Police may think that you are drunk if your speech, co-ordination, balance or behaviour is noticeably affected and they believe this is because you have been drinking alcohol, and you may be charged if they think you are drunk while in a public place.
What are public drunkenness offences?
There are three main offences that the police could charge you with:
- Drunk in a public place. Police may think you are drunk in a public place if your speech, co-ordination, balance or behaviour is noticeably affected by alcohol. The police may you and place you in until you sober up. They may also give you a fine.
- Drunk and disorderly in a public place. Disorderly behaviour is acting in a way that disturbs the peace or interferes with the comfort of people nearby. You can be charged if the police think your behaviour is intended to disturb, even if no one is actually disturbed by it.
- Drunk and behaving in a riotous or disorderly manner. The police may you with this if they think your disorderly behaviour is more severe. This means acting in a way that frightens someone in public.
What else can police do?
Ban you from an area
If police think that you have been violent or have damaged property, they can ban you for up to 24 hours from any area where alcohol-related violence has happened before
Ban you from a licenced place
Police can also give you a barring order (ban you) if you are in a licensed place like a bar, restaurant or night club and:
- you are drunk, violent or arguing
- someone in authority believes that there is a serious or immediate risk that another person will be harmed because you have been drinking.
- You must not go closer than 20 metres to the place you were banned from. You can be banned for:
- up to one month if this is the first time you have
- up to six months if you have been banned before.
You can be fined if you refuse to leave or if you go closer than 20 metres to that licensed place.
Police can still ban you even if you have not been charged or found guilty of an offence.
Police have power to ban someone from places where alcohol-related violence has happened before. People can only be banned from areas that have been identified as a ‘designated area’.
You are breaching (breaking) the order if you:
- refuse to leave the licensed place
- go closer than 20 metres to the place during the time that you are barred.
Police can issue on-the-spot fines for public drunkenness or for breaching a barring order.
Police can also issue fines on-the-spot or by post to people aged over 18 for a number of common offences, including:
- indecent language
- offensive behaviour
- consuming or supplying liquor on unlicensed premises
- failure to leave licensed premises when requested.
Arrest and custody
If you are arrested you will be taken into custody at a police station. You will normally only be kept in custody until the police think you are sober enough to leave – usually around four hours.
While you are in custody, police must check on you regularly to make sure you’re okay and must call for medical help if they think you need it.
Police have legal obligations when they arrest:
- young people: if you are under 18, your parent, or an independent person must be with you before you can be questioned. Depending on your age, there are also laws about things like searching you, examining your body or taking samples from it and taking your fingerprints. See .
- people with mental health issues: an (ITP) must be with you when police ask you questions, fingerprint you or if they take any samples from your body, such as hair. The ITP helps you and the police understand each other; they do not give legal advice.
- Indigenous people: the police must tell the and the Aboriginal Community Justice Panel that you’ve been arrested.
If there is a sobering-up centre in the area, the police may release you into the custody of a representative of the centre. You will not be charged with an offence.
As well as providing a safe place for people to sober up, these centres help people with alcohol-related problems. They can refer you to health services and other support services.
It is up to the police officer to decide whether to charge you with an offence. If they decide not to charge you, you may get a caution instead.
If you have been charged with one of these offences you will usually be bailed and allowed to leave the police station, unless you have been charged with other, more serious offences as well.
Going to court
What does the prosecution have to prove?
The prosecutor is the police or other authorised officer who argues the case against you in the courtroom. The prosecution has to prove that:
- you were drunk, and
- you were in a public place.
A public place can be a park, the street or other places where members of the public can go.
Whether you are guilty depends on the exact facts and circumstances of your case. Look at the ‘Details of the charge’ in your charge sheet to see what the police officer wrote about your offence. The magistrate refers to this in the courtroom.
What are my options at court?
Admit to the charges and ask for diversion
To get diversion you must admit that you broke the law. This includes everything the informant says in the statement of alleged facts. This means you tell the magistrate that you know you broke the law but you would like diversion. If you are not given a diversion recommendation, you can ask to adjourn the case.
The police prosecutor and magistrate are more likely to grant diversion if there was little or no property damage.
If you agree that you broke the law, you should tell the court that you are pleading guilty. During the court hearing, the prosecutor will read out the statement of alleged facts. The magistrate will find you guilty and give you a .
If you plead guilty the magistrate treats this as a sign that you are co-operating and may give you a less severe penalty.
Plead not guilty
If you believe that you did not break the law, or you disagree with what is in the statement of alleged facts, you must tell the prosecutor before your court date that you plan to plead not guilty. They will hold a summary case conference with you before your case is heard in court. If you still want to plead not guilty after the conference, tell the magistrate. The magistrate will adjourn (put off) your case for another day.
You will come back to court for a contested hearing. When you come back the magistrate listens to evidence from you and the police before making a decision. You should have a defence. Saying that you did not know you were breaking the law is not a good enough defence.
It is a defence if you did not know that there was an accident.
Can I adjourn today’s hearing?
You can ask the magistrate to adjourn (to put off) your case if you have a good reason. For example, to ask police about diversion or get a lawyer.
If you have not adjourned your case before and you are on summons, you may be able to get an adjournment without going into the courtroom. When you arrive at court, go to the counter and tell the staff you want an adjournment.
Will I get a conviction?
Although it is possible, it’s unlikely you will be convicted (be found guilty and given a penalty) for an offence of public drunkenness, unless there are other, associated offences – such as violence or obscene behaviour – or you have previously been found guilty by a court for this type of offence.
If you are convicted and you spent time in police custody when you were arrested, the magistrate will probably say that this is enough punishment for the offence and discharge you unconditionally.
What are the penalties if I am found guilty?
The magistrate may give you a fine. You can get:
- up to eight for being drunk in a public place
- up to 20 penalty units or three days in jail if it is the first time you are drunk and disorderly
- up to 20 penalty units or one month in jail if you have been found to be drunk and disorderly before
- up to 10 penalty units or two months in jail for drunk and behaving in a riotous or disorderly manner.
You should tell the magistrate about your income and things you have to pay for, and whether you support a family.
If you get a fine you can pay it straight away at court. If you do not pay the fine straight away, will send you a Court fine collection statement. This will tell you how much you owe and when the fine is due.
You can ask Fines Victoria for a payment plan if you cannot afford to pay the fine in one payment.
If you do not pay the fine when it is due, Fines Victoria may increase the fine. The court can issue a warrant for your arrest.
It is unlikely the magistrate will convict you for an offence of public drunkenness. However, they may convict you if they also find you guilty of other offences such as violence or obscene behaviour. They also may convict you if you have been found guilty of this type of offence before.
The magistrate can also choose to:
- find the charge proven and dismissed
- place you on an undertaking to behave well for a certain amount of time
- ban you for up to 12 months if you were found drunk in a designated area (an area where alcohol related violence has happened before).
- convict and discharge you without any other penalty.
Can I be put on a diversion program instead?
The activities may include:
- taking part in an alcohol-education program
- paying an amount of money to charity
- doing community service.
Once you have completed the conditions of your diversion program the charges against you are discharged. If you do not complete the conditions the case will be heard at court and you may be convicted.
What else might happen if I am found guilty?
The magistrate can make you pay for any damage caused to the other person’s property.
What happens in court goes into your criminal record.
- the finding of guilt
- a conviction if there is one
The court and the police can see your . Sometimes they can let other people know what is in your criminal record. A criminal record, especially with convictions, may make it harder for you to get some jobs or get visas to some countries.
Can I appeal the magistrate’s decision?
Yes. If you do not agree with the decision you can appeal to the County Court. You have 28 days to do this. Get legal advice before you decide. You could get a higher penalty.
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Reviewed 21 August 2022