Every state punishes people caught driving under the influence of alcohol. Many states also consider public intoxication a crime and frown on open containers in public places. Tailgate parties usually involve one — if not all — of these offenses, with fans often gathering in parking lots or other open spaces before sporting events to eat, drink alcohol and celebrate the upcoming game. So, how are tailgate parties considered legal?
Essentially, it boils down to personal responsibility.
Thomas Simeone, an attorney and adjunct law professor in Washington, D.C., says, “The acts of drinking and driving are independent of the tailgate party — you can go to a tailgate party and not drink at all.”
Since tailgaters typically bring their own alcohol and drinks are not sold at the event, in the case of most college games, or by the property owners, partiers are responsible for their own behavior.
The law does not allow citizens to be arrested or punished for actions they may take later. Therefore, events that occur prior to the actual violation are not considered part of the criminal activity.
Nuisance behavior on private property is generally not criminal
Casey Reiter, a criminal defense attorney in West Palm Beach, Florida, points out that drinking and driving is not illegal.
“A person who drives home after one beer is not necessarily committing a DUI,” she says. “A person cannot drink alcohol to the extent that his or her ability is impaired and then drive a vehicle.”
States impose a minimum blood-alcohol level so that there is a standard by which to judge a person’s impairment.
Nevertheless, parties can get out of control. People get drunk and make bad decisions. Police officers do not usually have jurisdiction on private property. Unless a person commits an actual crime, he or she cannot be arrested for public intoxication on private property. Since many stadiums are considered private property, they are treated similarly to someone’s own driveway or backyard.
Simeone adds that this is the reason many colleges attempt to curb tailgate parties. Behavior at such parties is better regulated by campus security than local law enforcement, sometimes for public relations reasons.
Adding legalized marijuana to the mix
Since Colorado and Washington have legalized recreational marijuana, police departments are finding themselves confronted with more challenging legal issues.
In Colorado, while it is legal to smoke pot, it is illegal to smoke in public. In fact, authorities are turning down requests for pot-friendly public events.
Unlike Colorado, Washington residents can smoke marijuana openly if they are on private property, which means it could be permissible at tailgate parties as long as those parties are held on private property. Although, according to Washington’s Initiative 502, lighting up in public places could get you fined.
On Nov. 5, 2014, voters in Alaska, Oregon, Washington, D.C., and South Portland, Maine, elected to legalize recreational marijuana use. Specific rules for consumption will be defined later. Residents in these locations should exercise caution in lighting up at their next tailgate party until legal authorities clarify what is permissible.
If you have a question about what is legal regarding alcohol and marijuana consumption and tailgate parties in your local jurisdiction, you’d be wise to consult a local attorney.