Legally speaking …

By David M. Abdullah
Contributing Columnist

Living in New Orleans certainly has its upside. Jazz Fest, Mardi Gras, the French Quarter, and more music, food and drink festivals than one has fingers and toes.

Unfortunately, this also means that there is ample opportunity for even the most law-abiding citizen to “overdo it” and, oftentimes, in full view of the general public. As you would suspect, the city of New Orleans is relatively lenient when it comes to enforcing rules related to the overly-influenced.

However, it is well worth noting that, despite evidence to the contrary, there are public intoxication laws on the books in our city.

Public drunkenness and/or public drug incapacitation is a municipal crime and is governed by city ordinance, which reads as follows:

New Orleans, Louisiana Code of Ordinances Sec. 54-405. Public drunkenness, drug incapacitation.
It is unlawful for any person to appear in a public place manifestly under the influence of alcohol, narcotics or other drugs, not therapeutically administered, to the degree that he may endanger himself or other persons or property.

As implied by the language of the ordinance, what constitutes public drunkenness can be very subjective. Unlike DWI statutes, the public drunkenness ordinance does not provide a clear test (for instance, a legal limit for blood-alcohol level), which can determine if someone is in violation. All that is needed for a lawful arrest is that you are in a public place, that you appear drunk to a police officer, and that you manifest that state in some way that the officer reasonably believes may endanger you, or someone else, or some property. It is important to be aware that how much you have had to drink, or your blood-alcohol level, has no bearing on whether you may be arrested or issued a summons for public drunkenness. While the fact that you were “not really that drunk” may carry some weight on the back end, it will not prevent you from being issued a summons or, most likely, being arrested if your public actions would cause one to believe otherwise. The number of ways one could “manifest” their drunken state are as plentiful as there are bars in New Orleans (See public urination; challenging police horses to engage in fisticuffs; and other acts of general foolery)

A municipal charge.

Public drunkenness and/or drug incapacitation is a municipal crime, not a felony, and may carry a penalty of a fine and/or up to six months in Orleans Parish Prison. While your record will not show a felony conviction, the fines imposed can add up, and any amount of time in OPP is guaranteed to be a less than desirable accommodation.

A summons is usually given for a municipal charge. However, there is a high rate of arrests for public drunkenness and/or drug incapacitation charges. This is due in large part because of the nature of the crime. It is highly unlikely that an officer who has determined that someone is a danger to himself or others, would allow that person to continue to walk the streets. That would defeat the very purpose of the ordinance which, arguably, is for the safety of New Orleans citizens. An officer is more likely to arrest someone who is publicly intoxicated, than to risk a potential lawsuit resulting from that person’s later actions.

David M. Abdullah. Mr. Abdullah is a former prosecutor and is a member of the law firm of Peiffer, Rosca, Abdullah, Carr & Kane, LLC. The information in this column is the opinion of the author only, and it does not reflect the views of the law firm of Peiffer, Rosca, Abdullah, Carr & Kane, LLC. The content of this column is intended for informational purposes only. Use of this column is not intended to replace or substitute for any professional or legal advice. This column neither constitutes, nor is intended to be considered legal or professional advice. This column, its author, the newspaper and publisher are not responsible for the outcome or results of following any opinion expressed in this article.

This article originally published in the May 12, 2014 print edition of The Louisiana Weekly newspaper.