MUNICIPALITY COULD ENACT AN ORDINANCE ALLOWING AN ARRESTING OFFICER TO RELEASE AN INTOXICATED INDIVIDUAL TO A RESPONSIBLE ADULT ANY TIME THE LOCAL JAIL FACILITY IS AT THE MAXIMUM CAPACITY; THE ARRESTING OFFICER DOES NOT HAVE REASON TO BELIEVE THE ARRESTEE WILL INJURE HIMSELF OR OTHERS, AND THE VIOLATION CONSTITUTES AN OFFENSE UNDER MUNICIPAL ORDINANCE.
A MUNICIPALITY WOULD NOT BE SUBJECT TO LIABILITY FOR THE RELEASE OF AN INTOXICATED ARRESTEE PURSUANT TO THE DESCRIBED ORDINANCE. THIS IS SO BECAUSE THE POLITICAL SUBDIVISION TORT CLAIMS ACT, 51 O.S. 151 ET SEQ., EXEMPTS POLITICAL SUBDIVISIONS AND EMPLOYEES ACTING WITHIN THE SCOPE OF EMPLOYMENT FROM LIABILITY FOR:
"ADOPTION OR ENFORCEMENT OF OR FAILURE TO ADOPT OR ENFORCE A LAW, WHETHER VALID OR INVALID, INCLUDING, BUT NOT LIMITED TO, ANY STATUTE, CHARTER PROVISION, ORDINANCE, RESOLUTION, RULE, REGULATION OR WRITTEN POLICY. . . ." 51 O.S. 155(4)(1988).
ON THE OTHER HAND, SITUATIONS RESULTING IN LIABILITY TO A MUNICIPALITY FOR THE RELEASE OF AN INTOXICATED ARRESTEE COULD ARISE. THE FACTS THAT WOULD GIVE RISE TO LIABILITY ARE INFINITE AND WOULD BE LEFT FOR A JURY TO DECIDE UNDER APPLICABLE STANDARDS.
IN SHORT, THERE IS NO HARD AND FAST LEGAL ANSWER TO YOUR SECOND QUESTION. EACH CASE MUST BE DECIDED ON ITS FACTS WITH CONSIDERATION BEING GIVEN TO WHETHER THE OFFICER MADE AN ARREST FOR A FELONY, A MISDEMEANOR OR A MUNICIPAL VIOLATION; WHETHER THE ARREST WAS PURSUANT TO A WARRANT AND WHETHER THE ARRESTEE'S RELEASE WAS CONTRARY TO STATE STATUTES OR IN COMPLIANCE WITH AN ESTABLISHED MUNICIPAL ORDINANCE OR POLICY.
(DAVID WALLING)