Arizona Appellate Court Strikes Down Scottsdale Public Intoxication Ordinance

The_wine_is_a_mocker_1663-1664_Jan_SteenThere is an interesting ruling out of Arizona where an appellate court has overturned a Scottsdale municipal ordinance barring people from being intoxicated in public. The ordinance was found to be in conflict with a 1972 state law that prohibits municipalities from criminalizing “being a common drunkard or being found in an intoxicated condition.” The intent behind the law was to recognize alcoholism as a disease as opposed to a crime. The case is Arizona v. Coles, 2014 Ariz. App. LEXIS 78 (May 6, 2014).

In 2011, David Harold Coles was cited in Scottsdale under Scottsdale City Code (“S.C.C.”) section 19-8(a) for being “incapacitated by alcohol in public.” The municipal court agreed with him that the citation conflicted with Arizona Revised Statutes (“A.R.S.”) section 36-2031, which prohibits local laws criminalizing or having as an element of an offense “being a common drunkard or being found in an intoxicated condition.”

I have long viewed city ordinances on “public intoxication” to be problematic. The crime should be public disturbance or endangerment since being intoxicated itself does not harm anyone. Moreover, it takes little for officers to charge public disturbance if a person is stumbling around and causing problems. Then there is the uncertain line between public intoxication and being under the influence. The court noted that problem in the opinion:

Although we agree that the phrase “in an intoxicated condition” is different than “under the influence,” that difference is not dispositive. A person who is “intoxicated” is in fact “under the influence” to a particular, greater degree. See Hasten v. State, 35 Ariz. 427, 430-31, 280 P. 670, 671 (1929) (noting that a 1927 statutory change from penalizing driving by someone who “becomes or is intoxicated” to penalizing driving by someone who is “under the influence of intoxicating liquor” evidenced the Legislature’s decision that “many persons who ha[ve] not yet arrived [*6] at [the point of actual intoxication]” should nevertheless be prohibited from driving); see also State v. Noble, 119 Ore. 674, 250 P. 833, 834 (1926) (concluding that the “under the influence of intoxicating liquor” standard under Oregon law was a lesser standard than “drunk or intoxicated” and did not require a showing that the defendant was drunk or intoxicated, but rather “under the influence of intoxicating liquor to some perceptible degree”), cited with approval in Hasten, 35 Ariz. at 430, 280 P. at 671. Because the difference between being “in an intoxicated condition” and being “under the influence” is, at most, a matter of degree, and because the group of persons who are “under the influence” subsumes the group of persons who are “in an intoxicated condition,” the Scottsdale ordinance criminalizing being “under the influence” conflicts with § 36-2031.

For the court, it became a simple case of preemption:

We conclude that the adoption of §§ 36-2021 to -2031 signaled the Legislature’s determination that alcoholism should be treated as a disease and not criminalized unless a person under the influence of alcohol engages in specified activities such as driving or operating other types of vehicles or equipment. By adopting § 36-2031, and thus prohibiting counties, municipalities, and other political subdivisions from using intoxication as an element of an offense, except as specified, or from “apply[ing] any law of general application to circumvent [that prohibition],” the Legislature addressed an issue of statewide importance, and expressly stated its intent to “appropriate the field.”

Interesting decision and an impressive result for this defense attorney who took a simple public intoxication citation and took down the entire ordinance through a preemption ruling.

Coles was represented by Lawrence I. Kazan and Tracey Westerhausen of Debus Kazan & Westerhausen, Ltd., out of Phoenix.

There is no word on whether the city will appeal.

Source: AZ Central

21 thoughts on “Arizona Appellate Court Strikes Down Scottsdale Public Intoxication Ordinance”

  1. Iowa has an even more idiotic law, which criminalizes the “simulation” of being intoxicated in public. As an attorney with quite a bit of First Amendment experience, I have tried and tried and tried to find people willing to reenact the Marriage at Cana with me, in which I would pretend to getting drunk on the wine that Jesus created, outside of an Iowa police station, for purposes of a First Amendment challenge. Unfortunately, I haven’t been able to find anyone who will actually follow through with it! I don’t want anyone else to have to be arrested, just me. It didn’t even occur to me to solicit people on Jonathan Turley’s blog until I read this post. Anyone here want to pretend to be part of the wedding party at Cana? Anyone want to play Jesus and wave his arms over a barrel of water and squeeze in some red food coloring while doing so? I’d gladly be the test case (i.e. the only one who gets arrested for pretending to be drunk in public while reenacting my favorite story out of the Christian bible). Just email me at andreabaker2@hotmail.com.

    1. Andrea – sounds like fun. I would be up for it, but I am too far away. Could we Skype it?

  2. Police should PROTECT and SERVE by making sure that someone who is intoxicated gets home safely. Lots of reasonable, practical ways to accomplish that. And yes, of course that should apply regardless of the substance used to
    get “high”.

    But don’t hold your breath waiting for more of your liberty rights to become legal, because too many alcohol/drug wars profiteers will make sure the won’t.

    LIBERTY, n. One of Imagination’s most precious possessions.

    The rising People, hot and out of breath,
    Roared around the palace: “Liberty or death!”
    “If death will do,” the King said, “let me reign;
    You’ll have, I’m sure, no reason to complain.”
    —Martha Braymance

    LIBERTY, n. One of Imagination’s most precious po

    1. b- taxis in the Phoenix metro area will take you home for free if you are intoxicated and cannot afford the cab fare.

  3. It seemed to me like a straight forward pre-emption case.

    Two other thoughts

    Back somewhere in the mid 1980’s, WA’s supreme court ruled that public intoxication laws were unconstitutional. This caused the legislature and various municipalities to change the disorderly conduct law to where people were actually being disruptive, such as threatening other people, or interfering with lawful activities such as church services or such was then criminalized. The intoxication in itself was not illegal.

    A better issue to deal with the an aspect of the problem is Protective Custody. In WA if a person is highly intoxicated, or incapacitated in some fashion, police are authorized to take the person to a hospital or detox center. The two requirements of this is the person is unable to fend for themselves AND they are in a place where this condition allows them or others to be victimized or injured. A common situation is where a drunk falls asleep in a roadway and risks being hit by a vehicle. Protective custody is not a criminal arrest but rather a civil custody issue and cannot be used as a pretext to a criminal issue. It does have its place in society.

  4. Seems like a correct decision by the court.

    I’m not as sure however that this is a good law. Someone who is intoxicated could easily be a danger to him or her self. Seems like I recall reading in Freakanomics (Superfreakanomics) that it is much more dangerous to self, on a per mile basis, to walk intoxicated than it is to drive intoxicated. Randyjet does make a good point about such laws being susceptible to police abuse however. Requiring cops to videotape such encounters would help prevent abuse. And, even if there were no public intoxication offense, the cops can likely abuse some other law (disorderly conduct, interference with police, etc.) to arrest you if they really want to.

    1. rcampbell – they are showing ‘Belle’ there this weekend and I am hoping to go. But it an older facility and could use a really really good upgrade.

  5. “Eat, drink, and be Larry.” Or is it Curley? Moe, Larry! Cheese!

  6. The corporate Sundance Theatres, now in 6 locations, are owned by Robert Redford. They are putting small, local artsy theatres out of biz wherever they go. It is the reality. The local alternative theatres[2] in Madison put out of biz by Redford were, like most, old and uncomfortable. Redford has upscale food, beer/wine, comfortable assigned seats, etc. We felt bad seeing the 2 small theatres in Madison, locally owned, put out of biz by Redford. Like in the different places we’ve also lived seeing local businesses go under by big grocery chains, hardware stores, Walmart, etc. That’s just the way it works. But of course, the very politically correct Redford would never get any ridicule, that is reserved for the Walmart’s of the world.

  7. Paul

    ” It does have a great art house movie theatre though”

    Assuming you’re talking about the wonderful Camelview 5 theater, sadly, they’ve announced plans to close it for an extended period while remodeling, modernizing and adding more screens.

  8. Scottsdale used to bill itself as “The West’s Most Western Town.” Now it it filled with upscale yuppie wanttabes. It does have a great art house movie theatre though and is home to the All-Arabian Horse Show.

  9. Quite right to ban such a law, Scottsdale is pathetically ‘socialist’ and Big Brother. They won’t even let you legitimately sell your wares in that snobby town. We already have thought crimes on the federal books. We only need ONE more law in this country: It says that for every NEW law, you have to abolish FIVE old laws of equal importance.

  10. Kudos to criminal defense attorneys who zealously represent their clients! Liberty’s last champion.

  11. Paul and Kraaken can now just be themselves w/o a criminal record.

  12. “… state law that prohibits municipalities from criminalizing being a common drunkard or being found in an intoxicated condition.”

    So, there are categories besides “common” … such as “less than common drunkard” … “above common drunkard” … “exceptional drunkard” … ??

    Sounds like a caste system of sorts.

  13. Another problem with such drunk laws is that they require NO proof of being intoxicated. The police routinely use Public intoxication as a reason to arrest people for no legitimate reason since they are not required to administer any test for the amount of alcohol. It is simply the word of the cop against that of the innocent citizen. As we all know, a cops word is one of the least reliable means of “proof” there is when they try and justify an arrest.

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