Not really drunk driving...

[grndslm]

What is the name of your state? Mississippi.

OK... So my friend and I each consumed about 3 beers, then a few hours later we decided to get some food in us so I drove to IHOP. On our return trip on a lonely road, I decided to see how well my new set of 15" rims & tires would handle a curve compared to my previous, larger 17" rims (I got rid of the larger rims because my Corolla doesn't have enough torque to push those 17s, but it sure never slipped with those 17s on, no matter how slick the roads or how much lead in my foot).

Anyway, the 15s didn't perform as well as I expected, so I ended up in a ditch. I would have called the insurance company to get a tow truck out there, but my phone was at someone else's house, and my buddy's phone was dead. Our only option was to walk the remaining 2 miles or so. We split up at a fence, where he jumped and I went around as I was in no hurry to get home.

Anyway, I was one friggin' block away from my house and an officer flashes his lights behind me, asking for some ID and info about why I'm walking on the road with a leftover omelet. I comply, telling him everything... then he asks me to hop in, saying he'll help me out. It sounded like a great idea at first, but when we got back to my car where another officer was staring at my car, the former officer cuffed me and told me I was being arrested for public intoxication & being given a ticket for reckless driving.

I can't deny the reckless driving bit; I've got a ton of speeding tickets. However, I wasn't drunk. I asked the officer to give me a breathalyzer or some kinda sobriety test, but he said he didn't need it for public intoxication... all he needed was a smell (and come to find out, another person around us, which is prolly why he took me near the other officer... he also prolly wanted to get my keys to give to the tow truck guy).

Anyway, I've never heard of such laws. I can drive with 0.08% BAC, but I can't even walk with 0.01% BAC... I can't even walk somewhere if somebody spills an alcoholic beverage on my clothing?!?!?!?

I hope there's something I can do to get out of this. Trial by jury perhaps? Can I even get a jury for a case like this??

Anyway, I was forced to spend a night in jail because the County's computers weren't working, so I couldn't get bonded out until 7pm later that day... which tacked on additional $50 for my towing storage fee.

It just seems ludicrous that I could have stayed in my car, waited for a cop, been forced to give a sobriety test and only got the reckless driving without having my car towed. Or I could have hopped the fence with my friend and made it home without ever coming in contact with "the man". But walking by myself with an omelet in hand and a hint of alcohol from the night before calls for public intoxication?!? ... even tho I begged to be given a sobriety test?!?!?!?

Please help me! And thanks in advance for it!

EDIT: I wasn't read my Miranda Rights, but from what I've seen on this site, they only need to do that for questioning.

[grndslm]

Also, what are the ramifications of a misdemeanor public drunk on my record? Job-wise? Military wise? Public office wise? Does this hurt me in anyway?

[paguy88]

Originally Posted by grndslm

Also, what are the ramifications of a misdemeanor public drunk on my record? Job-wise? Military wise? Public office wise? Does this hurt me in anyway?

I would not worry about the public office thing.. if you are going to run..

the president of the USA has a DUI

oh and the Vice President has 2 of them...

[grndslm]

So, I guess my second post can be ignored... it could be troublesome with a job, but hopefully not.

What are the chances I could get a jury for a misdemeanor like this?

Also, why did I not need my rights read to me?

[CavemanLawyer]

You are absolutely entitled to a trial by jury on any criminal offense.

Miranda warnings are required after you arrested but before you give a statement in response to custodial interrogation. If Miranda is not given than your statements may be inadmissible in trial against you. Police only need to read you your miranda warnings before asking you questions.

[grndslm]

Originally Posted by CavemanLawyer

You are absolutely entitled to a trial by jury on any criminal offense.

So... Public Intoxication is most definitely a criminal offense?!? This isn't a DUI case, and I have read somewhere that some states don't allow juries for misdemeanor cases involving 6 months or less of jail time.

Originally Posted by CavemanLawyer

Miranda warnings are required after you arrested but before you give a statement in response to custodial interrogation. If Miranda is not given than your statements may be inadmissible in trial against you. Police only need to read you your miranda warnings before asking you questions.

So... I assume if he tells me to hop in the car and then asks me if I had anything to drink, it *is* admissible because I hadn't been arrested yet.

Also... Does the cop have any right to pull up behind me, flash his lights, and demand my ID just for walking home?!?!? I'm starting to realize you have a lot more rights behind the wheel of a car than you do on your feet... Obviously I should have never said anything about alcohol, but I was always under the impression that breathalyzers or some form of sobriety test was always used to determine if you were really "over the limit"... I never realized smell, or more likely in this instance, my admission of drinking 2 beers four to six hours earlier, all after dining at IHOP, could incriminate me.

And finally... Since I had already eaten breakfast, I highly doubt he could have smelled alcohol on my breath. If I *had* lied to him about the beer, what could he have done then? Breathalyzed me and given me a public drunk ticket for 0.02% BAC??? Uggh... this is all too frustrating.

Thanks again for all your help...

[CavemanLawyer]

So... Public Intoxication is most definitely a criminal offense?!? This isn't a DUI case, and I have read somewhere that some states don't allow juries for misdemeanor cases involving 6 months or less of jail time.

Yes this is a criminal case. I've never heard of not being allowed a jury trial for an offense in which incarceration is a possibility, maybe its true, but not in Mississippi. The statute you are being charged under is § 97-29-47 which is located in under "Crimes."

Under Mississippi's Constitution Art. III §2, 3 it states:

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed.

So... I assume if he tells me to hop in the car and then asks me if I had anything to drink, it *is* admissible because I hadn't been arrested yet.

Also... Does the cop have any right to pull up behind me, flash his lights, and demand my ID just for walking home?!?!?

Rarely does an officer walk up to somebody and say, "you are under arrest," especially for an alcohol related crime. When the officer stops you it is called a detention, not an arrest. Everything that happens from then on up until the moment of arrest is considered an investigation and Miranda is irrelevant. Generally an officer needs reasonable suspicion that you have violated a crime to stop and detain you and to do things like demand your ID. But there are exceptions to this such as the community care-taking exception. Someone walking alone at night on the side of the road could very conceivably need help and an officer is permitted to stop them, initially, for this purpose. But if during that detention they see signs of a possible crime, than they can expand the detention into a criminal investigation. It is actually very common for people to be stopped on the side of the road and arrested for public intoxication.

And finally... Since I had already eaten breakfast, I highly doubt he could have smelled alcohol on my breath. If I *had* lied to him about the beer, what could he have done then? Breathalyzed me and given me a public drunk ticket for 0.02% BAC??? Uggh... this is all too frustrating.

I'm looking at the public intoxication statute in your state and it is very vague. It doesn't define intoxication or "drunk" and it doesn't draw any parallels to DWI statutes or mention anything about BAC. This is actually not uncommon for these types of statutes.

If you believe the officer is lying or mistaken than you can test his credibility when he testifies.

[grndslm]

Originally Posted by CavemanLawyer

Yes this is a criminal case. I've never heard of not being allowed a jury trial for an offense in which incarceration is a possibility, maybe its true, but not in Mississippi. The statute you are being charged under is § 97-29-47 which is located in under "Crimes."

Wow.. That's GREAT news! I guess I could see how the judge will play out first, and if things aren't looking too hot (which is highly likely since judges judge purely based on the law, no matter how st00pit, and I did break a st00pit law), I could then motion for a trial by jury.

Originally Posted by CavemanLawyer

Generally an officer needs reasonable suspicion that you have violated a crime to stop and detain you and to do things like demand your ID. But there are exceptions to this such as the community care-taking exception. Someone walking alone at night on the side of the road could very conceivably need help and an officer is permitted to stop them, initially, for this purpose. But if during that detention they see signs of a possible crime, than they can expand the detention into a criminal investigation. It is actually very common for people to be stopped on the side of the road and arrested for public intoxication.

Well, it doesn't seem like community care to start flashing your lights and ask for someone's ID while they're walking home. Simply pulling up beside me and asking me if I needed any help would have been more caring.

Originally Posted by CavemanLawyer

I'm looking at the public intoxication statute in your state and it is very vague. It doesn't define intoxication or "drunk" and it doesn't draw any parallels to DWI statutes or mention anything about BAC. This is actually not uncommon for these types of statutes.

The cop told me that there were only 5 states left that didn't have to test BAC for public intox, but I have a feeling that there are a good bit more from what I've been reading.

Anyway... § 97-29-47 from the Mississippi Code states:

If any person shall profanely swear or curse, or use vulgar and indecent language, or be drunk in any public place, in the presence of two (2) or more persons, he shall, on conviction thereof, be fined not more than one hundred dollars ($100.00) or be imprisoned in the county jail not more than thirty (30) days or both.

This is the retarded part. So even if I was so wasted that I *was* stumbling home, he couldn't have arrested me until one of his buddies was around since he was the only other person around at the time. I just wish I would've never gotten in his car when he offered to help me and kept walking home instead!!

Originally Posted by CavemanLawyer

If you believe the officer is lying or mistaken than you can test his credibility when he testifies.

I hope he saves that video (or I can request that he save it for court), because he is definitely lying about me slurring & stumbling. That was his response for telling me how he *knew* I was drunk *after* he saw my car in the ditch and there was another officer around to uphold this st00pit conviction. If I had never mentioned the couple beers I had 4 to 6 hours earlier, he wouldn't have been able to arrest me for public intox. I know good and well I was not stumbling in front of the camera, or slurring inside his car. It would take a good bit of liquor to get me slurring, and that's the thing... I don't care for liquor, and I don't let myself get that drunk, ESPECIALLY when I'm driving.

Anyway... this all seems very minor, but you have no idea how much it means to me to have a clean record, CavemanLawyer! Thank you soo much for all your help!!

[grndslm]

Also... I'm pretty sure this'll be the last question I have for awhile. After I kept asking over and over how he didn't need to give me any form of sobriety test even if I wanted it... he said I was lucky I wasn't getting a DUI.

Could he have given me a DUI without giving me a breathalyzer?? I'm just wondering if I could have requested to get a DUI (seems pretty stupid, but it's..) just so that I could have had proof that I wasn't drunk just so that the DUI and/or public intox would have been dropped...

Sad thing is that cop was smarter than that anyway. He knew I wasn't drunk, so he didn't even give me an option.

[grndslm]

I called the Gulfport, MS Municipal Court, and the clerk said that the city doesn't do jury trials. I couldn't quite get it out of her if it NEVER did jury trials or if they never did jury trials for public intox...

MS Code does clearly state that public intoxication is a crime, and it clearly states that

The right of trial by jury shall remain inviolate, but the Legislature may, by enactment, provide that in all civil suits tried in the circuit and chancery court, nine or more jurors may agree on the verdict and return it as the verdict of the jury.

So I'm assuming the US Constituion's Sixth Amendment stands, and I *can* have a jury trial by simply asking the judge for one.

However, this is what I read earlier on Wikipedia about the Sixth Amendment that really worries me:

Originally Posted by http://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_States_Constitution

The right to a trial by jury has always depended on the nature of the offense with which the defendant is charged. Petty offenses—those punishable by imprisonment for not more than six months—are not covered by the jury requirement. Even where multiple petty offenses are concerned, the total time of imprisonment possibly exceeding six months, the right to a jury trial does not exist (Lewis v. US, 1996). Proceedings in state juvenile courts do not require juries either.

MS public intox fine is $100 and/or 1 mo jail time. So, what do you guys have to say about that quote from Wikipedia?? Could the judge deny my request to a jury trial?

[grndslm]

Just wanted to say that I was found NOT GUILTY!!

A cop that didn't even pick me up came to my trial, testifying against me. Off the bat, he started saying he'd seen us throwing a "box of beer" out the window, couldn't even stand up, and was slurring (All obviously BULL..). I said that cop only took me to the county jail, and sure enough, in the report it mentioned another cop picked me up. I got my chance to say that I had managed to walk more than a mile back to the house, and that I was still carrying my omelet after that long walk.... I have a LONG history of speeding, and new rims/tires I thought would be best to try out at 3am when nobody's on the road (paperwork was in hand to prove history of speeding & new wheels, but the judge didn't even look at it, I just kept waving it around).

Long story short, the cop was lying out of his arse, which was my whole stance this whole time. But it showed when the judge simply stated, "I'm not understanding why you weren't charged with a DUI." And I shouted, "EXACTLY!!" The judge sided in my favor shortly after that.

It was just humorous to me that I had an entire list of questions to ask, evidence to prove my new wheels that actually had the worst tires in the world (all 4 of them were blown out within a month of this "ditch accident"), a witness that was really with me during the accident (unlike these lying cops), even news articles I've found, stating that a few beers a day is healthy, and a BAC chart stating I'm not even close to the level of not being able to drive.

... and none of that mattered, because of the cop lying out his teeth. The judge caught on quick that if he had witnessed all that he was testifying to, he shoulda given me a DUI. I had lost faith in my government for a second, but it appears judges are allowed to base on logic instead of strictly judging based on current law.

It was just so beautiful to see this guy saying stuff that was grossly inaccurate, and I all I did was wave my 20-stack of papers in the air while saying, "I have a history of speeding, I bought new rims & tires, this guy wasn't even there, it's all hearsay!" It took me about a minute and a half, and the judge was diggin' it!

Is it possible that I could sue them or the city for throwing me in jail for more than 16 hours (computers were down forever), making me pay for a tow truck that my insurance would have covered had I had my cell phone... and paying for the bond. Would something like that take place in a state court instead of city court?? I wouldn't get a lawyer, but do it myself for the excitement factor (I might go back to college & then to law school this is so fun!!)... and I might be willing to pay a small fee if I lose. They can't convict me of anything since I was found not guilty, so it could be worth it for me. I'd rather pay $150 trying to nail a corrupt cop than spend it on anything else.

[BigMistakeFl]

You can attempt to sue anyone in civil court.

[41tellthetruth]

How about you stop speeding and acting the fool, then you wouldn't find yourself in jail/court. Also considering your carwas in the ditch and you admitted drinking etc. you're lucky you weren't hooked for DWI. Remember, you can be convicted even if you're BAC is below .08 all that has to be proven is impairment. Driving into the ditch is a pretty good way to demonstrate impairment. Stop blaming the police for you're troubles they appear to be self inflicted.

[Ajosin]

Originally Posted by 41tellthetruth

How about you stop speeding and acting the fool, then you wouldn't find yourself in jail/court. Also considering your carwas in the ditch and you admitted drinking etc. you're lucky you weren't hooked for DWI. Remember, you can be convicted even if you're BAC is below .08 all that has to be proven is impairment. Driving into the ditch is a pretty good way to demonstrate impairment. Stop blaming the police for you're troubles they appear to be self inflicted.

True, he is very lucky that the police didn't use low BAC level + accident + FST misses (sober people will miss and its just a matter of time to get enough misses to obtain imparement evidence). Thet could have built a strong case for DUI...

Glad to see another innocent citicen was not convicted of DUI. Also, kudos for the court appearance!

[JIMinCA]

You should sue. That is the way that the public can keep a check on ego driven cops who overzealously enforce the law. Don't listen to the people that tell you that you should be grateful you didn't get a DUI. You weren't guilty of that either.