Drunk in Public

Being drunk in public is a criminal offense in Virginia, not a traffic-style infraction, even though it is usually written on a summons and can be paid without going to court. Virginia Code § 18.2-388 says: “If any person is intoxicated in public, whether such intoxication results from alcohol, narcotic drug, or other intoxicant or drug of whatever nature, he is guilty of a Class 4 misdemeanor.” The maximum penalty is a fine of up to $250 and there is no jail, but a conviction goes on your criminal record and stays there unless and until it is sealed. Most people who call us about this charge are worried less about the fine than about what the record will mean for school, work, a security clearance or immigration. This page explains what the Commonwealth has to prove, where these cases are usually decided, what prepaying actually does, what the record consequences are, and how we can help.

At a glance

• The charge: intoxication in public, § 18.2-388, a Class 4 misdemeanor. Alcohol, drugs or any other intoxicant count.
• The penalty: a fine of up to $250 under § 18.2-11. No jail is authorized for a Class 4 misdemeanor.
• Prepayment: the charge is on the Supreme Court of Virginia’s uniform fine schedule at a $25 fine plus a $61 processing fee. Paying it is a written appearance, a waiver of the court hearing and a plea of guilty.
• The record: a misdemeanor conviction. It is not on the list of offenses Virginia seals automatically, but it may be sealed by petition after a seven-year waiting period under § 19.2-392.12.
• The court: the General District Court of the city or county where the alleged offense occurred, as identified on your summons; the court date and the prepayment deadline are printed on the summons.

What the Commonwealth Must Prove

The statute has two elements, and the prosecutor must prove both beyond a reasonable doubt.

• In public. The Code does not define “public” for this offense, and the question is not who owns the property. In Crislip v. Commonwealth (2001), the Court of Appeals held that a man on his own front porch, in open view of the road and the neighboring homes, was in public. A place out of view of any public road may not be. The facts of the particular place matter.
• Intoxicated. Courts apply the definition in § 4.1-100: “a condition in which a person has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance, or behavior.” In McGhee v. Commonwealth (2010), the Supreme Court of Virginia confirmed that the odor of alcohol alone does not prove intoxication, although odor together with other observed effects can. The statute reaches intoxication from drugs and other substances as well as alcohol.

Drunk in public charges are often written alongside other charges from the same encounter, such as disorderly conduct or, for people under 21, underage possession of alcohol. Each charge stands on its own and has its own consequences.

Where These Cases Are Decided

A drunk in public case is almost always decided on the officer’s observations, because there is usually no breath or blood test. These are the questions we go through, and each one goes to an element the Commonwealth has to prove.

Were you in public? Crislip concerned a front porch visible from the road and neighboring homes. For a sidewalk, parking lot, bar entrance or another location, we examine the particular setting and public visibility rather than treating the case as a rule covering every place of that type. A back yard screened from the road, the inside of a private home, or a hotel room is a different question. Where you were standing when the officer first saw you, and whether you were asked or told to step outside before the summons was written, can decide the case.

What did the officer actually observe? The definition in § 4.1-100 is about observable effects: speech, balance, coordination, appearance, behavior. An officer who smelled alcohol and heard you admit to drinking has not described intoxication; under McGhee, the Commonwealth needs more. We read the summons and the officer’s notes for what was actually seen, and we ask whether what was seen has another explanation, such as fatigue, a medical condition, an injury or simply being upset.

Was it intoxication at all? The statute covers drugs and other intoxicants, but the Commonwealth still has to prove the condition, not guess at the cause. A medical episode may explain signs that do not establish intoxication. A prescription, however, is not itself a defense: § 18.2-388 also covers intoxication from other drugs, and the evidence must establish whether the statutory condition existed.

Was there a detoxification center? Where a court-approved detoxification center exists, the statute allows an officer to authorize transport there “in lieu of arrest,” and no one may be involuntarily detained there. If that is what happened, there may be no charge at all, and we check.

Which law are you charged under? Some cities and counties charge public intoxication under their own ordinance rather than § 18.2-388. The code section on your summons tells you which, and the wording can differ.

When the facts do support the charge, the conversation turns to the outcome and the record. For a student, a clearance holder, a licensed professional or a non-citizen, the conviction can matter far more than the $25 fine, and part of our work is making sure that who you are and what was happening that night are in front of the prosecutor and the court. An alcohol education class or counseling, where it is appropriate, is something we discuss with you before anyone enrolls. That work is separate from whether the Commonwealth can prove the two elements, and we keep the two apart when we talk with you.

What Changed in 2020

Older versions of § 18.2-388 also made it a crime to “profanely curse or swear” in public. The General Assembly removed that language in 2020, so profane swearing by itself is no longer a crime under this section, and the current statute covers public intoxication only. Older articles and even some older summons forms still mention swearing; the law does not.

Prepaying Is a Guilty Plea

Because § 18.2-388 is on the uniform fine schedule, you can resolve the summons by paying the scheduled $25 fine and $61 processing fee, a total of $86 before any other authorized fees, before your court date. The rule that allows prepayment describes what you are doing when you pay: entering a written appearance, waiving the court hearing and pleading guilty. Prepayment is not available when the charge involves an injury to a person. The result is a misdemeanor conviction that appears on a Virginia criminal history check exactly as if a judge had found you guilty after a trial. The convenience is real, but so is the record, and it is worth a conversation with a lawyer before the deadline on the summons.

What a Conviction Does to Your Record

A drunk in public conviction is a Class 4 misdemeanor on your criminal record. Virginia’s record-sealing law seals a short list of misdemeanor convictions automatically after seven years; § 18.2-388 is not on that list in § 19.2-392.6. A conviction under § 18.2-388 may instead be sealed by petition under § 19.2-392.12 after a seven-year waiting period, measured from the latest qualifying event, with no new qualifying convictions and the other requirements met. For a drunk in public conviction, the petitioner must also demonstrate rehabilitation under § 19.2-392.12(F)(3), along with meeting the other eligibility requirements. Sealing limits public access rather than destroying the record; authorized government access and disclosure obligations in specified settings can remain. Until it is sealed, the conviction can appear in background checks for employment, housing, professional licensing, security clearances and immigration purposes. If the charge ends in an acquittal or a qualifying dismissal, the record may qualify for expungement by petition under § 19.2-392.2. A deferred dismissal is not automatically eligible for ordinary expungement. Our record sealing page explains the current law in more detail.

How We Handle a Drunk in Public Case

We start with the summons and the officer’s account: where you were, what the officer observed, whether anyone was tested, and what was said. We tell you candidly how the evidence lines up against the two elements, what the realistic paths are, and what a conviction would and would not mean for your situation. Fees vary by charge; we tell you the fee before you hire us, and court fines and costs are separate.

Ryan Rambudhan has practiced law for 13 years. Ryan Rambudhan and Benjamin Schaefer started the firm in 2014, and our four attorneys are in the General District Courts of Fairfax, Prince William, Arlington and Loudoun almost every day, with Alexandria, Stafford and Fauquier on our regular schedule. Criminal defense, DUI and serious traffic charges are all we do. Our office is in Fairfax, across the street from the county courthouse.

Frequently Asked Questions

Talk With a Northern Virginia Drunk in Public Lawyer

A drunk in public summons feels minor until you read what prepaying it does. At NOVADefenders we will go through the summons and the officer’s account with you and tell you what we think before you decide anything. Our criminal defense page covers the other charges we handle.

Call 703.273.6431 at any hour and you will speak with a real person. The consultation is free, and you can also contact us online.

Reviewed by attorney Ryan Rambudhan | Updated October 16, 2026