Wednesday, April 27, 2011

People v. Schlimbach (Cal. Ct. App. - March 25, 2011)

When the police want to shut down a bar (or in this case, a cafe), one of the ways to do it is to go in and see if they're repeatedly serving intoxicated customers.

That can be good, or that can be bad.  It's good if the bar is indeed repeatedly serving drunks.  That creates a public nuisance.  It's bad if the bar isn't doing so, but you can bust them anyways.  By aggressively claiming that someone's "intoxicated" when they're not.

So let's ask the central question:  What does it mean to be "intoxicated"?

We know what it means for driving:  .08 BAC.  At least in California.

But that's for driving:  something that requires coordinated reflexes and that involves a serious danger of death or personal injury.  What about being "intoxicated" for purposes of just walking around?  What BAC are we talking about, for example, for being "intoxicated" in public?  Or, as in this case, for serving such people?

Let's take the extremes.  The cafe here was busted seven times for serving alcohol to an intoxicated person.  Each time the police took the BAC of the customer.  One of the times, the customer had a BAC of .24 and clear objective signs of that level of intoxication.

That's sloshed.  For a 200-pound guy, that's over ten beers, shots, glasses of wine, etc.  Even for a 120-pound woman, that's more than a six-pack.  You're intoxicated.  You can be arrested.  So can the bar.

But let's take the other extreme here as well.  One of the arrests at the bar was because they served a guy who was tested at .068.  That's three beers for a 200-pounder, or two for the 120-pounder.  I'm stunned that you'd say a person like that is "intoxicated."  Sure, they're feeling good after a couple of beers.  They probably shouldn't drive, but even then, they don't have a .08.  Heck, I've seen judges with above a .068.  Not just a few.  You mean to tell me they could validly be arrested for being "intoxicated" in public?!  Wow.

Then there's the group with above-.08 BACs.  One arrest was for a BAC of .127.  Another was for .14.  Four beers for your 120-pound female friend.  She surely can't drive.  But can she be arrested for public intoxication?  Sure, she's likely louder than usual.  Perhaps more fun, and potentially more frisky.  Does a BAC like that count as "intoxicated"?  Tough call.

You can punt on all of this and say:  "Well, it depends on their 'objective' signs."  But by "objective" you're really meaning "subjective".  Because what counts as "slurring" speech or an "unsteady" gait is very much in the eye of the beyolder at this level of drunkenness.  A disinterested observer may well say that the person is doing just fine, whereas a police officer looking to make a bust will say she's "clearly" drunk -- and be able to list off numerous "objective" signs of "obvious" intoxication.

It seems to me that there's at least some minimum at which we want to say that, as a matter of law, someone is neither "intoxicated" nor "obviously" intoxicated.  At least for purposes of standing up (i.e., being in public or being served in public); I leave for another day what the right rule should be for dangerous activities such as driving, where existing law has both a hard cap (.08) as well as a soft cap ("under the influence").  I think you should be entitled to know that you can have roughly X number of beers and be safe.  Or, if you're a bar or cafe, to know that you can serve a stone cold sober patron X number of glasses of wine without getting your license revoked.

To me, a BAC of .08 would be an easy number, though since that number's for driving, I'm not sure that a higher number (.10? .12? higher?) wouldn't be more appopriate for merely being present in public.  Clearly since they're busting people for .06's here, we need to have some limit, otherwise police discretion is virtually infinite, and everyone -- even judges and their families -- are at risk.

The Court of Appeal affirms the license suspension here, and since the cafe is serving multiple people in a very short time span with .20+, I have little problem with the result.  But the Court of Appeal's silence with respect to both a definite limit as well as the arrests of patrons for as little as .06 disturbs me.  I would have wanted something more here.  Something in the other direction than what the Court of Appeal does, which (in footnote 6) is to say that one patron was "in fact" obviously intoxicated because he had a .14.

There's value, to me at least, in a limit that's understandable and gives fair notice.  Particularly for situations such as drinking that are confronted by a large portion -- indeed, a majority -- of the population.  One should not be forced to guess whether it's okay to have three beers with dinner, under penalty of arrest if your view is inconsistent with an officer's.  When objective measures are possible (as here), they should set a cap.