A Sobering Discussion on Drunk in a Public Place and Drunk and Disorderly

In Victoria, the law provides that it is an offence to be drunk in a public place.[1] It is also an offence to be drunk and disorderly in public.[2] Being drunk or intoxicated can include being unable to speak coherently, maintain an upright standing position or being unable to sit on a chair. In this article, we explore the elements of the offence, relevant definitions and possible defences to a drunk in a public place charge.

Elements of the Drunk in a Public Place Offence

To establish a ‘Drunk in a Public Place’ Offence, the Police must prove beyond reasonable doubt that you:

1. Were drunk or under the influence of alcohol; and
2. Were in a public place.

There is no legal definition nor evidentiary requirements of intoxication (e.g. breath analysis) to prove a level of ‘Drunkenness’ for this offence. However, ‘Drunkenness’ is generally understood to be an impairment of one’s physical and mental functioning or intoxication due to ingestion of alcohol, drugs or another substance.[3] It is normally interpreted by the Courts to be a standard that a reasonable person would describe as ‘drunk’.

‘Public place’ is defined by legislation to include a road or highway, side-street or thoroughfare, park, garden, reserve, railway station, public school, racecourse or public sporting venue.[4]

Elements of the Drunk and Disorderly Offence

Additionally, ‘Disorderly’ also does not have a specific definition, but generally involves disrupting the public through annoying or disorderly behaviour. However, the disorderly behaviour must be serious enough to constitute action and would not include behaviour such as merely singing or talking loudly.

Possible Penalties for Drunk and Disorderly

If you are found drunk in a public place, the maximum penalty is a fine only.[5] If found drunk and disorderly, for a first-time offence the maximum penalty is a fine and up to 3 days imprisonment.[6] For subsequent offences, the maximum penalty is a fine and 1-month imprisonment.

The Police may issue on-the-spot fines for being drunk in public. Police can also issue barring orders, which prohibit persons from attending (or going within 20 metres) of a particular licenced venue (pub, bar or club) for a period of time (between 1-6 months).

Available Defences

It is a defence to the charge if you are able to establish that you were not drunk at the time of the alleged offence.

Another defence is available if you did not voluntarily become drunk when the offence is alleged.[7] In circumstances where your intoxication was due to mistake, this can also be used as a defence.[8]  For example, you may have assumed that the drink you consumed was non-alcoholic. If you did not consume alcohol but displayed signs of intoxication due to the taking of prescription medication in accordance with the directions, this can also be used as a defence.[9]

Another defence is available if you are able to establish that you were not in a public place at the time of the alleged offence. For example, if you were on the driveway of private premises at the time.

Whilst being drunk in a public place is treated as a relatively minor offence, it is often coupled with other charges. Therefore it is important to seek legal advice regarding your specific case as soon as practicable.

[1] Summary Offences Act 1966 (Vic) s 13.
[2] Summary Offences Act 1966 (Vic) s 14.
[3] Crimes Act 1958 (Vic) s322T(1).
[4] Summary Offences Act 1966 (Vic) s 3.
[5] Summary Offences Act 1966 (Vic) s 13.
[6] Summary Offences Act 1966 (Vic) s 14.
[7] R v O’Connor (1979) 146 CLR 64; Crimes Act 1958 (Vic) s322T(5)(a).
[8] Crimes Act 1958 (Vic) s322T(5)(b).
[9] Crimes Act 1958 (Vic) s322T(5)(a)-(d).