Summary
characterizing the caselaw discussing unreasonable searches and seizures as “inapposite” in a case involving whether a defendant who was passed out in his car, which was parked on a public street, was disorderly in a public place: “But the point is that this defendant, though in his car, was in a ‘public place’ and the authorities are ample in support of that proposition.”
Summary of this case from People v. CarltonOpinion
Docket No. 2,480.
Decided June 27, 1968. Leave to appeal denied September 10, 1968. See 381 Mich. 774.
Appeal from Ingham, Salmon (Marvin J.), J. Submitted Division 2 May 2, 1967, at Lansing. (Docket No. 2,480.) Decided June 27, 1968. Leave to appeal denied September 10, 1968. See 381 Mich. 774.
Eugene D. Johnson was convicted of being a disorderly person. Defendant appeals. Affirmed.
Eugene G. Wanger, City Attorney, and William H. Van Duzer, Assistant City Attorney, for the City of Lansing.
Sinas, Dramis, Brake Werbelow ( John A.L. Hughes, of counsel), for defendant.
This case presents the novel question of whether a person can commit a crime while he is asleep. The lower court decided that it was possible, and, more specifically, convicted defendant-appellant of being a disorderly person.
The defendant, Eugene D. Johnson, was convicted under the code of the city of Lansing, section 22-13 (1) of being a disorderly person, viz., being under the influence of alcoholic liquor in a public place. He was fined $15, ordered to pay $10 costs or spend 10 days in the county jail.
Disorderly persons (as cited in appellant's brief): "It shall be unlawful for any person to be a disorderly person within the city.
"A disorderly person shall be any person who shall do any act or engage in any practice hereinafter enumerated, and any person who shall aid and abet another to do any such act or engage in any such practice:
"(1) Be under the influence of alcoholic liquor or any narcotic drug, or drink any alcoholic liquor, in any public street, alley, park or place."
The record in the case discloses that a police officer observed defendant's car apparently parked in a "no parking" zone. The officer stopped to investigate and noticed the defendant slumped over the steering wheel. The officer pounded on the door of the car and called to the defendant but got no response. The officer then opened the door of the car to see what was wrong. When he did, he was met with a strong odor of alcoholic beverage. The officer and his partner then lifted and pulled the limp defendant from his car and laid him on the lawn. The defendant's eyes (apparently opened at this point) were bloodshot, his clothes soiled and disarranged, and he smelled strongly of alcoholic beverages.
Defendant raises three questions on appeal. They are answered in the order raised.
First, defendant says it is quite incongruous and must be illegal to be charged with being "disorderly" while asleep. The term "disorderly person" includes those "under the influence" of liquor in a public place; those who drink alcoholic liquor in a public street, et cetera.
Obviously not every person who drinks liquor in a public place need be drunk, under the influence, or even boisterous to be brought within some of the provisions of the "disorderly person" ordinance. So while there may be a modicum of layman's logic in defendant's assertion, we must recognize that "disorderly person" as used here is a legal term of art encompassing specific types of conduct prohibited by the ordinance. There is ample proof in the record that defendant violated one of these categories, and while it is true that defendant was asleep, the court can take judicial notice that overconsumption of alcohol can lead to loss of consciousness in some people. Under all of the circumstances in this case the sleep factor did not militate against the crime of being a disorderly person but rather was further evidence in support of the charge.
In the instant case, then, the officers were quite justified in concluding that defendant was "under the influence" though asleep and quite law-abiding in most respects. No Michigan or other authority is found on this specific aspect of the case, but cases where sleeping motorists have been convicted are not uncommon. Arkansas, for example, has decided a very similar case. In Berry v. City of Springdale (1964), 238 Ark. 328 ( 381 S.W.2d 745), the defendant was convicted though found asleep in a truck parked 10 to 20 feet from the public highway. Admittedly this specific point was not raised or passed upon by the court.
It can be argued, and was by defendant, that society should not punish one who, having drunk, pulls over to the curb to "sleep it off" rather than drive while drunk. Certainly such a course of action is the lesser of two evils, but the wisdom of the ordinance — which we think defensible — is not subject to judicial review.
Defendant next questions whether a person inside of his automobile on a public street is in a "public place" within the meaning of the ordinance. Defendant cites several Michigan cases ( e.g. People v. Lee, 371 Mich. 563; People v. Zeigler, 358 Mich. 355) and concludes that since automobiles are insulated against unreasonable search and seizure they are not public places. No question of unlawful search and seizure is raised in the "statement of questions," nor is there any present in the case that we can discern. But even for the purpose mentioned, the above cases are inapposite. The inhibition against unreasonable search and seizure remains whether defendant is in the car drunk or sober, or whether defendant was outside the car standing on the curb. But the point is that this defendant, though in his car, was in a "public place" and the authorities are ample in support of that proposition. Berry v. City of Springdale, supra; People v. Belanger (1966), 243 Cal.App.2d 654
( 52 Cal.Rptr. 660); Miles v. State (1966), 247 Ind. 423 ( 216 N.E.2d 847); Walker v. State (1961), 171 Tex Cr 379 ( 350 S.W.2d 561).
Finally, defendant contends the ordinance in question is invalid because it contravenes a State statute, CL 1948, § 750.167 (Stat Ann 1965 Cum Supp § 28.364), which deals with "disorderly persons". Defendant points out that the statute uses the words "drunk or intoxicated" whereas the ordinance uses the words "under the influence or alcoholic liquor."
"Any person who shall be drunk or intoxicated or engaged in any indecent or obscene conduct in any public place; * * * shall be deemed a disorderly person."
If this were a conflict, it would be fatal. What the legislature permits a city may not prescribe without express authority therefor. See Richards v. City of Pontiac (1943), 305 Mich. 666.
There are, as defendant points out, decisions which construe the language of the ordinance as being more restrictive than "drunk or intoxicated." But it is also true that there are a number of decisions which hold the terms to be synonymous. e.g. Sexton v. State (1940), 29 Ala. App. 336 ( 196 So. 742); Stevens v. People (1935), 97 Colo. 559 ( 51 P.2d 1022); Compton v. State (1937), 133 Tex Cr 211 ( 109 S.W.2d 761).
Black's Law Dictionary seems to use the words "drunk", "intoxicated" and "under the influence" synonymously. Drunk is defined:
"Drunk. A person is `drunk' when he is so far under the influence of liquor that his passions are visibly excited or his judgment impaired, or when his brain is so far affected by potations of liquor that his intelligence, sense-perceptions, judgment, continuity of thought or of ideas, speech, and coordination of volition with muscular action (or some of these faculties or processes) are impaired or not under normal control."
Intoxicated is defined:
"Intoxicated. Affected by an intoxicant, under the influence of an intoxicating liquor."
Since the ordinance can be sustained by construing the words "under the influence" to be synonymous with "drunk" or "intoxicated," and it is our duty to uphold legislation if possible ( Rathbun v. State of Michigan, 284 Mich. 521; City of Detroit v. Michigan Bell Telephone Company, 374 Mich. 543), we do construe the term "under the influence" in this ordinance to be synonymous with the terms "drunk" or "intoxicated" used in the disorderly person statute.
Affirmed.
T.G. KAVANAGH, P.J., and LEVIN, J., concurred.