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COA reverses public intox conviction based on potential danger

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The state’s claim that a man’s public intoxication conviction should stand because of possible danger he faced if he left an apartment complex while intoxicated was rejected by the Indiana Court of Appeals Thursday because the argument was merely speculative.

Police responded to two calls at an apartment complex indicating that Clyde Davis and another man had been fighting. After the first call, police noted Davis had been drinking, but concluded he could safely walk home. But Davis didn’t leave and the next morning, police came back after the second call and found Davis standing outside the building in a grassy common area. Police believed he was extremely intoxicated and concerned that if he tried to walk home, he could be struck by a car on the busy road. Officers arrested him and he was charged with and convicted of Class B misdemeanor public intoxication.

Davis argued that the state failed to prove he endangered the lives of himself or others for purposes of the public intoxication statute, as recently amended. The appeals judges reviewed several cases that deal with the new statute, including the Supreme Court’s recent decision in Thang v. State, to determine the common thread in these cases is past or present conduct by the defendant did or did not place life in danger.

“While the statute does not require that actual harm or injury occur, some action by the defendant constituting endangerment of the life of the defendant or another person must be shown. This is true even where an officer testifies that the defendant was a danger to himself or others,” Judge James Kirsch wrote. “Were it otherwise, citizens could be convicted for possible, future conduct. The policy behind the current public intoxication statute is to encourage intoxicated persons to avoid danger by walking or catching a ride rather than driving. Although we acknowledge that intoxicated persons may also create danger by walking in public places, that danger must have manifested itself in order for the State to obtain a conviction.”

In this case, there was no evidence Davis was in danger. The state argued that he was in danger of being struck by a car if he left the apartment complex, but that is just speculative and not proof beyond a reasonable doubt.

“The State may not convict Davis for what would or could have happened,” Kirsch wrote in Clyde Davis v. State of Indiana, 49A02-1311-CR-938.



 

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  4. Oh, and you fail to mention that you deprived the father of far FAR more time than he ever did you, even requiring officers to escort the children back into his care. Please, can you see that you had a huge part in "starting the war?" Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

  5. Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

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