MOTOR VEHICLES ‑- INTOXICATION IN PUBLIC PLACE OR PRIVATE PLACE ‑- PASSENGER THEREIN

MOTOR VEHICLES ‑- INTOXICATION IN PUBLIC PLACE OR PRIVATE PLACE ‑- PASSENGER THEREIN

There is no statutory crime in merely being an intoxicated passenger in a private car which is parked or operated on a public highway.  Facts and circumstances, however, such as obscenity or disturbance of the public peace would bring the passenger within the purview of the prohibition of being intoxicated in a public place.

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                                                                 October 6, 1950

Honorable James A. Pryde
Chief, Washington State Patrol
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 363

Dear Sir:

            In answer to your request for an opinion from this office in which you ask:

            "Would a person who is intoxicated and is a passenger in a private car which is parked or being operated on a public highway, be considered as being intoxicated in a public place or would he be considered as being intoxicated in a private place, such as in one's home?"

            Our conclusion is as follows:

            There is no statutory crime in merely being an intoxicated passenger in a private car which is parked or operated on a public highway.  Facts and circumstances, however, such as obscenity or disturbance of the public peace would bring the passenger within the purview of the prohibition of being intoxicated in a public place.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Our Supreme Court in its decision on a criminal action in which the defendant was arrested while in possession of intoxicating liquors, said liquors having been found in his private vehicle, State v. Knutson, 154 Wash. 87, 280 Pac. 922, said:

            "Each case presents, of course, a state of facts to a greater or less extent different from that presented in every other case.  After careful consideration, we are of the opinion that what the officers saw on the evening of appellant's arrest supported a reasonable belief on the part of the officers that appellant was, in their presence, violating the law, and constituted probable cause for the search which was made of appellant's automobile.  * * *"

            A specific statement of facts did not accompany your request for an opinion and our answer must, therefore, be somewhat general in nature.  You will appreciate that facts may vary and our answer, applicable in one instance, might not apply in a different situation.

            There have been so many decisions holding that a public highway is a public place that it will be taken for granted that a vehicle parked or operated on a public highway is, in law, in a public place.  The statutes on being intoxicated in a public place include section 416, chapter 249, Laws of 1909 (Rem. Rev. Stat. 2668) which provides:

            "Every person who shall become intoxicated by voluntarily drinking intoxicating liquors, and who, while intoxicated shall loiter about any place where intoxicating liquors are sold or kept for sale, or create any disturbance or use any profane or indecent language in any public place, street or meeting, or commit any assault or breach of the peace, shall be guilty of a misdemeanor."

             [[Orig. Op. Page 3]]

            It will be noted that a passenger in a private car would not be loitering where liquors are sold or kept for sale or necessarily be guilty of creating a disturbance in a public place, street or meeting, or committing assaults or breaches of the peace.

            Another statute, namely section 1, chapter 23, Laws of 1909 Ex. Sess. (Rem. Rev. Stat. 2721 1/2) provides:

            "Any person who shall use in the presence of any person any indecent or vulgar language, or who shall appear upon any public road or street or in any public place or conveyance in any indecent, drunken or maudlin condition or boisterous manner shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished accordingly."

            This statute does not apply because a passenger is not himself on a public road or street nor is he in a public conveyance.  See also section 7306-35 Rem. Supp., which provides that no person who is intoxicated shall be or remain in any public place.

            We are aware of a number of cases from another jurisdiction which, at first glance, would appear to hold that one in a private car in an intoxicated condition was guilty of being drunk in a public place, but in all of such cases the defendant was either arrested after he had alighted from the vehicle as inTaylor v. State (Ga.) 4 S.E. (2d) 484, or was driving the vehicle as inWinters v. State (Ind.) 160 N.E. 294, or was charged with some other crime as in Thompson et al. v. State, (Miss.) 121 So. 275, or the facts were different, such as boisterousness, or in an extreme interpretation of the law as found in Holcombe v. State (Ga.) 187 S.E. 599.  It would, therefore, appear that our laws making it a crime to be in an intoxicated condition in a public place would not apply to an individual who was merely sitting in a private vehicle which happened to be located on a public street or highway.  Where said person is shown to be creating a disturbance or using profane and indecent language audible to the public, the fact that he was in a private vehicle would not insulate him from arrest and the other provisions of said acts would then apply.

             [[Orig. Op. Page 4]]

            You may be interested to know that our Supreme Court in State v. Gibbons, 118 Wash. 171, 203 Pac. 390, held that where a defendant was unlawfully arrested and his automobile seized and searched without any warrant, that said seizure is a constitutional violation which implies that one's private automobile is as inviolate as one's private dwelling.  This case was confirmed in principle in State v. Knutson, supra.  Inasmuch, however, as it would appear that there is no statute which makes it a crime to be intoxicated while sitting in a private vehicle it is not necessary to answer your question as to whether or not said person could be considered under the law as being intoxicated in a private place such as one's home.

Very truly yours,

SMITH TROY
Attorney General

PHILIP W. RICHARDSON
Assistant Attorney General