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Can a police office call you to come down from your porch then give you a breathalyzer then arrest for public intocication

Springfield, PA |

I was at a bar with my wife two guys jumped me I went to the hospital when I came home I went back to the parking lot to look for my lost chain the bar is two blocks from my house on the way home a cop pulled beside me at the corner of my house asked where I was goin I said home he drove off I got home was sitting on my porch the officer pulled up asked me to come here I came down off my porch he said breath into this gave me a breathalyzer then arrested me for public intoxication

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Attorney answers 5

Best Answer

There are several questions here and I would need some more facts to really answer your question. First, you should know that the crime of "public drunkenness" in PA requires that you pose a danger to yourself or someone else or that you are disturbing the peace in some way. Depending on the circumstances, your porch may or may not be considered "public."

I recommend you retain an experienced criminal attorney to represent you in this matter.

I am an attorney in Pennsylvania but I am not currently *your* attorney. Nothing in my communication should be construed as creating an attorney/client relationship. Please contact me if you wish to retain me as your counsel.


There needs to be some more facts. I would suggest that you contact and talk with an attorney to go over your options as well as any defenses. In addition, I would stop posting things on sites such as this one that anyone can read. Good Luck!!!


I highly suggest that you consult with a local criminal defense attorney. Based on what you've described, this sounds to be like a fightable case. Good luck.

Jasen Nielsen


Ask for a hearing; plead not guilty and fight the case. It is suggested that you retain a criminal defense attorney to maximize your options. Good luck.


The answer to your question would depend on several different factors that you would need to discuss with your attorney. Below are some common issues in public intoxication cases. You should not assume that any of these necessarily apply in your particular case.

To sustain a conviction of public intoxication the Commonwealth must prove that the accused appeared in a public place manifestly under the influence of alcohol to a degree such that he or she was a danger to himself, others or property,or annoys the persons in the vicinity. 18 Pa.C.S.A. Sec. 5505

The exact location of where the defendant is alleged to have appeared intoxicated is important to the analysis of a public intoxication case. For example, use of loud vulgar terms while standing on one's own porch may not justify an arrest for public intoxication. See, Commonwealth v. Biagini 654 A.2d 492 (Pa. 2007). The result may be different, on the other hand, if the porch is attached to an apartment which is part of a larger
complex -- assuming of course that the intoxication was to a degree that the defendant was a danger to others, himself, or property, or an annoyance to others in the vicinity. The distinction between a public/private place requires a case by case analysis of the facts and circumstances.

In addition, to be found guilty of public intoxication, a person must be in a public place voluntarily. Thus, where one who is intoxicated in a private place is ordered outside by police and into a public place, the conviction for public drunkenness will not stand. Under those circumstances, the accused's appearance in a public place is due to the police officer's command, and not the result of the accused's voluntary decision. Commonwealth v. Meyer, 431 A.2d 287 (Pa. Super. 1981).

Finally, any time that police demand a person to stop and/or demand a breath test, there are questions as to whether or not the police encounter was lawful under the Fourth and Fifth Amendments of the U.S. Constitution as well as Sections 8 and 9 of the Pennsylvania Constitution.

This is not legal advice for your particular case. It is impossible for any attorney to tell if any of the above legal principals are applicable to your case without knowing more facts. You should contact an attorney in your area.