Tim Evans

tim.evans@indystar.com

It takes more than just being drunk to get convicted of public intoxication in Indiana.

The law says you also have to be annoying.

But the Indiana Court of Appeals ruled in February that the term is unconstitutionally vague.

Attorneys for the state tried Thursday to convince the Indiana Supreme Court that the term is not vague during oral arguments on the state’s appeal of the February ruling.

The challenge comes after the appeals court overturned the conviction of Rodregus Morgan, an Indianapolis man whose alcohol-induced public conduct was found annoying by a police officer.

George Sherman, a lawyer with the Indiana Attorney General’s office, argued the law is not too vague if the determination is applied through the eyes of “a reasonable person.” But, under questioning from the justices, Sherman acknowledged the law probably is unconstitutional without that implied standard — which is not expressly stated in the statute.

Suzy St. John, one of Morgan’s attorneys, said she is not convinced the law would meet constitutional muster even if the reasonable person standard was written into the statute. She noted the threshold for annoying is just too wide — different, for instance, in a karaoke bar and at a public bus stop. A New England Patriots fan rooting for their team on a sidewalk filled with Colts fans outside Lucas Oil Stadium could be annoying, but does that really rise to the level of a crime that can send a person to jail?

Adding the reasonable person qualification to the law doesn’t fix anything, St. John argued, because the public still doesn’t know what is expressly prohibited or what may annoy another person. She also said there is no universal, hypothetical reasonable person profile to use in determining what is or is not annoying.

“There needs to be some standard,” she told the justices, “so a person can read the law and know what (conduct) is prohibited.”

A three-judge panel from the court of appeals agreed when it found the "annoying" standard unconstitutionally vague. A criminal statute "must include some 'scientifically objective measurement for compliance' so that the public is aware of the conduct that will subject them to arrest," the appeals opinion said.

"The (public intoxication) statute neither requires that a defendant have specifically intended to annoy another, nor does it employ an objective standard to assess whether a defendant's conduct would be annoying to a reasonable person," the February opinion noted.

"Instead, this section of the statute enables arbitrary and discriminatory enforcement because the illegality of any conduct — no matter how trivial or how substantial — is based solely on the subjective feelings of a particular person at any given time."

The legally troubling term, "annoying," was added when the public intoxication law was updated in 2012, said Joel Schumm, a professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.

The goal, he explained, was to limit officer discretion and narrow the law to cases where a person was causing harm or affecting others — but the lack of concrete definitions for the terms annoying and “alarming” still leave police with wide discretion.

Before the law was updated, Indiana was among 11 states "with broadly written public intoxication statutes," according to a 2011 Indiana Law Review note written by McKinney student Ian M. Fleming. Under the old law, the only requirement for a public intoxication charge was being drunk in a public place.

Thirteen other states, including Kentucky and Michigan, required some element of endangerment or disturbance, while 20 states "expressly ban criminally punishing public intoxication," the report said. The remaining states left public drinking rules to local jurisdictions.

Indiana's effort to clean up a law fell short, Schumm said. The legislature often defines terms used in laws, particularly when one can be widely interpreted, but lawmakers did not provide any definition in the public intoxication statute.

"That's a problem," he said.

Call Tim Evans at (317) 444-6204. Follow him on Twitter:@starwatchtim