Resisting arrest charge

[brent0025]

What is the name of your state?What is the name of your state? Texas

I was charged with a public intoxication and resisting arrest. My car was parked in a parking lot and i was inside of the car. The car was parked and the keys werent in the ignition. A police officer walked up to my car and knocked on the window and asked me to step outside, and so i did. He then proceeded to say I am taking u to jail for public intoxication. Well isnt the inside of my car not a public place? I did some research on this and the definition of a public place must be accessible to the public and it cant be just visible to the public,well my car isnt accessible to the general public, right? When handcuffed and placed in the back of the car. I noticed what looked like to be a unauthorized person driving my vehicle. Who is authorized to drive my vehicle if it isnt obstructing any motor vehicles, it was parked in a parking lot? I then knocked on the back window to get the police officers attention to ask him who was driving my vehicle, it was not a wrecker service. Why did my car need to be towed to begin with in a busy parking lot? He opened the car door and said it was being towed and they had to move it to the other side of the parking lot.
At that point I was standing outside of the door and the police officer was standing right next to me. Then a police officer tackled me to the ground and told me dont resist. Well i already had handcuffs on from the very beginning so i dont understand how i could be resisting? Furthermore they used very aggressive force and one officer put a boot on the side of my face while they were yelling at me. How do i get this charge dismissed because at no point did I resist arrest and the PI charge well, that should be dismissed even though I had a few beers.

 

[brent0025]

Anyone?

Any attorneys in the houston area or anywhere care to comment? Probably need to hire one as well.

 

[I AM ALWAYS LIABLE]

My response:

This is what happens to drunks.

IAAL

 

[seniorjudge]

What is the name of your state?What is the name of your state? Texas

I was charged with a public intoxication and resisting arrest. My car was parked in a parking lot and i was inside of the car. The car was parked and the keys werent in the ignition. A police officer walked up to my car and knocked on the window and asked me to step outside, and so i did. He then proceeded to say I am taking u to jail for public intoxication. Well isnt the inside of my car not a public place? I did some research on this and the definition of a public place must be accessible to the public and it cant be just visible to the public,well my car isnt accessible to the general public, right? When handcuffed and placed in the back of the car. I noticed what looked like to be a unauthorized person driving my vehicle. Who is authorized to drive my vehicle if it isnt obstructing any motor vehicles, it was parked in a parking lot? I then knocked on the back window to get the police officers attention to ask him who was driving my vehicle, it was not a wrecker service. Why did my car need to be towed to begin with in a busy parking lot? He opened the car door and said it was being towed and they had to move it to the other side of the parking lot.
At that point I was standing outside of the door and the police officer was standing right next to me. Then a police officer tackled me to the ground and told me dont resist. Well i already had handcuffs on from the very beginning so i dont understand how i could be resisting? Furthermore they used very aggressive force and one officer put a boot on the side of my face while they were yelling at me. How do i get this charge dismissed because at no point did I resist arrest and the PI charge well, that should be dismissed even though I had a few beers.

Read the police report for reasons you were arrested. You were obviously so drunk you had no idea what you were doing.

 

[CdwJava]

He then proceeded to say I am taking u to jail for public intoxication. Well isnt the inside of my car not a public place?

Your car (and you) was IN a public place - the public parking lot.

I did some research on this and the definition of a public place must be accessible to the public and it cant be just visible to the public,well my car isnt accessible to the general public, right?

Good try - but wrong.

Why did my car need to be towed to begin with in a busy parking lot?

For safety, liability, and per state law and department policy. In my state we do it, too.

At that point I was standing outside of the door and the police officer was standing right next to me. Then a police officer tackled me to the ground and told me dont resist.

Presumably you were doing something he didn't want you to ... or you were trying to move away. I doubt he just tackled you for practice.

Well i already had handcuffs on from the very beginning so i dont understand how i could be resisting?

People can kick, run, bite, spit, and do many other things with handcuffs. Yes, you can resist and assault even in handcuffs.

Furthermore they used very aggressive force and one officer put a boot on the side of my face while they were yelling at me.

The key isn't "aggressive force" it is REASONABLE force. If the courts rule that reasonable force was used, then you are SOL.

How do i get this charge dismissed because at no point did I resist arrest and the PI charge well, that should be dismissed even though I had a few beers.

It sounds like you were being a pain in the tailpipe ... and either you are a royal pain all the time, or the alcohol caused you to be a pain. I'll give you the benefit of the doubt and assume it was the alcohol.

What does your attorney say about all this?

- Carl

 

[brent0025]

Rochelle WEAVER v. STATE of Arkansas

CR 96-472 ___ S.W.2d ___

Supreme Court of Arkansas
Opinion delivered September 30, 1996


1. Criminal law -- public intoxication -- definition of "public
place" speaks only in terms of accessibility. -- Under Ark.
Code Ann.  5-71-101(6) (Repl. 1993), the term "public place"
is defined as "a publicly or privately owned place to which
the public or substantial numbers of people have access"; the
definition speaks only in terms of accessibility, not
visibility.


Thats where i draw my conclusion that the inside of my vehicle is not a public place. The inside of my car isnt a public park bench where anyone can sit down and rest. Thats the way I look at it.

And for the resisting arrest charge I finally got a hold of the police report and its mostly fabricated. I have a feeling this is one of those deals where its gonna be my word against his. He is a police officer that works the night shift, so hopefully he wont show up for court. If he doesnt show up, should be a automatic case dismissed.

 

[CdwJava]

Thats where i draw my conclusion that the inside of my vehicle is not a public place. The inside of my car isnt a public park bench where anyone can sit down and rest. Thats the way I look at it.

The court won't look at it that way. If that were so, then I could leave my house every day and commit all my crimes under cover of a cardboard box ... or even smoke, drink, and do anything else I wanted in my car as it would not be a public place.

Your CAR was in a public place, and you were IN the car ... it's not a game of tag where your car is "home base".

But, the court may get a good chuckle out of the argument - and a good laugh could mean the difference between probation and a small fine, so what the heck!


- Carl

 

[seniorjudge]

...Your CAR was in a public place, and you were IN the car ....

OP this rather obvious statement is something you seem to overlook. Why?

 

[brent0025]

I understand both points a view, but obviously this was a problem prior to me and went all the way to the supreme court. That prior post by me was a article I had found on the internet in regards to the Supreme Court decision on public intoxication in Arkansas. I should probably post the whole article because it was a situation just like mine. I believe I just found a loop hole in the system in my favor and I am going to go with it. The key to that prior supreme court ruling is the public must have access to that particular location and not just visiblility. Sure anyone can peer into my car window, but to step inside my car is something someone cant obviously do.

Usually a PI in Texas is a time served and your done scenario. Just dont want it on my record so I might have to fight it to get dismissed. The resisting arrest charge is what I am concerned about. I am 26 years old and have no priors on my record at all. And in these days corporate companies to very extensive background checks for jobs, by the time their done doing their background checks they know your dogs name.Would hate to lose a great job offer because of this. Dunno how this charge will play out. I have 2 options to either fight the case and hopefully get it dismissed or maybe a plea deal where I can get differed or something so its not on my record after 6 months or so of probation and no violations of my probation.

 

[CdwJava]

I understand both points a view, but obviously this was a problem prior to me and went all the way to the supreme court. That prior post by me was a article I had found on the internet in regards to the Supreme Court decision on public intoxication in Arkansas.

And because it was in AR it is completely irrelevant to your case.

Additionally, the facts in Weaver involved a vehicle parked on private property at an event which he was a guest. The issue there was whether the public had generally free access to the location, and they did not as it was a private party at a private residence. It is totally unrelated to your situation.

I should probably post the whole article because it was a situation just like mine.

Not even close: http://courts.state.ar.us/opinions/1996a/960930/cr96-472.txt

I believe I just found a loop hole in the system in my favor and I am going to go with it.

Good luck! Even lawyers can use a laugh.

The key to that prior supreme court ruling is the public must have access to that particular location and not just visiblility. Sure anyone can peer into my car window, but to step inside my car is something someone cant obviously do.

An Arkansas Supreme Court ruling has no bearing. But, go ahead and cite it - it's your time and money.

I have 2 options to either fight the case and hopefully get it dismissed or maybe a plea deal where I can get differed or something so its not on my record after 6 months or so of probation and no violations of my probation.

Maybe you can plea to the intoxication and they will drop the resisting charge. But I would really recommend talking to an attorney before you even THINK of trying to argue that your car in parking lot is NOT in public!

- Carl

 

[seniorjudge]

You obviously did not read the Weaver case; it had absolutely nothing to do with your situation:

She was drinking a beer on the tailgate of a pickup truck that was parked on the side yard of this residence. Because we cannot agree that this was a place to which the public or substantial numbers of people had access, we hold that the trial court erred in failing to dismiss appellant's case.

She was on private land in a private vehicle.

If you want to read the whole thing:

Rochelle WEAVER v. STATE of Arkansas

CR 96-472 ___ S.W.2d ___

Supreme Court of Arkansas
Opinion delivered September 30, 1996


1. Criminal law -- public intoxication -- definition of "public
place" speaks only in terms of accessibility. -- Under Ark.
Code Ann. 5-71-101(6) (Repl. 1993), the term "public place"
is defined as "a publicly or privately owned place to which
the public or substantial numbers of people have access"; the
definition speaks only in terms of accessibility, not
visibility.

2. Criminal law -- public intoxication -- pickup truck parked in
side yard of private residence was not place to which public
had access -- appellant's drinking-in-public conviction
reversed and dismissed. -- Where it was undisputed that
appellant was attending a private party at a privately owned
residence and was drinking a beer while seated on the tailgate
of a pickup truck that was parked in the side yard of the
residence, the supreme court could not agree that this was a
place to which the public or substantial numbers of people had
access; the supreme court, holding that the trial court erred
in failing to dismiss appellant's case, reversed and dismissed
appellant's drinking-in-public conviction.


Appeal from Washington Circuit Court; William Storey, Judge;
reversed and dismissed.
Everett, Shemin, Mars & Stills, by: John C. Everett, for
appellant.
Winston Bryant, Att'y Gen., by: Gil Dudley, Asst. Att'y Gen.,
for appellee.

Bradley D. Jesson, Chief Justice.
The appellant, Rochelle Weaver, was convicted of drinking in
public, Ark. Code Ann. 5-71-212(c) (Repl. 1993), sentenced to
thirty days in jail, and ordered to pay a $100.00 fine. The jail
sentence and all but twenty-five dollars of the fine were suspended
for one year. Appellant essentially claims that the trial court
should have dismissed her case because she was not drinking in a
"public place" within the meaning of the drinking-in-public
statute. We agree with her argument and reverse and dismiss. In
so holding, it is unnecessary for us to reach appellant's remaining
argument that the statute is unconstitutionally vague.
The relevant facts are not in dispute. On September 30, 1995,
at approximately 12:30 a.m., Officer Randy Nichols responded to a
complaint of a loud private party at a residence on Sam Street in
Johnson, Arkansas. Upon his arrival, he observed ten to twelve
people in the front yard of a private residence. Two males and two
females, including the appellant, Rochelle Weaver, walked to the
back of a small pickup truck that was parked in the side yard of
the residence. Appellant, who was over the age of twenty-one, was
seated on the tailgate drinking a bottle of Bud Light beer. She
was not intoxicated. Officer Nichols approached appellant and
arrested her for drinking in public. Appellant was convicted of
the offense in municipal court and appealed to circuit court.
Following a bench trial, appellant was again found guilty as
charged. This appeal followed.
Appellant first alleges that the trial court should have
dismissed the drinking-in-public charge because she was not
drinking in a "public place" within the meaning of the statute.
The drinking-in-public statute, Ark. Code Ann. 5-71-212(c) (Repl.
1993), reads as follows:
A person commits the offense of drinking in public
if that person consumes any alcoholic beverages in any
public place, on any highway, or street, or upon any
passenger coach, streetcar, or in or upon any vehicle
commonly used for the transportation of passengers, or in
or about any depot, platform, waiting station or room, or
other public place other than a place of business
licensed to sell alcoholic beverages for consumption on
the premises.

(Emphasis added.)
While we have not had occasion to interpret the term "public
place" as used in the above statute, we have had at least one
opportunity to interpret the term as used in the old public-
intoxication statute, then Ark. Stat. Ann. 48-943 (Repl. 1964).
In Berry v. City of Springdale, 238 Ark. 328, 381 S.W.2d 745
(1964), we held that Berry, who was seated in a vehicle parked on
a highway right-of-way approximately ten to twenty-five feet from
the paved surface of the road, was in a "public place." In so
holding, we referred to the Webster's Dictionary definition of
"public" as "a place accessible or visible to all members of the
community." Id. at 330. (Emphasis added.)
While the Berry case defined "public place" in terms of
accessibility and visibility, that case was decided before the
Criminal Code became effective on January 1, 1976. The applicable
chapter in the Code defines the term "public place" as "a publicly
or privately owned place to which the public or substantial numbers
of people have access." Ark. Code Ann. 5-71-101(6) (Repl. 1993)
(Emphasis added.) In short, the Code definition speaks only in
terms of accessibility, not visibility. The question thus becomes
whether the public or substantial numbers of people had access to
the place where appellant was drinking her beer, not whether
appellant was drinking in an area that was visible to the public.
Many courts have recognized that a private residence is not a
public place within the purview of statutes prohibiting
intoxication in a public place. 45 Am. Jur. 2d Intoxicating Liquors
36 (1969 and Cum. Supp. 1996). See also Royster v.State, 643
So.2d 61 (Fla.App. 1 Dist. 1994) (front porch of appellant's
residence is not a public place); Moore v. State, 634 N.E.2d 825
(Ind.App. 4 Dist. 1994)(back yard of a private residence is not a
public place); Haynes v. State, 563 N.E.2d 159 (Ind.App. 2 Dist.
1990)(area "off" a porch of a private residence is not a public
area); Commander v. State, 748 S.W.2d 270 (Tex.App.-Houston [14th
Dist.] 1988)(neither a private residence nor its yard or driveway
is a public place). At least one commentator has observed that
private homes have not ordinarily been regarded as public "even
though in some instances a number of persons are gathered there for
one reason or another." C.L. Feinstock, Annotation, Location of
Offense as "Public" Within Requirement of Enactments Against
Drunkenness, 8 A.L.R.3d 930 (1966 and Supp. 1996).
In this case, it was undisputed that appellant was attending
a private party at a privately owned residence. She was drinking
a beer on the tailgate of a pickup truck that was parked on the
side yard of this residence. Because we cannot agree that this was
a place to which the public or substantial numbers of people had
access, we hold that the trial court erred in failing to dismiss
appellant's case.
Reversed and dismissed.

 

[brent0025]

I read it but this segment caught my eye,

(Emphasis added.)
While we have not had occasion to interpret the term "public
place" as used in the above statute, we have had at least one
opportunity to interpret the term as used in the old public-
intoxication statute, then Ark. Stat. Ann. 48-943 (Repl. 1964).
In Berry v. City of Springdale, 238 Ark. 328, 381 S.W.2d 745
(1964), we held that Berry, who was seated in a vehicle parked on
a highway right-of-way approximately ten to twenty-five feet from
the paved surface of the road, was in a "public place." In so
holding, we referred to the Webster's Dictionary definition of
"public" as "a place accessible or visible to all members of the
community." Id. at 330. (Emphasis added.)
While the Berry case defined "public place" in terms of
accessibility and visibility, that case was decided before the
Criminal Code became effective on January 1, 1976. The applicable
chapter in the Code defines the term "public place" as "a publicly
or privately owned place to which the public or substantial numbers
of people have access." Ark. Code Ann. 5-71-101(6) (Repl. 1993)
(Emphasis added.) In short, the Code definition speaks only in
terms of accessibility, not visibility. The question thus becomes
whether the public or substantial numbers of people had access to
the place where appellant was drinking her beer, not whether
appellant was drinking in an area that was visible to the public.

 

[CdwJava]

You obviously did not read the Weaver case; it had absolutely nothing to do with your situation:

She was drinking a beer on the tailgate of a pickup truck that was parked on the side yard of this residence. Because we cannot agree that this was a place to which the public or substantial numbers of people had access, we hold that the trial court erred in failing to dismiss appellant's case.

Jinx!!

I barely beat ya to it!

- Carl

 

[CdwJava]

Brent, your interpretation - while creative and entertaining - is not going to impress the court for a host of reasons.

Plus, even your clipped portion refers to the PLACE and NOT to the vehicle. The key is the location Weaver was parked and not that he was sitting in the bed of his truck.

Go forward with this argument at your own risk.

- Carl

 

[brent0025]

Well thanks for the advice.... But I have a feeling I am chatting with police officers on this one, which of course would approach this from a prosecuting stand point and not a defensive standpoint. Should be interesting of how it plays out.... I should of been an attorney.


'An injustice anywhere is a threat to justice everywhere.'