both the statute was on decriminalizing alcohol-related conditions. Therefore they conclude the words intoxicated and drinking as being one in the same for purposes of criminal immunity for the disease of alcoholism.

In summary, the appeals court was committed, to treating alcoholism as a medical issue, not a criminal issue, despite language differences in the city ordinance verses the state laws.  The dismissal of charges by the Appeals court was the product of this decision.

Impacts of Ruling

What we know at this point according to news reports is 1) that the Scottsdale City Attorney instructs police to immediately stop enforcement; and that the ruling Monday and 2) The Scottsdale case Appellate ruling will be legally binding on trial courts throughout the state of Arizona.  No information has been made available as to whether or not the city will file an appeal in the decision at a future date.

The Scottsdale Police reported to local media outlets that approximately 600 citations were given out over the last 12 months and that from here forward they will be in compliance.  They are still reviewing what additional steps will need to be taken, in order to fully comply in light of the Appeals Court Decision, or if they intend to appeal it.  The thing to keep in mind is that this immunity applies strictly to cases where no other laws have been violated.  For example, if a person is drunk in public, and acting disorderly, or disturbing the peace of others or businesses, they may still be arrested and prosecuted for disorderly conduct.  If they fail to follow police instruction, even though they are drunk, they may be arrested for failure to obey a police officer’s instruction or resisting arrest.  If they get in a fight, or altercation while drunk, they may still be arrested for assault or aggravated assault, even though they are drunk in public.