Protective Custody is different than a crime. Protective Custody is not getting charged with a crime and you just can’t arrest somebody because they are intoxicated. At times if there is not a crime, the police officer determines that action is necessary to assist an incapacitated person; or a person that is in danger of being incapacitated without his/her consent. They can take that person to a residence treatment facility or a police station. Police should get consent ahead of time and in order to determine if someone is intoxicated the police can ask the person to submit to different tests of coordination, breath tests, speech testing and things of that nature.
If somebody is incapacitated and brought to the police station, they have the right to request and have administered a breathalyzer test and should be informed of such rights.