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Court: Being drunk not a crime

Court: Being drunk not a crime

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SALT LAKE CITY (AP) -- The Utah Supreme Court ruled Friday that someone can't be charged with public intoxication simply for being drunk.

The court clarified that the drunk person must pose a threat to himself or others to be legally intoxicated and that bartenders and servers can't be punished for over-serving someone unless that threshold is met. In effect, the court said being drunk doesn't innately mean someone poses a risk of endangering himself or others.

The ruling eliminates widespread discretion from law enforcement officers in determining who can be charged for being intoxicated, and "does not encourage arbitrary and erratic arrests."

In Due South Inc. v. Department of Alcoholic Beverage Control, the court ruled authorities can't speculate that someone would pose a danger just because he exhibits signs of being drunk. Due South is the corporate parent of the private club Southern X-posure.

"It has to be behavior over and above those more simple signs of intoxification," said David Eckersley, an attorney for the club.

The case the court ruled on revolved around a set of liquor violations for which Southern X-posure was cited. Among the alleged violations of state liquor law were charges that police officers had seen customers who were allowed to become intoxicated at the club or who served alcohol while intoxicated.

Attorneys for the Murray club said Utah's law defining intoxication was too vague. The court disagreed, ruling that existing law is perfectly clear "as evidenced by the plain language of the statute."

The statute says someone is intoxicated when "under the influence of alcohol ... to a degree that the person may endanger himself or another, in a public place or in a private place where he unreasonably disturbs other persons."

"It's (now) a reasonable probability that behavior will take place as opposed to suspicion," Eckersley said. "It sets the standard."

In the Southern X-posure case, officers said there was a possibility that a drunken customer would endanger himself by stumbling, falling or bumping into another customer and that there was a likelihood of the customer endangering others if he were to drive.

"We hold that in order to satisfy the may endanger element of the public intoxication statute, an officer must be able to articulate objective facts indicating a reasonable likelihood of endangerment based on the particular circumstances," the court wrote.

That means someone can't be charged with public intoxication on the off chance he or she might drive a vehicle under the influence of alcohol.

"Had the Legislature intended for the public intoxication standard and the DUI standard to be equivalent, it would have defined "intoxication" ... by referring to the DUI statute, not to the public intoxication statute. By referring to the public intoxication statute rather than the DUI statute, the Legislature evinced an intent to require both intoxication and endangerment for a violation."

Instead, the court says proof of a reasonable likelihood of endangerment must be based on individual circumstances.

In its ruling, the court provided several examples from Texas law as to what kind of drunken behavior constitutes endangerment.

"The proof of potential danger requirement has been met in cases where the individual was walking down the middle of a street, buying tire chains and indicating an intent to drive, arguing in the middle of the street and resisting arrest, and sleeping in a car in front of a lounge, presenting the likelihood that the individual would wake up and drive home," the court said.

"But it was not met where the individual was in a private driveway leaning on the back of a vehicle."

A message left with the Utah attorney general's office, which defended the DABC, was not immediately returned Friday.

(Copyright 2008 by The Associated Press. All Rights Reserved.)

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