Opinion No. 45-4636
January 11, 1945
TO: Mr. Richard F. Rowley Acting District Attorney Clovis, New Mexico
{*4} We have your letter of January 3, 1945, wherein you request an opinion of this office as to whether or not a man is drinking in public if he is seated in his own automobile, or as a guest in someone else's automobile, with the door closed, and the car parked in a lighted area near a public dance hall, but not on the street or highway, and whether or not such drinking would be considered to be done in a public place if the car was actually parked on a public street or highway.
From a review of the authorities, I find it impossible to do more than give a general discussion of the applicable rules concerning the determination of what constitutes a public place. And then, of course, these rules must be applied to each particular situation to determine whether or not the particular place is public.
In the cases of Lee v. State, 33 So. 894, 895; Fanklin v. State, 8 So. 678, 679; Henderson v. State, 59 Ala. 89, 91; and White v. State, 39 Tex. Cr. Rep. 269; 45 S. W. 702, it was held that a place so near and so open that persons traveling the highways can see card and dice playing thereat is abstractly and per se a public place.
It was held in Brannon v. State, 39 So. 983, that on a prosecution for playing at a game of cards at a public place it was erroneous to charge that if the place was within 75 yards from a certain public road, and could be seen therefrom, it was a public place; the question being whether the parties who were playing could be seen from the highway.
It was also held in Morris v. District of Columbia, 31 Atl. 2d 652, that a public vehicle, such as a taxicab, plying its business on a public street, is a public place.
It would appear, from the above cases, that if the automobile was parked in a lighted area near a public dance hall wherein the general public could have observed the drinking, that the persons were drinking in a public place. It would further appear, from the above cases, that drinking in an automobile on a public highway would be drinking in a public place.
By HARRY L. BIGBEE,
Asst. Atty. General