Legal Services Blog: Public Drunkenness

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November 3, 2011

10:45 PM

Watch your swearin’ and drinkin’ in Virginia, because there’s a fun statute that could put a damper on your fun time. It’s VA Code § 18.2-388, and it concerns profane swearing and intoxication in public.
According to VA Code § 18.2-388, Profane Swearing and Intoxication in public is prohibited. Although courts haven’t defined the term “profane swearing,” screaming the F-word at the top of your lungs may not be the best idea, but the choice is totally yours.
As for “drunk,” in the Fourth Circuit in U.S. v. Brown held that even though the defendant’s eyes were “glassy and bloodshot, his breath smelled strongly of alcohol, and he admitted that he had been drinking,” he wasn’t physically impaired and thus the police did not have the probable cause to arrest him. 401 F.3d 588, 597 (4th Cir. 2005). In fact, the court stated that in every reported Virginia case related to public drunkenness, the defendant was physically impaired. Id. This would seem to suggest that physical impairment, along with other “classic” signals, such as glassy eyes, slurred speech, and the odor of alcohol, provides police officers with probable cause for an arrest.
So, if we know what “drunk” means, what about “in public?” Intuitively, it may seem to be a public place, such as the Greene Leafe or Colonial Williamsburg. But in Crislip v. Commonwealth, the Court of Appeals held “in public” refers to any place that is either accessible to the public or visible to the public. 554 S.E.2d 96, 98 (2001). That’s right—you can get ticketed if a cop can walk by and see you acting…colorful. Plan accordingly.
Finally, the infraction is a class 4 misdemeanor, which, according to Va. Code § 18.2-11, is punishable by a maximum fine of $250.

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