This, however, is the real world, which means that thousands of Dallasites will spend St. Patrick’s Day doing the exact opposite — i.e., getting smashed and making all manner of terrible decisions. The question for these people is whether their hangover is physical and lasts for a morning or metaphorical and dogs them for years. An arrest for public intoxication or DWI, both of which spike on major heavy-drinking holidays like St. Patrick’s Day, New Year’s and Independence Day, can cause serious personal embarrassment and scare off potential employers.
The Observer spoke with two criminal defense attorneys with extensive experience in PI and DWI cases, Jonathan Apgar and Tim Clancy. Based on their advice, we’ve compiled a kind of best-practices guide for avoiding arrest or, failing that, minimizing the chance of conviction.
Don’t Do Anything Stupid
There’s nothing illegal about wandering around drunk. Doing so only becomes criminal, according to Texas law, when someone is “intoxicated to the degree that the person may endanger the person or another.”
The wording is so broad and the probable-cause burden cops have to clear to legally justify an arrest is so low that police can handcuff anyone with so much as a whiff of alcohol on his breath whether he poses evident danger or not. Apgar sums up law enforcement’s approach as, “If in doubt, arrest them for PI.” He says, “I’ve had clients taken out of cabs and Uber cars and taken to jail.”
That’s not to say that Dallas cops are running around sniffing people’s breath. “I tell people you have to bring attention to yourself to get arrested for PI.” Clancy says. That takes some effort during St. Paddy’s Day festivities, but certain things — fighting, screaming profanities, passing out on the sidewalk — tend to attract police attention. So, the most effective way to avoid arrest is to not act like a drunken asshole. “You know what the scene is like,” Apgar says. “You've got thousands of people and 90 percent of them are intoxicated and they are not going to be taking everybody to jail.”
As an added layer of insurance, Clancy recommends being accompanied by a sober friend. “If everyone's drunk, it's very hard to reason with a police officer.” The trick there is finding a buddy who doesn’t mind spending a sober St. Paddy’s Day babysitting their drunk friends, which is a feat in and of itself.
Keep Your Mouth Shut
Assuming that you couldn’t find a sober friend and you insist on doing something sufficiently obnoxious to alert police to your utter inebriation, a public intoxication arrest is all but guaranteed. That means you’ll be spending the next six to 12 hours in the City Marshal’s Detention Center in Deep Ellum, aka the drunk tank.
You won’t be able to talk your way out of the handcuffs. “My advice is to keep your mouth shut — respectfully,” Clancy says. Be polite and cooperate with the officer, but don’t give them anything that can be used at a hypothetical trial. Dallas police never perform breath or blood tests for public intoxication arrests and rarely administer field sobriety tests, but if they do, you have a legal right to refuse, which attorneys say you should take advantage of. There is no upside to participating in field sobriety tests, which are designed to produce evidence of guilt, not innocence.
Apgar recommends asking the officer whether you are legally required to take the field sobriety test. “If the officer says you have a legal obligation to do the tests, he or she is lying,” Apgar says. “If the officer correctly says you are not legally obligated to do any tests, you should politely say, ‘I’d rather not do any tests — I have a lawyer friend who said the tests are unreliable.’” Refusing more directly might not play well to a jury, if it comes to that.
Do Not — Repeat, DO NOT — Just Pay the Fine
Public intoxication is a Class C misdemeanor, so the case can quickly be resolved by paying a $391 fine. Don't.
“The last thing you ever want to do is pay a fine,” Clancy says. Paying the fine is equivalent to agreeing to a guilty conviction, which will follow you around until you die. “The Class C PI stuff, it’s the same level as a traffic ticket, but it has worse consequences for [the] future,” Clancy says.
Fighting a public intoxication case takes several months on average. Having experienced legal representation, someone who knows both the law and has relationships with the municipal prosecutors and judges who handle the cases, dramatically increases the chances of a successful outcome. “As soon as you get out of jail, contact a lawyer — preferably me,” says Apgar, who estimates that he’s handled more than 2,500 PI cases over the past eight years.
Here’s where your polite silence really pays off. While it’s extremely easy for police to justify a PI arrest, making the charge stick is another matter. The standard for proving public intoxication is the same as the standard for proving murder. A prosecutor must convince a jury beyond a reasonable doubt that you are guilty. In the absence of field sobriety, breath or blood tests, with an officer’s testimony as the only real piece of evidence, doubt is relatively easy to sow.
“Most of my clients don’t want to risk going to trial and possibly being convicted, so if I can’t find a basis for the PI charge to just be flat-out dismissed, I then work out a conditional dismissal of the PI charge prior to trial,” Apgar says. “Usually it means my client pays a reduced fine, but in exchange the court dismisses the PI charge after a short period of time, usually 90 days.”
A small fraction of the cases actually go to trial. In Clancy’s experience, about half of those are dismissed before proceedings really get underway because the arresting officer doesn’t show up to testify or prosecutors have a change of heart. The remaining cases are something of a crapshoot, and outcomes depend heavily on the mindset of the six-person jury that hears the case. “They can go either way at trial,” Apgar says.
Get the Case Expunged
Even if you successfully beat a public intoxication charge, the arrest itself remains on your record. “That’s there forever,” Clancy says. The negative consequences of an arrest can, however, be avoided by having one’s records expunged.
The process is straightforward. A petition is filed with a county-level court, which passes it along to the district attorney’s office for review. If the DA’s office agrees — and in dismissed public intoxication cases, it almost always does — the court will issue an order of expunction that makes it as though, for all practical purposes, the arrest never happened. It won’t show up on background checks and you can legally deny the arrest ever occurred.
Don’t Drink and Drive — But If You Do …
DWI is a much harder charge to beat than public intoxication. For one, prosecutors typically have actual evidence in the form of field sobriety, blood or breath tests. In addition, because first-time DWI is a Class B rather than Class C misdemeanor, the charge won’t be dismissed just because the cop doesn’t show for trial. “They will reset the case until [the] officer is available,” Clancy says.
Still, many of the same principles apply. “The police can only pull you over if they see you commit a traffic offense or if you aren’t technically breaking any traffic laws but your driving is suspicious enough to give the cops reasonable suspicion [e.g. driving too slowly, while weaving within your lane].” Again, keeping a low profile is key.
This is easier said than done, particularly on heavy-drinking holidays when special detachments of officers, their overtime funded by federal grants, are swarming the streets in search of drunk drivers. On such nights, innocuous offenses like failing to stop precisely on the stop line often prompt traffic stops. Again, you should be polite and cooperative but not too cooperative. Leading questions like “How much have you had to drink tonight?” should be treated as land mines. Again, you have a right to refuse field sobriety, breath and blood tests, and you should do so, politely.
“Everything is being video and audio recorded from the moment you are pulled over until the moment you are booked into jail, so refrain from making any incriminating statements or talking about how much you had to drink, etc.,” Apgar advises. “One day a jury may be watching and listening to it all, and the scales may tip in your favor if you are polite and respectful on video as opposed to being a cocky douchebag with an attitude asking the cop, 'Do you know who I am?”"Refrain from making any incriminating statements or talking about how much you had to drink, etc."
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With DWI, unlike public intoxication, police can and frequently do contact a judge to obtain a search warrant that allows them to compel a blood test. This is the “no refusal” of the “no refusal” initiatives police trot out on major holidays, but Apgar says that forced blood draws are becoming more common in day-to-day drunk driving enforcement as well.
The existence of a blood test showing a blood alcohol content above the legal limit of 0.08 makes beating a DWI charge hard but not impossible, especially if the test is only slightly above the limit. In such cases, you can make a plausible argument that alcohol was still entering the bloodstream at the time of the traffic stop and thus you were legally sober while driving. If the test comes back three times the legal limit, such arguments are useless.
Of course, you can avoid the problem entirely by being a decent human being and refraining from drinking and driving.
Get Drunk in North Richland Hills
The chances of getting arrested and convicted for public intoxication depend a lot on where you are getting drunk. In Apgar’s experience, Carrollton is among the most aggressive cities when it comes to prosecuting public intoxication, treating its officers' police reports as the gospel truth. The best, Apgar says, is North Richland Hills. “The prosecutor there, he and I sit down and look over the police report. If there is nothing in the police report to show [that the suspect posed] imminent danger, he'll throw the case out.”
Unfortunately, the St. Paddy’s Day celebration in North Richland Hills sucks.
