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