Introduction

In New South Wales (NSW), there is no specific offence for public intoxication, but police retain certain powers to manage intoxicated individuals in public places.

Understanding these regulations is essential for individuals affected by alcohol consumption in public, as well as for those interacting with law enforcement.

When Can Police Arrest You for Public Intoxication?

NSW does not have a specific “drunk and disorderly” offence. Public drunkenness was decriminalised in 1979. Police can deem a person intoxicated if their speech, balance, coordination, or behaviour is noticeably affected, and they reasonably believe it’s due to alcohol or drugs.

Move On Directions

Police in NSW have the authority to issue a move on direction to individuals who are intoxicated in a public place under specific circumstances. A move on direction requires the officer to reasonably believe that the person’s behaviour is disorderly or poses a risk to public safety, such as causing injury to others or damaging property. This direction typically mandates the individual to leave the area and refrain from returning for up to six hours. The direction must also be considered reasonable for the purpose of preventing injury or damage, reducing risks to public safety or preventing the continuation of disorderly conduct.

Failure to comply with a move on direction is an offence and may result in a fine of up to $220, with additional penalties for continued non-compliance.

Criteria for Detention

Police may detain an intoxicated individual in a public place if they are behaving in a disorderly manner or are likely to cause injury to themselves or others, pose a risk of property damage, or require protection due to intoxication. Under Section 206 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), detention is justified when one or more of these criteria are met. During detention, police will attempt to take the person to a responsible person, such as a family member, or to an authorised place of detention like a police station if no responsible person is available. The detention must end once the individual is no longer intoxicated and must allow them to contact a responsible person before release. 

Police Powers in Managing Public Intoxication

Search and Seizure

Police in NSW have specific powers regarding the search and seizure of intoxicated individuals. They can conduct a search if the person is arrested, has a warrant, or if there is a reasonable suspicion that the individual is carrying illegal items such as weapons or drugs. Additionally, consent to a search can also grant police the authority to proceed. It is crucial for individuals to understand that resisting or hindering a lawful search can lead to further legal complications.

Authorised Detention Places

When detaining an intoxicated person, police must ensure they are taken to an authorised place of detention, such as a police station or a designated sobering centre. The decision to detain someone in an authorised facility depends on several factors, including the individual’s behaviour and the availability of a responsible person to take custody. Police are required to provide necessary care, including food, drink, and bedding, and must release the individual as soon as they are no longer intoxicated. This process ensures the safety and well-being of the intoxicated person while maintaining public order.

Your Rights During and After Detention 

If you are an intoxicated person detained in an authorised place of detention, section 207 of LEPRA outlines further rights, including:

• Reasonable Opportunity to Contact a Responsible Person: You must be given a reasonable opportunity by the person in charge to contact someone who can take care of you.
• Separate Detention: As far as is reasonably practicable, you must be kept separately from any person detained in connection with the commission or alleged commission of an offence. If you are under 18, you must also be kept separately from individuals over that age.
• Appropriate Accommodations: You must not be detained in a cell unless it is necessary or impracticable to detain you elsewhere. Additionally, you must be provided with necessary food, drink, bedding, and blankets appropriate to your needs.
• Timely Release: You must be released as soon as you are no longer intoxicated.

Furthermore, section 210 of LEPRA states that police officers and detention officers are not liable for acts or omissions related to your detainment if done in good faith. 

Legal Defences and Protections

Individuals accused of disorderly conduct related to public intoxication have access to various legal defences and protections. Understanding these can significantly impact the outcome of their case.

Challenging Intoxication Status

Contesting the assertion of intoxication involves demonstrating that one’s behaviour was not significantly impaired by alcohol or drugs. This can be achieved by:

• Presenting Medical Evidence: Providing medical records or expert testimony that indicate minimal or no impairment.
• Witness Testimonies: Utilising statements from individuals who observed the behaviour, asserting that it did not warrant intoxication.
• Questioning Police Assessment: Arguing that the police officer’s evaluation of impairment was subjective or based on insufficient evidence.

By effectively challenging the intoxication status, individuals may avoid charges or reduce the severity of penalties associated with disorderly conduct.

Disputing Move On Directions

Move on directions issued by police can be contested if they are deemed unreasonable or improperly applied. Strategies include:

• Assessing the Reasonableness: Evaluating whether the direction was based on clear evidence of disorderly behaviour or posed a genuine risk to public safety.
• Gathering Contradictory Evidence: Collecting evidence such as witness statements or video footage that disproves the necessity of the move on direction.
• Legal Representation: Seeking advice from criminal defence lawyers to formally challenge the direction in court.

Seeking timely legal advice on a move on direction can prevent fines and additional legal consequences, ensuring that individuals are not unfairly penalised for non-compliance.

Conclusion

In NSW, while there is no specific offence for public intoxication, police have the authority to issue move-on directions and detain individuals who exhibit disorderly behaviour or pose a risk to public safety. It is essential to understand your rights during and after such interactions to ensure fair treatment and to navigate any potential legal consequences effectively.

If you encounter issues related to public intoxication or believe your rights have been violated, contact our experienced legal team today. Our trusted professionals possess unparalleled expertise in handling cases involving police powers and protecting your legal rights in NSW. Reach out now to secure the support you need.

Frequently Asked Questions