Request By:
Mr. William M. Nixon
Associate Professor
College of Law Enforcement
Department of Police Administration
Eastern Kentucky University
Richmond, Kentucky 40475-0957
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Suzanne Guss, Assistant Attorney General
This is in response to your request for an Attorney General's Opinion regarding the application of KRS 525.100. You have presented the following facts and question:
A police officer stops an automobile and arrests the driver for D.U.I. The officer discovers the passenger to be in an intoxicated condition. Does KRS 525.100 permit the arrest of the intoxicated passenger where the passenger is not presenting a danger to himself, other individuals, or property and is not annoying bystanders?
KRS 525.100 provides:
"A person is guilty of public intoxication when he appears in a public place manifestly under the influence of alcohol, or a controlled substance, not therapeutically administered, to the degree that he may endanger himself or other persons or property or unreasonably annoy persons in his vicinity." (Emphasis added).
For an arrest under this statute the accused must appear "manifestly under the influence of alcohol . . .", i.e. the accused must demonstrate some aberrant behavior before an arrest is authorized. KRS 525.100, Commentary (1974). The accused must also be intoxicated to the extent that he may endanger himself, or other persons, etc. It is not necessary that the accused engage in some act which endangers himself or others. If the passenger in a motor vehicle is intoxicated to the degree stated in the statute, he may be arrested even though he is not in the process of endangering himself, etc. The purpose of the arrest is to protect the accused and to prevent injury to others. KRS 525.100, Commentary (1974). This purpose would be defeated if the statute were interpreted to require the accused to place himself or others in danger before an arrest could occur.
Please note that the individual who does not appear to be "manifestly under the influence" will not fall within the scope of KRS 525.100(l). KRS 244.020 also prohibits public intoxication and provides that an individual merely be under the influence of alcoholic beverages. There is clearly a difference in the degree of intoxication proscribed by the statutes. (See OAG 76-29, enclosed herein). As this office stated in OAG 76-29, the factual situation at the scene and the degree of intoxication - either "manifestly under the influence" or "under the influence" - will determine which statute is applicable. By way of example, if the driver were arrested for D.U.I. on the highway, and the passenger exhibited some aberrant behavior indicating intoxication, then the passenger is conceivably chargeable under KRS 525.100 since the passenger's assumption of control of the vehicle would present an obvious danger to himself and others. If, however, the passenger were not intoxicated to this extent, he would remain subject to arrest under KRS 244.020 (See OAG 40-721, and OAG 73-117, enclosed herein).
We trust this information has satisfactorily answered your inquiry.