Alcohol & Drugs: DUI, DWI An office wrote me a DWI with open container

[spiderjason]

An office wrote me a DWI with open container... I was on a motorcycle with a full face helmet on... The bottle of alcohol was a 22 oz bottle of beer and the bottle was clear... ALso, the bottle was in a brown paper bag then it was placed inside a plastic bag... The plastic bag was tied to my handlebars where the bottle was sideways... There was no way I could be drinking and driving down the road with a full face helmet on and on a motorcycle... On top of that the bag was tied to my handlebars where I couldn't get to the bottle... The cop then took the bottle and bag off the handle bars... Then showed the bottle of beer to the camera on the cop car... Then opens the bottle of beer in front of the camera and pours the beer out... Im sure he wrote DWI with open container to try and make the case stronger... My question is since he wrote DWI with open container and anyone can clearly see that it wasn't a open container can this case be dropped because it clearly shows the cop is lying and providing untrue information to try and make the case stronger? ALso this happened in Texas.

 

[mightymoose]

Were you arrested for drunk driving or just cited for the container?
If only cited, why did the officer remove and open the bag? Did you give permission to do so?
Are you under 21?

 

[army judge]

An office wrote me a DWI with open container... I was on a motorcycle with a full face helmet on... The bottle of alcohol was a 22 oz bottle of beer and the bottle was clear... ALso, the bottle was in a brown paper bag then it was placed inside a plastic bag... The plastic bag was tied to my handlebars where the bottle was sideways... There was no way I could be drinking and driving down the road with a full face helmet on and on a motorcycle... On top of that the bag was tied to my handlebars where I couldn't get to the bottle... The cop then took the bottle and bag off the handle bars... Then showed the bottle of beer to the camera on the cop car... Then opens the bottle of beer in front of the camera and pours the beer out... Im sure he wrote DWI with open container to try and make the case stronger... My question is since he wrote DWI with open container and anyone can clearly see that it wasn't a open container can this case be dropped because it clearly shows the cop is lying and providing untrue information to try and make the case stronger? ALso this happened in Texas.

Well, the law is Texas is NOT what you believe it to be.

An open container doesn't mean it must be opened at the time of the stop, but it has been opened, and you're transporting it (not in accordance with the law).

If the container has BEEN OPENED, it must be kept away from the driver.

From what you describe, I'd be more worried about the DWI, than I would the open container part.

Plead not guilty, hire a lawyer (or ask the court to appoint one to represent you, if you can't afford to hire your own), keep your mouth shut, and speak with your lawyer.

Open Container Law - Texas Penal Code Section 49.031
§ 49.031. Possession of Alcoholic Beverage in Motor Vehicle.

(a) In this section:

(1) "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.

(2) "Passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:

(A) a glove compartment or similar storage container that is locked;

(B) the trunk of a vehicle; or

(C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.

(3) "Public highway" means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.

(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.

(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:

(1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or

(2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.

(d) An offense under this section is a Class C misdemeanor.

(e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.

 

[spiderjason]

Were you arrested for drunk driving or just cited for the container?
If only cited, why did the officer remove and open the bag? Did you give permission to do so?
Are you under 21?

I was arrested for DWI... No, im not under 21... The bottle of beer was never opened before the cop opened it and poured it out...

 

[spiderjason]

Hi, the bottle of beer was never opened before... The only time the bottle was opened was when the cop got it out of the plastic bag showed it to the camera then opened it and poured it out... In my opinion and im not a lawyer a cop writing that is was open is trying to make the case stronger by lying and giving false information...





Well, the law is Texas is NOT what you believe it to be.

An open container doesn't mean it must be opened at the time of the stop, but it has been opened, and you're transporting it (not in accordance with the law).

If the container has BEEN OPENED, it must be kept away from the driver.

From what you describe, I'd be more worried about the DWI, than I would the open container part.

Plead not guilty, hire a lawyer (or ask the court to appoint one to represent you, if you can't afford to hire your own), keep your mouth shut, and speak with your lawyer.

Open Container Law - Texas Penal Code Section 49.031
§ 49.031. Possession of Alcoholic Beverage in Motor Vehicle.

(a) In this section:

(1) "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.

(2) "Passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:

(A) a glove compartment or similar storage container that is locked;

(B) the trunk of a vehicle; or

(C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.

(3) "Public highway" means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.

(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.

(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:

(1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or

(2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.

(d) An offense under this section is a Class C misdemeanor.

(e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.


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[BayState]

What was the initial reason for the stop? What was your BAC?

 

[mightymoose]

You will likely get around the open container charge in the plea process. Lawyer up and it will get worked out.

 

[army judge]

OP, I submit that your story will differ from the officer's version. In the end, your case will be heard in County Court. What we say here,or you for that matter, will be of no moment in that court.

That said, if the officer says it was opened, I suppose that will be all that matters.

But, the open container charge is the least of your worries. Even if you beat that charge, the DWI/DUI charge is the real life changer. Those are unbelievably costly and life changing.

Plead not guilty, ask for a lawyer, and shut up. Speak of this ONLY to YOUR lawyer.


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[spiderjason]

You will likely get around the open container charge in the plea process. Lawyer up and it will get worked out.

Well I don't think there is an open container charge... Because if it was I would have a ticket for an open container... It is a DWI charge and with the DWI it says open container... All l of this should be on camera... The cop showed it to the camera... Then opened the beer in front of the camera then poured it out... My point is the cop is lying and trying to make the DWI case stronger and the camera on the cop car should prove the lie... Cops shouldn't be lying to try and make a case stronger... If the camera shows this it should mess with credibility of the cop...

 

[spiderjason]

What was the initial reason for the stop? What was your BAC?

A tag was out on the motorcycle... That is why he pulled me over... BAC I don't know yet... I refused field test and breath test and they took me to draw blood... Which I also refused many time saying a wanted a lawyer and a warrant from the judge before they take my blood... I wasnt trying to fight them at all and all they did was threaten me over and over again that if I didn't let then draw blood they were going to file assault charges on me...

 

[army judge]

A tag was out on the motorcycle... That is why he pulled me over... BAC I don't know yet... I refused field test and breath test and they took me to draw blood... Which I also refused many time saying a wanted a lawyer and a warrant from the judge before they take my blood... I wasnt trying to fight them at all and all they did was threaten me over and over again that if I didn't let then draw blood they were going to file assault charges on me...

Do you think anything you're saying s helpful?

It isn't.

By driving on a license you give IMPLIED CONSENT to a breathalyzer or blood draw. A warrant isn't required. That is where this took a turn for the worse. We have no authority in this matter. Convincing us is useless. Plead not guilty, request a lawyer, and just stop blabbing about this. It could be your BAC will register below .01. So, now you clam up and wait.


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[spiderjason]

Im not trying to convince you guy(girls) of anything... All I am trying to do is get information by researching... I have been doing a ton of research on the internet then decided to join this forum to get information... I requested and was approved a court appointed attorney... SO I do have an attorney just haven't meet them yet... I went to court Nov 26th... I wasn't indicted yet but neither was most people that went to court that day... I have a new court Date Jan. 7th... I am just trying to get as much info as I can before I go to court because I do want to fight the case... I'm not going to put my life in the court appointed lawyers hands without trying to find out as much info as I can... I think that would be a mistake for anyone to trust everything a lawyer says whether it is a court appointed or not...

Plus, I wasn't blabbing I was answering a question someone else asked me!!!! I just added some more info because I was curious if they can really do what they did to the question that was asked... ARMY JUDGE... I appreciate all you input but if you don't want to answer anymore of my questions that is your right and don't respond... But it should be my right to ask question... Isn't this what this forum is all about to help and educate people... Not just tell people to get a lawyer...

Do you think anything you're saying s helpful?

It isn't.

By driving on a license you give IMPLIED CONSENT to a breathalyzer or blood draw. A warrant isn't required. That is where this took a turn for the worse. We have no authority in this matter. Convincing us is useless. Plead not guilty, request a lawyer, and just stop blabbing about this. It could be your BAC will register below .01. So, now you clam up and wait.


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[mightymoose]

So how much beer was still in the bottle when it got dumped?

 

[army judge]

Im not trying to convince you guy(girls) of anything... All I am trying to do is get information by researching... I have been doing a ton of research on the internet then decided to join this forum to get information... I requested and was approved a court appointed attorney... SO I do have an attorney just haven't meet them yet... I went to court Nov 26th... I wasn't indicted yet but neither was most people that went to court that day... I have a new court Date Jan. 7th... I am just trying to get as much info as I can before I go to court because I do want to fight the case... I'm not going to put my life in the court appointed lawyers hands without trying to find out as much info as I can... I think that would be a mistake for anyone to trust everything a lawyer says whether it is a court appointed or not...

Plus, I wasn't blabbing I was answering a question someone else asked me!!!! I just added some more info because I was curious if they can really do what they did to the question that was asked... ARMY JUDGE... I appreciate all you input but if you don't want to answer anymore of my questions that is your right and don't respond... But it should be my right to ask question... Isn't this what this forum is all about to help and educate people... Not just tell people to get a lawyer...

I'm closing this thread for YOUR protection.
We don't dispense legal advice here.
We have given you information.
Now, discuss this with your lawyer.


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