Police discretion in law creates
By Amber Williams
Curtis Clark knows everything there is about
alcoholism… except how to quit drinking. At
age 60, he has been arrested 58 times, 10 of
which landed him in prison, all for something
many are guilty of every weekend — being drunk
But Clark is a habitual offender. Admittedly,
he is a drunk — "a sot," as he puts
it — but alcoholism itself is not a crime, according
the U.S. Supreme Court. Yet Clark and approximately
40 others are currently serving one- to two-year
sentences in Iowa prisons for excessive public
intox convictions, as reported by the Iowa Department
of Corrections (IDOC).
Meanwhile, Iowa prisons are packed, and staff
is slim. Iowa prisons currently house almost
9,000 inmates total, and about 25 percent of
them are there for "public order"
crimes, which includes public intox, the IDOC
The legality and necessity of the public intoxication
laws have been debated among legislators, lawyers,
policy-makers and offenders throughout the years
and across the country, and for good reason.
After all, Iowa laws allow for intoxication.
It's legal to serve booze, drink booze and become
drunk. But what about when it's time to go home?
According to the language of the law, once you
are officially intoxicated it is not legal to
go into public — whether to walk, hail a cab
or get towed in a Radio Flyer.
"Public intoxication is a violation of
both city ordinances and state law," Clark
wrote in a recent letter to Cityview sent from
the Newton Correctional Facility. "Typically
the city citation involved a night in jail and
a sober visit in front of the court. It seemed
appropriate, and should the visitor recognize
the problem, he was offered help. However, it
is becoming more prevalent to charge the individual
under state statutes rather than the city citation.
At this point, the sot's problem becomes the
taxpayers'. The concerned citizen needs to look
at where his responsibility/liability begins
This issue arose in August in Naperville, Ill.,
when the city council there voted to delete
public intoxication from the municipal code
altogether, because the law was "too broad
and unnecessary." The city attorney, Margo
Ely, even went as far to call the code "unconstitutional"
because it violates the U.S. Supreme Court's
ruling that prohibits criminalizing a person
for being an alcoholic or a drug addict.
"There was a case that came along that
basically said some public intox ordinances
that punish just the status of being under the
influence are not constitutional," Ely
explained. "So we suggested an amendment
to our ordinance to add some affirmative act
in addition to the status of being under the
influence. The city council decided it wasn't
a necessary cause of action, though, because
we felt our police had sufficient tools to handle
Curtis Clark has 55 public intox charges
on his record. Submitted photo
The Naperville City Council chose to fall back
on the state law, just as Des Moines does. That
way, whether or not a defendant was drunk only
mattered in terms of adding to or taking away
from that person's credibility in court, Ely
Naperville's decision to strike public intox
from the city code was based on a 1962 U.S.
Supreme Court ruling, Robinson vs. California.
The ruling cited the Eighth and Fourteenth Amendments,
basically stating that legally sanctioning a
person for an addiction is "Cruel and Unusual
Punishment." It was the first case in which
the Supreme Court applied the Eighth Amendment
against the state governments through the Fourteenth
Amendment. Before Robinson, the Amendment had
only been applied against the federal government.
Des Moines has no official public intox code
on the books, other than a rule stating, "No
loud or boisterous language shall be permitted
in any place where beer, wine or liquor is sold,
and such place shell be conducted in a quiet
and orderly manner." Still, the Polk County
Jail books almost 50 citizens a day, on average,
citing the Iowa Code (123.46), which says, "A
person shall not be intoxicated or simulate
intoxication in a public place."
That means, according to the law, if you look
and act drunk enough that the cops think you're
intoxicated, you can be arrested, regardless
of whether or not you actually are intoxicated.
The power of discretion
Iowa law gives police the power of discretion,
which means, "If an officer can find signs
of impairment, that's public intoxication,"
according to Sgt. Chris Scott of the Des Moines
Police Department. The .08 blood-alcohol level
required for an operating while intoxicated
charge does not apply to public intoxication,
"There's no magic number. If the officer
comes up and sees a person being loud and obnoxious,
calling attention to himself, smells of alcohol,
has slurred speech and glossy eyes, that's the
standard we go by," Scott said. "We
always offer a breathalyzer to document how
much they've been drinking. Sometimes they show
signs of impairment, and it's because they're
on marijuana. They agree to take a breathalyzer,
and it comes up zeros."
So people who are stoned in public are charged
with "simulated intoxication" instead,
according to the law, which is sanctioned the
same as a public intox charge. Although some
defendants dispute the charges and take it to
trial, defense attorney Robert Rehkemper said
few succeed in front of the judge.
"For all intents and purposes, you lose.
It comes down to credibility. Who's the judge
going to believe, a cop or a person charged
as a drunk?" Rehkemper said. "We've
fought those battles before. They have the uniform
and the badge. It comes with the territory that
officers have a presumed credibility."
And why shouldn't they, asks Ely. After all,
as a society we accept that the police, as our
public servants, are better trained and qualified
to judge such case by case incidents than anyone
else. And "a high majority of police calls
deal with somebody who is intoxicated,"
according to Scott.
"That's why we employ them," Ely said.
"I think they absolutely have to have discretion
in what they do because we trust them with the
use of force and to maintain peace. They have
to have discretion in assessing a situation
and finding the best course of maintaining public
As Ely points out, the law already puts a lot
of constraints on police in how they exercise
the law, making their jobs "very challenging
and difficult and subject to significant levels
of scrutiny," she said.
"Police officers function in a fish bowl.
Everything they do is scrutinized not only by
the public but by courts," Ely said. "They're
very accountable. Everything is subject to constitutional
scrutiny and the judicial system. They're subject
to more liability than any other occupation."
Still, with regard to simulated intoxication,
does Iowa leave "too much discretion up
to the officers," as Rehkemper warns? He
believes, along with more specific definitions
of what is considered a "public place,"
an abolishment of the simulation aspect of the
code should be considered by Iowa lawmakers.
Sgt. Chris Scott of the Des Moines
Police Department. Photo by Amber Williams
"It's a convenient charge to add because
it doesn't take much to prove it. Simulation
is kind of the creation of Iowa legislature.
I'd be surprised if other states had that in
their codes. It's a clever addition," he
said. "I doubt they'll ever abolish the
law, but it's not a bad idea. There are other
ways — other laws that better address the person's
actual behavior, such as trespass, harassment
and interference with official acts. I don't
know that public intox is necessary. But they
don't want to do that because it takes away
from officer discretion. The only thing they
seem to want to do is create more ways to regulate
Behavior. That's the key word as far as the
police are concerned. We don't know what kind
of behavior Clark was exhibiting all 47 times
he was arrested for public intox, because he
was arrested again on Sept. 6 for… you guessed
it, public intox, and last we knew he was back
in the Polk County Jail. But his long rapsheet
shows no signs of violent behavior. Other than
public intox convictions, Clark has a couple
of fifth-degree thefts on his record, "for
stealing alcohol," he admits, and a trespass,
which was also alcohol-related.
Sgt. Chris Scott with the Des Moines Police
Department said public intox charges are usually
accompanied by other charges such as disorderly
conduct, urinating in public or assault. Others,
like Clark, are picked up simply for being,
or appearing to be, drunk in a public place
with no other crime committed.
"Generally with public intox, people are
getting pretty belligerent and safety issues
arise, and they need dealt with," explained
Polk County Attorney John Sarcone. "They
usually get credit for time served, and that's
the end of it. We can cite people, and they
can have somebody come get them. It all depends
on the state of the person. Some people are
belligerent drunks, and some people are happy
drunks. If there's a victim, that's a little
While others might have been sent home, what
about those who have nowhere to go? Often they
are taken to jail by default, Scott said.
Profiting from weakness
"I don't blame anybody for my situation,"
Clark said two days after being released from
prison on Sept. 2. "What I did hurt the
people I love, and it hurt me, but the government
keeps trying to make a buck off of it, and that's
Defense attorney Robert Rehkemper
of Gourley, Rehkemper and Lindhold PLC,
Attorneys at Law in Des Moines
In a letter to Cityview, Clark referenced the
character, Otis, from "The Andy Griffith
Show," identifying with "the town
drunk" to make a point comparing the harshness
of today's public intox laws compared to the
old days, when sots were tossed into the drunk
tank to sleep it off and then sent home without
sanctions and court appearances.
"Whether Otis was riding a cow into town
or Barney Fife was attempting to rehabilitate
him, you knew the episode would be entertaining,"
Clark wrote. "He was portrayed as a misguided,
gentle man who had some redeeming qualities.
He was never pictured as a bad guy. This was
TV, and everyone knew that drinking too much
was unacceptable no matter how often it happened."
The "real bad guys," as Clark puts
it, were always trying to swindle the good citizens
of Mayberry or rob their bank. By the end of
the episode, the "unscrupulous felons"
were hauled off to the state pen, rather than
sent to bunk with Otis in the city jail, Clark
"I'm not aware of any Mayberry jails out
there anymore. However, there are still a lot
of ‘Otis'-es out there, and the humor has been
lost," he wrote. "No one wants to
see some shabby person stumbling down the street
or passed out in the alley. Granted, it's not
on a par with robbery, assault, selling drugs
or other felonious acts.
"My experience tells me that I am an Otis
without the humor. It also tells me that it
does affect you (society/tax payers). Are you
willing to pay for the guilt trip? It doesn't
matter, because someone made that decision for
you, unfortunately, and it was in the interest
of those who make a living off of our community's
"Who allowed you to pay for my defense,
incarceration, fines and treatment? My drunken
behavior is now your expense, and, due to that,
I have seen a glimpse of the felon's world."
Although public intoxication is a simple misdemeanor
offense, Clark has had so many that every time
he gets picked up for being drunk in public,
it's considered an aggravated misdemeanor due
to his habitual offender status. And he entered
the "felon's world" last April when
he violated his parole.
In all, Clark has racked up almost $30,000 in
fines since 2002. Most of his arrests earned
him $50 to $100 penalties each and a night or
two in jail. But by 2006, the District Attorney
had enough. Clark was convicted of his first
of eight aggravated misdemeanors for public
But Clark is not the average public intox arrestee.
He's undoubtedly an example of excess. Few people
require so many warnings and sanctions in order
to develop more compliant behavior. Still, in
this society, where alcohol is a social norm,
public intoxication is a fairly easy charge
to earn. And for the alcoholic, multiple charges
could lead to some hard time.
How to be drunk in public (without getting
"A lot of people we find are quiet, peaceful
and responsible when they drink. They find ways
to get home without any police contact. Others
require police to intervene," Scott said.
"A lot of times what happens is, downtown
people become a problem — they're not dispersing
or their actions call attention. We know at
1:45 a.m. they've probably been consuming alcohol,
and then they create these problems for other
So the best advice offered by both Scott and
Rehkemper is to not draw attention to yourself.
"Your best bet is to keep your mouth shut
and keep on walking home, or wherever you're
going," Rehkemper advised.
However, if you do get charged with public intox,
here's a bit of free legal advice he has to
"The part of the public intox law that
I find the most beneficial — its one saving
grace — is the fact that it can be expunged.
It's almost a benefit to the person to get charged
with public intox instead of other crimes because
if you don't pick up another charge for two
years, it's off your record."
The moral of the story? If you choose to drink
in public, watch your step... and your mouth.
$85.72 Daily cost to house an inmate in an
$31,287.80 Annual cost to house one inmate
in an Iowa prison.
8,969 Total head count for Iowa inmates as
of July 2011.
$280.6 million Average annual cost to house
Source: Iowa Department of Corrections