To commit the offense of public intoxication an individual must be intoxicated to the point of potentially endangering himself or others
Does the requirement of potentially endangering oneself or another grant a peace officer too much discretion in enforcing the statute? Explain your answer.
• If arrest is being made solely to protect the offender and not for filing of criminal charges, the public interest is best served by granting peace officers wide discretion to take such persons into custody.
• If the intoxicated individual is being taken to jail or charged with a criminal offense, officer discretion needs more restriction. Perhaps officer should be required to articulate the specific danger the individual is potentially creating.
• The statutory element that the offender "may endanger himself or another" is contrary to American criminal law tradition where individuals are sanctioned for what they do, not what they might do.
• Officers need clear legal authority to perform their community caretaking function relative to individuals who cannot help themselves, such as intoxicated homeless persons, or intoxicated individuals who are preparing to drive a motor vehicle.
• Many in society continue to view publicly intoxicated persons as upsetting the social order and public tranquility.
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