Though I’ve never been in handcuffs, I’ve been detained for public drunkenness three times in Kutztown: 2018, 2019, and 2024.
Each time, I was walking home from a bar or party late at night. In every citation, the officers wrote some variation of:
“To wit, defendant was stumbling on sidewalk.”
That wording appeared each time. Their suspicion was based primarily on my alleged “stumbling.”
The second time it happened, it was the same cop who cited me the first time. Already dealing with some other legal issues at the time, I decided to contest the second citation. I brought in my lawyer for another $500.
Our defense was fairly straightforward. We argued that walking home was the responsible choice compared to driving. In court, the officer seemed to misremember small details and gave testimony I believed was inaccurate.
The officer also introduced breathalyzer evidence. In DUI proceedings, breath-testing standards are much stricter. But public drunkenness cases operate differently because the statute does not require proof of a specific BAC threshold. Instead, Pennsylvania’s public drunkenness statute states:
18 Pa. Cons. Stat. § 5505 — Public drunkenness and similar misconduct
“A person is guilty of a summary offense if he appears in any public place manifestly under the influence of alcohol or a controlled substance … to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity.”
In other words, the state has to show two things:
- that a person was “manifestly under the influence,” and
- that they may have endangered themselves, others, or property.
From my perspective, I was simply walking home and minding my own business. I didn’t believe there was any real way to prove I was a danger to anyone.
I lost the case.
Fortunately, the Berks County legal system is not as all-encompassing and interconnected as people sometimes fear, so the consequences ended with a several-hundred-dollar fine rather than broader fallout.
Now, whether or not you think I deserved the citation is beside the point. The more important question — one that affects everyone — is this:
How did I lose the case, and how does the Berks County legal system actually interpret laws like this in practice?
The Elasticity of “May”
The key word is “may.”
Legally, this grants enormous interpretive flexibility. A person need not actually endanger anyone. The state need only argue that danger was possible.
But almost any human being “may” become dangerous under the right circumstances.
A sober person holding a pen in a courtroom may stab someone. A driver may suddenly lose control of a vehicle. A pedestrian may impulsively shove another person.
Human life always contains latent possibilities of danger.
The difference, courts would argue, is context. A judge does not evaluate pure abstract possibility but “reasonable inference” based on observable conditions.
Yet this distinction becomes unstable once paired with the second ambiguous phrase in the statute: “manifestly under the influence.”
“Manifestly Under the Influence”
Unlike DUI statutes involving blood-alcohol thresholds, public drunkenness often depends heavily on officer interpretation:
- slurred speech,
- stumbling,
- odor of alcohol,
- emotional behavior,
- glassy eyes,
- confusion,
- or perceived instability.
In practice, this produces a structural asymmetry in credibility.
The intoxicated defendant’s interpretation of events is often discounted as unreliable precisely because they are alleged to be intoxicated. Meanwhile, the officer’s interpretation is institutionally privileged as trained observation. The result is circular:
- the officer says the defendant appeared intoxicated;
- the defendant denies dangerousness;
- the denial itself becomes less credible because intoxication has already been presumed.
The officer’s narrative becomes the reality accepted by the court.
Preventive Logic and the Expansion of State Discretion
Modern criminal law traditionally punishes completed acts:
- assault,
- theft,
- destruction of property,
- fraud.
Preventive public-order statutes operate differently. They criminalize perceived risk before actual harm occurs. This logic is not unique to public drunkenness. Similar tensions appear in:
- vagrancy laws,
- loitering statutes,
- disorderly conduct,
- stop-and-frisk frameworks,
- and “quality of life” policing more broadly.
These laws often survive constitutional scrutiny because courts interpret them narrowly in theory while enforcing them broadly in practice. The danger lies not merely in the statute itself, but in the discretion it grants:
- police determine intoxication,
- police infer potential danger,
- judges defer to police credibility,
- and the low evidentiary stakes of summary proceedings discourage extensive factual challenges.
In this framework, the line between preventing harm and criminalizing appearance becomes increasingly thin.
The Problem of the Unfalsifiable Standard
Consider the practical implications of the phrase “may endanger.”
If no harm occurs, the state may still argue harm could have occurred.
If the defendant behaved peacefully, the state may argue intoxication made danger possible anyway.
If the defendant disputes the characterization, their testimony may be discounted due to alleged intoxication.
At a certain point, the accusation becomes difficult to falsify.
This creates the perception — whether legally accurate or not — that once “manifest intoxication” is established, guilt becomes almost automatic.
Indeed, I heard a judge openly acknowledge this logic. A defendant may not have conclusively been dangerous, but the state need only show they “may have been.”
That subtle shift matters enormously.
The law no longer evaluates what happened. It evaluates what might have happened.
Public Order vs. Liberal Criminal Theory
Defenders of these statutes argue they are necessary tools for maintaining public safety and preventing escalation before tragedy occurs. Critics counter that this preventive framework risks undermining liberal principles of criminal law:
- presumption of innocence,
- objective standards,
- and punishment based on conduct rather than perceived condition.
The deeper philosophical question becomes: At what point does preventing possible disorder justify punishing hypothetical danger?
