disorderly conduct/ intoxication

[madi]

What is the name of your state (only U.S. law)? Ohio

ordinance: 648.04b2

(23 years old) I was at the bars with my friends. End of finals week!
Over the course of the evening (about 7 hours) I had 6, maybe 7 beers. The last hour, I just had water. (given my weight, etc., that puts my BAC to @ .017..not impaired) When it came time to leave, I couldn't find my friends and my cell phone had died. It was a nice evening, so I decided to walk home. (about 4 miles)
It was kind of humid out, so I took my shirt off.
I had walked about 1 hour and was nearly home, when a police officer stopped me. He said I appeared to be staggering. But, I wasn't. I was fine. I had no clue why I would be stopped.

The officer didn't ask if I had been drinking. He only told me that I appeared to be staggering. (ok...night time, uneven sidewalks...it's possible)
On the ticket he made mention that I was walking without a shirt. (kind of weird, isn't it?)
He also mentioned that staggering part. And said he smelled alcohol (also wrote that on the ticket) But, of course he smelled alcohol....you can smell beer on someone's breath after 1 or 2 beers!
When he put me in the patrol car, that is when I realized that he wanted to cite me with something. I was dumbfounded.
He told me...I can either take you to jail or I can give you a ticket and take you home. Well, that wasn't a difficult choice to make.

So, now I have a court date, tomorrow morning. I am going to plead not guilty...because I KNOW I wasn't drunk. I was just tired after a very long week, and just wanted to get home and go to bed.

I have read the law....somewhat broad and leaves very little room for a not guilty person to be found not guilty. It seems to be written so that even the not guilty will be found guilty.

How can I prove I wasn't drunk? I have been drunk, of course. I know when I am drunk. And I wasn't drunk.
How can I be charged with being drunk just because a police officer "made an observation"? It's so subjective!
Any advice will help.

 

[justalayman]

Is this the verbiage of the ordinance?

(b) No person, while voluntarily intoxicated shall do either of the following:


(1) In a public place or in the presence of two or more persons, engage in conduct likely to be offensive or to cause inconvenience, annoyance or alarm to persons of ordinary sensibilities, which conduct the offender, if the offender were not intoxicated, should know is likely to have that effect on others;


(2) Engage in conduct or create a condition that presents a risk of physical harm to the offender or another, or to the property of another.

what was the claim of conduct or condition that presented a risk of PHYSICAL HARM to anybody?

 

[madi]

Yes... B (2).
When I asked that same question, he said, "you could fall off the sidewalk and get hit by a car".

That's it!

 

[madi]

I must reiterate....I had already been walking for 45 minutes - one hour.
I think if I was so drunk that I would fall off the sidewalk, then I would probably have done so by then.

also....I don't understand why he needed to mention, on the ticket, that I "had no shirt on". It was humid...I sweat a lot and very easily...I was HOT! It seems like that is what drew his attention to me, more so than "staggering".
I wasn't staggering!

He didn't ask me if I had been drinking....he only said that he could smell alcohol.
Well, yes.... you can smell beer after 2-3 beers and also through sweat...which I have already said that I sweat a lot.

It just seems so subjective and also even though we say we are innocent until proven guilty... I beg to differ. I will be assumed guilty, whether I say I am or not. And the only thing the officer has to say is that he thought I was drunk....therefore....guilty!

 

[justalayman]

I suspect that section was intended for the idiots that get out the ATV's while they are drunk and do stupid things that endanger both themselves and anybody around them (or the guns or climbing on the roof or some actual activity).

I cannot see how the ordinance can be applied to a person walking down the sidewalk unless they are so inebriated they are literally falling down drunk.

If it was me, I would plead not guilty and see what the state claims what conduct you were engaged in or what condition you had created that fits within the ordinance.

 

[musicman654321]

Why do police hassle people for these very very very minor issues.

I would plead not guilty..ask for a jury trial. I don't see how the officer can attribute any "zig-zag" walk to alcohol if he never tested you. Maybe you had a rock in your shoe...

Nice that he took you home, surprised he did not just ticket you and let you go on your way. lol

I did not know that you had to wear a shirt? Is this a law?? lol

 

[dave33]

Unfortunately for you, it is your word against his. The officers word is almost
always believed.
At this level (misdemeanor) in the process you can almost expect to lose.
Your chances certainly increase at trial with a competent aggressive attorney.

Maybe with a case like this the d.a. will not prosecute. That is a wish.

 

[musicman654321]

Can you copy & post the ordinance?

 

[CdwJava]

While it certainly appears that the state will have a difficult time making the case for the elements of the (b)(2) offense, I want to clarify a couple of things.

First, the section likely does not require anyone to be "drunk" only that they exhibit certain behavior while under the influence of alcohol.

Second, I am not sure where you get your thought that 7 beers in 7 hours would equal a 0.017 BAC. Assuming these were 12 oz beers and you are of average build, I would estimate a BAC of between 0.070 and 0.035. While not sufficient to be legally impaired pursuant to per se laws while operating a motor vehicle, those levels are certainly sufficient to cause a change in behavior - even if mild - and trigger the statute assuming you were engaged in conduct that is prohibited.

It is a common misunderstanding that one has to be "drunk" to violate such statutes when it is clear the statute's language makes no such requirement.

Since this section is not part of the ORC it would be best to post the name of the city or town where the ordinance exists. While there appears to be a general conformity for this particular numbered ordinance, that does not mean that it is identical in all jurisdictions.

So, what town was this in?

 

[justalayman]

the definition of "intoxicated" in the ordinance:

(d) If a person appears to an ordinary observer to be intoxicated, it is probable cause to believe that person is voluntarily intoxicated for purposes of subsection (b) hereof.

it doesn't require any specific BAC. The officers word is going to be enough.

http://www.conwaygreene.com/PepperPike/lpext.dll/PepperPike/15e6/21c8/2209?f=templates&fn=document-frame.htm&2.0#JD_64804

 

[CdwJava]

I don't see where the OP gave the name of the town or city, so how do you know it is the same ordinance?

Not saying it is wrong, but, this appears to be a boilerplate ordinance for a few different jurisdictions. That also means that it could be slightly different, with different verbage and definitions.

 

[justalayman]

I don't see where the OP gave the name of the town or city, so how do you know it is the same ordinance?

Not saying it is wrong, but, this appears to be a boilerplate ordinance for a few different jurisdictions. That also means that it could be slightly different, with different verbage and definitions.

well, it's like this.

It would appear Ohio has some form of standardized ordinances. While I suppose any give municipality could alter the standard ordinance to meet some specific intent, if they are smart, they don't.

While I can't say for certain that is the ordinance in the OP's specific area, I chased a half dozen or so counties and cities and came up with the identical ordinance. I suspect it likely is.

I also suspect if they altered the ordinance from the state created standard ordinance, they would likely not use the same method of codification.

 

[musicman654321]

the definition of "intoxicated" in the ordinance:




it doesn't require any specific BAC. The officers word is going to be enough.

NextPage LivePublish

Do you think "probable cause" = "prima facia evidence" in this ordinance? Looks like the OP has a google scholar search to perform

 

[CdwJava]

well, it's like this.

It would appear Ohio has some form of standardized ordinances. While I suppose any give municipality could alter the standard ordinance to meet some specific intent, if they are smart, they don't.

While I can't say for certain that is the ordinance in the OP's specific area, I chased a half dozen or so counties and cities and came up with the identical ordinance. I suspect it likely is.

I also suspect if they altered the ordinance from the state created standard ordinance, they would likely not use the same method of codification.

It could well be, and I likely found the same links. However, I found jurisdictions where the same numbering pertained to other regulations. So, while it is likely the same, it is something I'd still like to know.

In any event, being "drunk" is not required to violate the section. Alcohol consumption and committing some other act, is.

 

[justalayman]

the best I can say is: I asked the op if the (b) section I first posted is the correct ordinance and he responded affirmatively. So, at least that part is correct.