State v. Cooke , 49 N.C. App. 384 ( 1980 )

WELLS, Judge.

Defendant brings forward two assignments of error, the first relating to the search incidental to his arrest which disclosed his possession of marijuana, the second relating to the trial court’s denial of his motions to dismiss. We will discuss these assignments in reverse order.

Defendant argues that he was not violating G.S. 14.444(a)(4) by shouting in the parking lot so that his conduct was not such as to give the officers probable cause to arrest him, that his arrest was illegal, and that all charges against him should have been dismissed.

We consider first the question of whether defendant’s conduct was such that the officers had reasonable grounds for believing that he was violating G.S. 14-444(a)(4) and thus committing an offense in their presence. This appears to be a case of first impression before our Courts.

Article 59 of Chapter 14 of the General Statutes was enacted by the 1977 Session of the General Assembly, see 1977 N.C. Sess. Laws, 2d Sess., ch. 1134. Its companion, Article 7B of Chapter 122 of the General Statutes, was also enacted under Chapter 1134 of the 1977 N.C. Session Laws. Both Articles are entitled Public Intoxication, and together, they set out the public policy of this State in dealing with persons intoxicated in public. In the same enactment, the General Assembly repealed former Article 42 of Chapter 14, entitled Public Drunkenness. A ■comparison of the provisions of the old and the new statutes quickly reveals the intent of the General Assembly to remove public intoxication from the list of statutory crimes in North Carolina.

Old G.S. 14-334 and 14-335, in pertinent part, provided as follows:

Public drunkenness and disorderliness. — It shall be unlawful for any person to be drunk and disorderly in any public place or on any public road or street in North Carolina; person or persons convicted of a violation hereof shall be guilty of a misdemeanor, and shall be fined not exceeding fifty dollars or imprisoned not exceeding thirty days in the discretion of the court.

Public drunkenness. — (a) If any person shall be found drunk or intoxicated in any public place, he shall be guilty of a misdemeanor and upon conviction or plea of guilty shall be punished by a fine of not more than fifty dollars ($50.00) or by imprisonment for not more than 20 days in the county jail.

New Article 59, in its entirety, provides as follows:

Public Intoxication.

§ 14-443. Definitions. — As used in this Article:

(1) “Alcoholism” is the state of a person who habitually lacks self-control as to the use of intoxicating liquor, or uses intoxicating liquor to the extent that his health is substantially impaired or endangered or his social or economic function is substantially disrupted; and

(2) “Intoxicated” is the condition of a person whose mental or physical functioning is presently substantially impaired as a result of the use of alcohol; and

(3) A “public place” is a place which is open to the public, whether it is publicly or privately owned.

§ 14-444. Intoxicated and disruptive in public. —

(a) It shall be unlawful for any person in a public place to be intoxicated and disruptive in any of the following ways:

(1) Blocking or otherwise interfering with traffic on a highway or public vehicular area, or

(2) Blocking or lying across or otherwise preventing or interfering with access to or passage across a sidewalk or entrance to a building, or

(3) Grabbing, shoving, pushing or fighting others or challenging others to fight, or

(4) Cursing or shouting at or otherwise rudely insulting others, or

(5) Begging for money or other property.

(b) Any person who violates this section shall be guilty of a misdemeanor punishable by a fine of not more than fifty dollars ($50.00) or imprisonment for not more than 30 days. Notwithstanding the provisions of G.S. 7A-273(1), a magistrate is not empowered to accept a guilty plea and enter judgment for this offense.

§ 14-445. Defense of alcoholism. — (a) It is a defense to a charge of being intoxicated and disruptive in a public place that the defendant suffers from alcoholism.

(b) The presiding judge at the trial of a defendant charged with being intoxicated and disruptive in public shall consider the defense of alcoholism even though the defendant does not raise the defense, and may request additional information on whether the defendant is suffering from alcoholism.

§ 14-446. Disposition of defendant acquitted because of alcoholism. — If a defendant is found not guilty of being intoxicated and disruptive in a public place because he suffers from alcoholism, the court in which he was tried may retain jurisdiction over him for up to 15 days to determine whether he is an alcoholic in need of care as defined by G.S. 122-58.22 or 122-58.23. The trial judge may make that determination at the time the defendant is found not guilty or he may require the defendant to return to court for the determination at some later time within the 15-day period.

§ 14-447. No prosecution for public intoxication. — (a) No person may be prosecuted solely for being intoxicated in a public place. A person who is intoxicated in a public place and is not disruptive may be assisted as provided in G.S. 122-65.11.

(b) If, after arresting a person for being intoxicated and disruptive in a public place, the law-enforcement officer making the arrest determines that the person would benefit from the care of a shelter or health-care facility as provided in G.S. 122-65.11, and that he would not likely be disruptive in such a facility, the officer may transport and release the person to the appropriate facility and issue him a citation for the offense of being intoxicated and disruptive In a public place.

Thus, by repealing the old and enacting the new, the General Assembly made clear its intent that mere public intoxication standing alone was no longer to be considered unlawful and further, that for there to be a chargeable offense, the intoxicated person must be disruptive in one or more of the ways described in G.S. 14-444(a), subsection (1) through (5).

The provisions of G.S. 14-447 to the effect that no person may be prosecuted solely for being intoxicated in a public place make it abundantly clear that no person may be arrested solely for being intoxicated in a public place. Those who are intoxicated but not disruptive may be assisted but not arrested. G.S. 122-65.11.

We hold that defendant’s observed conduct on the occasion of his initial arrest was not in violation of G.S. 14-444(a)(4) and that this charge against him should have been dismissed. We hold, nevertheless, that the complaint received by the officers, combined with the conduct they observed, gave them reasonable grounds to suspect that defendant was in violation of the statute and that they therefore had probable cause to make the arrest.

Our Supreme Court has stated that probable cause for an arrest has been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.

“The existence of ‘probable cause,’ justifying an arrest without a warrant, is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved.” [Emphasis supplied.]

State v. Harris, 279 N.C. 307, 311, 182 S.E. 2d 364, 367 (1971).

It is clear from the evidence that defendant forcefully resisted his arrest and in doing so, assaulted Officers Hines and Jarman. There was more than sufficient evidence to convict on these charges, and defendant’s assignment of error on these charges is overruled.

Defendant’s final assignment of error concerns the introduction — over defendant’s objection — of evidence of defendant’s possession of marijuana. In that the search of defendant was carried out incident to a lawful arrest, this assignment is overruled. See State v. Wooten, 34 N.C. App. 85, 237 S.E. 2d 301 (1977).

In that defendant’s convictions of violation of G.S. 14-444(a)(4) and of assaulting the officers were consolidated for judgment and sentence and as the convictions of assault support the judgment and sentence, defendant is not entitled to relief. See State v. Jeffries, 17 N.C. App. 195, 193 S.E. 2d 388 (1972), cert. denied, 282 N.C. 673, 194 S.E. 2d 153 (1973).

No error.

Judges Arnold and Erwin concur.