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Samuel II
Samuel II, Attorney at Law
Category: Criminal Law
Satisfied Customers: 27009
Experience:  Handle criminal matters in both state and federal courts.
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My wife was recently arrested for 647(f) Public Intox-Alcohol

Customer Question

My wife was recently arrested for 647(f) Public Intox-Alcohol in Long Beach, CA. I think we should plead not guilty as she was not unable to exercise care for her own safety. How do the Officers who arrested her articulate this in court so that we would be found guilty? How can we articulate it to prove they were overzealous and arrested her because she pissed them off, not because she was in actual violation of the crime?
Submitted: 6 years ago.
Category: Criminal Law
Expert:  Samuel II replied 6 years ago.

Hi

 

Below is the CA law as she was charged. She can plead not guilty at the preliminary hearing and request the Public Defender at that time. If there was no breath, blood test administered, then the police will only have their word against hers and any witnesses she may be able to present.

 

If she files her appearance Pro Se in the matter, then she can write for the police report and they need to provide it. Otherwise, they do not

 

647. Every person who commits any of the following acts is guilty
of disorderly conduct, a misdemeanor:


(a) Who solicits anyone to engage in or who engages in lewd or
dissolute conduct in any public place or in any place open to the
public or exposed to public view.


(b) Who solicits or who agrees to engage in or who engages in any
act of prostitution. A person agrees to engage in an act of
prostitution when, with specific intent to so engage, he or she
manifests an acceptance of an offer or solicitation to so engage,
regardless of whether the offer or solicitation was made by a person
who also possessed the specific intent to engage in prostitution. No
agreement to engage in an act of prostitution shall constitute a
violation of this subdivision unless some act, in addition to the
agreement, is done within this state in furtherance of the commission
of an act of prostitution by the person agreeing to engage in that
act. As used in this subdivision, "prostitution" includes any lewd
act between persons for money or other consideration.


(c) Who accosts other persons in any public place or in any place
open to the public for the purpose of begging or soliciting alms.


(d) Who loiters in or about any toilet open to the public for the
purpose of engaging in or soliciting any lewd or lascivious or any
unlawful act.


(e) Who lodges in any building, structure, vehicle, or place,
whether public or private, without the permission of the owner or
person entitled to the possession or in control of it.


(f) Who is found in any public place under the influence of
intoxicating liquor, any drug, controlled substance, toluene, or any
combination of any intoxicating liquor, drug, controlled substance,
or toluene, in a condition that he or she is unable to exercise care
for his or her own safety or the safety of others, or by reason of
his or her being under the influence of intoxicating liquor, any
drug, controlled substance, toluene, or any combination of any
intoxicating liquor, drug, or toluene, interferes with or obstructs
or prevents the free use of any street, sidewalk, or other public
way.

 

 

 

Customer: replied 6 years ago.
They did a breath test and she was found to be a .20 BAC. However, this arrest was in front of our house and she was in no way unable to exercise care for her safety. The law says nothing about %BAC, only whether she was unable to exercise care or if she was blocking a sidewalk. AS such, I can't see how she can be found guilty, particularly if I was witness to her behavior when they brought her inside and woke me up to confirm I was a cop (which I am). I have made 647(f) arrests before, but mostly for the safety of the person in question. I always went non-prosecute knowing most DAs will invariably throw it out anyway. But now I'm on the other side of the law and want my wife cleared. I know having the .20 BAC will strengthen their case, but I still don't think having a BAC number is XXXXX proof of elements of the crime. I have had drunks blow a .30 who you could barely tell were intoxicated and were clearly able to take care of themselves. Is there legal precedent or any cases I could refer to in CA to let me see which direction I can go with this?
Expert:  Samuel II replied 6 years ago.

Hi


I agree with you the breath test only lends to that portion of the law that states "intoxicated"

 

Unfortuately, I do not have access to any case laws and cannot provide those. But you could certainly use a law library to find them or go on your experience. If it was only a matter of them bringing her in to you for her safety, then you can contact the DA and try to have the matter dismissed