Disorderly Conduct and Public Intoxication

Disorderly Conduct

A person commits the offense of disorderly conduct when he or she knowingly or intentionally engages in an act that is offensive to the public order. Examples of disorderly conduct include using abusive language in a public place, making an offensive gesture in a public place, creating a noxious odor in a public place, making unreasonable noise in a public place, fighting in a public place, or discharging a firearm in a public place.

An act of disorderly conduct occurs in a public place if it produces an offensive consequence in the public place. A noise is unreasonable if it exceeds a certain decibel level.

If the offense of disorderly conduct is committed by abusing or threatening a person, a defendant may claim as a defense that the person provoked the abusive or the threatening conduct. If the offense is committed by discharging a firearm in a public place, the defendant may claim as a defense that he or she had a reasonable fear of bodily injury.

Where the offense of disorderly conduct involves the use of spoken words, the spoken words cannot constitute the exercise of free speech. The right to free speech is protected under the First Amendment of the United States Constitution. A statute is deemed to be overly broad and violative of the Constitution if it prohibits speech that is merely offensive to certain persons. The prohibited speech must constitute “fighting words,” which are defined as words that have a direct tendency to cause acts of violence by the person to whom the words are directed. Fighting words include profane, obscene, and threatening words. Whether the words are considered fighting words is a question of fact and not a question of law. In other words, it is a question that is to be determined by a jury.

The offense of disorderly conduct is normally punished as a misdemeanor.

Public Intoxication

A person commits the offense of public intoxication when he or she appears in a public place while he or she is intoxicated to the point where he or she may be a danger to himself or herself or to another person.

A public place is defined as any place where the public has access. It may include streets, highways, schools, office buildings, and shops. A private residence, a private yard, or a private driveway is not considered a public place.

Whether a person is a danger to himself or herself or to another person depends upon the circumstances. If the person threatens another person, obviously he or she presents a danger to the other person. If the person is so intoxicated that he or she is walking down the middle of a street, he or she presents a danger to himself or herself. The danger does not need to be immediate. It is whether the person has the ability to subject himself or herself to potential danger that is relevant.

A person who is charged with public intoxication may claim as a defense that he or she was prescribed alcohol or another substance by a licensed physician as part of his or her medical treatment.

The offense of public intoxication is not a lesser-included offense of driving while intoxicated.

The offense of public intoxication is normally punished as a misdemeanor.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.