On Tuesday, the general counsel to the Georgia Sports Blog Legal Department, Dawgnoxious, rose in defense of Bulldog offensive lineman Ian Smith.
According to published news reports, Smith passed out while seated on the commode in the bathroom of an Athens restaurant with his pants around his ankles. Clarke County policemen reportedly had to hammer through a wooden door to get to Smith, who was charged with public drunkenness.
Dawgnoxious offered his opinion that Smith is not guilty of violating O.C.G.A. § 16-11-41, the Georgia statute criminalizing public drunkenness. Because Dawgnoxious offered a legitimate legal analysis, I thought it worth the time and trouble to evaluate his position and determine whether it held water.
Permit me to begin with a caveat: I am not a criminal defense attorney. My practice primarily focuses on estate planning and probate matters, civil litigation, and general business and family law. My experience with criminal matters primarily is confined to the time I spent in Morgan County, working with the assistant district attorney there during my third year of law school, nearly a decade ago.
This is just how it appears to me after having read a handful of cases. All warranties, express or implied, are hereby disclaimed and, as Dawgnoxious put it, when it comes to free legal advice, you get that for which you pay.
Dawgnoxious cited Peoples v. State, 134 Ga. App. 820 (1975), in which the defendant was "originally apprehended . . . because he was in a drunken condition, 'passed out' sitting on a bench of an eating establishment with his head on the counter." Peoples, 134 Ga. App. at 820-821(1).
Smith was arrested because he was in a drunken condition, passed out sitting on a commode in an eating establishment. The circumstances are not identical, but they are analogous. A restaurant is a "public place" within the meaning of the statute. See Talley v. State, 129 Ga. App. 479, 480(1) (1973).
In the Peoples case, the Georgia Court of Appeals stated: "The public drunkenness statute is designed as a protection against the drunkard's conduct and not his mere presence. Merely being intoxicated is not sufficient, for the condition must be manifested by 'boisterousness, or by indecent condition or act, or by vulgar, profane, loud, or unbecoming language.' Drunkenness manifested by extreme stupor or a deep sleep is not a violation of state law. The defendant's arrest in this case based on a violation of state law can therefore not be sustained." 134 Ga. App. at 821 (citations omitted).
This interpretation of O.C.G.A. § 16-11-41 was endorsed by the Georgia Supreme Court in Welch v. State, 251 Ga. 197 (1983), when it was "require[d] that the accused not only be or appear intoxicated, but that he manifest this condition by boisterous, vulgar, loud, profane, or unbecoming language. The Court of Appeals has further held that unless one of these outward manifestations or acts is present, no violation of the law has occurred." Welch, 251 Ga. at 198-199(4) (citations omitted). See also LaRue v. State, 137 Ga. App. 762 (1976); Moore v. State, 155 Ga. App. 299 (1980).
Clearly, Smith was not being "boisterous," nor was he using "vulgar, profane, loud, or unbecoming language"; in fact, his drunkenness was "manifested by extreme stupor or a deep sleep," which the Court of Appeals stated unequivocally was "not a violation of state law."
The only possible argument that Smith was guilty of public drunkenness is the claim that he was in an "indecent condition."
These words were construed by the Supreme Court in Scarborough v. State, 231 Ga. 7 (1973), where it was ruled that the phrase "indecent condition" did "not include the concept of recklessness, nor even of impropriety, unless the impropriety be such as to offend the sentiments of delicacy and modesty universally recognized in civilized communities." Scarborough, 231 Ga. at 8.
Subsequent citations of the Scarborough case for the purpose of defining "indecency" typically have focused on truly loathsome behavior, such as forms of sexual assault. See, e.g., McCord v. State, 248 Ga. 765 (1982); Smith v. State, 178 Ga. App. 300 (1986); Hammock v. State, 201 Ga. App. 614 (1991). Obviously, Smith did nothing even remotely so heinous in this instance.
I will leave aside the question of how improprieties deemed offensive to the delicacy and modesty of our communities might have changed between 1973 and 2006. I presume that we would all agree that answering nature's call is "unseemly, unbecoming, indecorous, or [i]s unfit to be seen or heard." 231 Ga. at 8.
However, Smith did not publicly exhibit the offending behavior. Had he relieved himself in full view of his fellow restaurant patrons, that unquestionably would have constituted an "indecent act" within the meaning of O.C.G.A. § 16-11-41.
That is not what he did, though. Rather, Smith went into the bathroom and locked the door before attending to his business. We know this because the police had to open the door forcibly to get to him. The only activity in which Smith engaged that might reasonably be construed as violating the public drunkenness statute was engaged in privately until the police made it public by breaking down the door.
Dawgnoxious's assessment of the situation includes the following line from "Tater Salad": "I don't want to be drunk in public. I want to be drunk in a bar. You threw me into public."
Tater Salad's observation essentially is a correct statement of Georgia law. Where a person in a drunken condition is not in violation of the statute, the authorities cannot forcibly place him in a posture that puts him in violation, then charge him for that offense. See, e.g., Finch v. State, 101 Ga. App. 73, 75(2) (1960).
As I stated previously, I believe Ian Smith ought to be running stadium steps every day until August for doing something so foolish and for embarrassing the program in this manner. However, his conduct, while moronic, was not criminal and he should not be convicted of public drunkenness under Georgia law.
The defense rests so the offensive line can get back to work.
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