Alcohol & Drugs: MIP, MIC, Intoxication How can I get an open container ticket dismissed (San Diego, CA)?

[jgmcoin]

I was walking with friends on a sidewalk in San Diego, CA last night with a half full bottle of miller light. We were not breaking any laws or stumbling and we were just going to the car to go home (the driver was sober).

A police car pulled up out of nowhere and shined his light on us. He and his partner got out of the car and said "you in the hat, give me the beer I already saw it." I was shocked because I was hiding it at my side. I was polite and cooperated with the officer who gave me a ticket for an open container. Apparently its just an infraction punishable by a fine up to $250.

I am hoping I can get the ticket dismissed because I'm a student and I don't have money for this kind of thing. I have no prior offenses.

What is my best chance to get this dismissed? I was thinking that I could say that the officer had no probable cause to stop us because we were just walking along the sidewalk legally. In the dark at 11:30 PM it would be impossible to tell what kind of bottle I was carrying (root beer, soda, anything!) I don't think carrying a bottle justifies "reasonable suspicion" that a crime has or was taking place. Would this work?

 

[mightymoose]

You won't get it dismissed because you don't have the money. Nobody cares about that. They will likely accept a payment plan.

As you describe it I expect your chances for dismissal are near zero. The officer's contact with you was not unlawful. It is very possible the officer had no idea what you were holding and duped you into admitting you had alcohol.

Expect to pay the fine.

 

[jgmcoin]

Part (c) of 25620 BP states that you are allowed to possess an open container for the purpose of recycling or other similar activity. If I argue that I found it and was going to recycle it do you think I can get it dismissed?

 

[CdwJava]

I was walking with friends on a sidewalk in San Diego, CA last night with a half full bottle of miller light. We were not breaking any laws or stumbling and we were just going to the car to go home (the driver was sober).

Apparently you were violating an ordinance against possessing an open container! THAT is a violation of the law.

Where in San Diego were you? Unless the law has changed since I worked there, it is generally against the law to be strolling down the street with an open container of alcohol.

A police car pulled up out of nowhere and shined his light on us. He and his partner got out of the car and said "you in the hat, give me the beer I already saw it." I was shocked because I was hiding it at my side. I was polite and cooperated with the officer who gave me a ticket for an open container. Apparently its just an infraction punishable by a fine up to $250.

Nothing like suddenly moving your arm and hand to your side when the officer has already seen you. Such movement is a dead give away to the cops and pretty much guaranteed to attract attention. It is also a demonstration of consciousness of guilt.

I am hoping I can get the ticket dismissed because I'm a student and I don't have money for this kind of thing. I have no prior offenses.

That is not a reason to get the offense dismissed.

What is my best chance to get this dismissed?

Hope that the courthouse burns down and all records of the citation are destroyed.

I was thinking that I could say that the officer had no probable cause to stop us because we were just walking along the sidewalk legally. In the dark at 11:30 PM it would be impossible to tell what kind of bottle I was carrying (root beer, soda, anything!) I don't think carrying a bottle justifies "reasonable suspicion" that a crime has or was taking place. Would this work?

Good luck with that argument. The officer need only articulate minimal cause to detain you, and NOP cause to stop and talk to you. When you combine his observations with the time of light and your actions (concealing something behind your leg) he almost certainly had the reasonable suspicion necessary for a detention.

It really is NOT that tough to identify a bottle or can of beer in someone's hand even at night. Plus, I suspect there were other factors at play as well.

Face it, you gambled and you lost. You're not the first lame-headed college kid to get caught with a beer on the streets of San Diego, and you will not be the last. The court may be able to work out payments, or you might be able to leverage community service in exchange for part of the fine and fees being dropped. Maybe.

 

[CdwJava]

Part (c) of 25620 BP states that you are allowed to possess an open container for the purpose of recycling or other similar activity. If I argue that I found it and was going to recycle it do you think I can get it dismissed?

Sure, the judge could probably use a good laugh!

Seriously ... No. One does not recycle a half full bottle of beer.

 

[jgmcoin]

Seriously ... No. One does not recycle a half full bottle of beer.

I think its worth a try. Just because its unlikely doesn't make it false. I doubt they are willing to spend the time trying to prove I wasn't going to recycle it. It would be my word against the officer's. Do we want to live in a world where people are punished for being a good Samaritan and cleaning up junk along the sidewalk?

 

[CdwJava]

I think its worth a try. Just because its unlikely doesn't make it false.

But, it IS false! You'll be lying ... in other words, to avoid an infraction penalty you will be committing the crime of perjury which holds the potential for jail time! You think that's a viable option? Really!?

I doubt they are willing to spend the time trying to prove I wasn't going to recycle it.

They do not have to prove you were going to recycle it. You will be asserting this as a defense and it will be up to YOU to prove that you have a history and pattern of recycling single bottles of beer near midnight ... doubt that's going to happen. Do you have receipts from prior recycling forays?

It would be my word against the officer's. Do we want to live in a world where people are punished for being a good Samaritan and cleaning up junk along the sidewalk?

I say give it a go ... the judge and the courtroom can use the laugh. But, keep in mind that doing this may make it less likely that the court will entertain any plea of hardship and cut you a break on any fines or fees. Good will is your friend - trying to play the court for a fool will only earn you the enmity of the judge.

 

[jgmcoin]

Thanks for your insight.

Good luck with that argument. The officer need only articulate minimal cause to detain you, and NOP cause to stop and talk to you. When you combine his observations with the time of light and your actions (concealing something behind your leg) he almost certainly had the reasonable suspicion necessary for a detention.

What does NOP mean? Why does the time of day matter?

It really is NOT that tough to identify a bottle or can of beer in someone's hand even at night. Plus, I suspect there were other factors at play as well.

Think about a bottle of root beer. I'm going to bring a bottle of beer and a bottle of root beer to the court to demonstrate to the DA that they cannot be distinguished in low light. I'll probably take some pictures of them both at the location from his position in the street.

 

[CdwJava]

What does NOP mean? Why does the time of day matter?

Sorry ... meant to type: "NO" ... a consensual contact requires no suspicion whatsoever. he can pull over, get out and approach you without having any reason at all.

And the time of day or night is one element in establishing reasonable suspicion. The neighborhood, your actions, others around you, if you had just left a bar or a party, etc. can all play into the consideration. Believe me, the contact requires a minimal burden and officers that work down there see people like you doin gwhat you did every day. I did. And they are not as coy and sly as they often think they are.

Think about a bottle of root beer. I'm going to bring a bottle of beer and a bottle of root beer to the court to demonstrate to the DA that they cannot be distinguished in low light. I'll probably take some pictures of them both at the location from his position in the street.

Knock yourself out ... but, the REASONABLE SUSPICION for a detention doesn't require he be correct! Heck, you could have had it in a paper bag and the officer coudl still be justified in the detention! And, if he did not say "stop" or call you to him, but merely pulled over and got out and upon contact observed it was beer, then there's no need for prior suspicion anyway.

As I said, if you try to play Perry Mason with this you will likely earn the enmity of the court and find that you will get hit with the max. fine and penalties possible.

 

[jgmcoin]

I think I'll first ask that they reduce the fine, and if they don't, then there is no reason not to drag it out and try to get out of it. I will let you know what happens.

 

[CdwJava]

I think I'll first ask that they reduce the fine, and if they don't, then there is no reason not to drag it out and try to get out of it. I will let you know what happens.

I doubt they will discuss a reduction until after you plead guilty. It doesn't tend to work that way ... it's not "Let's Make a Deal."

Again, the judge has some leeway. if you annoy the court with thinly veiled attempts to deceive them (such as alleging you were recycling a half-full bottle of beer) then expect to get hit with the top rate of fines and any fees they can assess. If you own up to your mistake, you can expect the court to be more merciful. I have seen SD County Traffic Court judges and Commissioners get downright vicious with people who try to play games with them.

But, it's your call.

 

[mightymoose]

I think its worth a try. Just because its unlikely doesn't make it false. I doubt they are willing to spend the time trying to prove I wasn't going to recycle it. It would be my word against the officer's. Do we want to live in a world where people are punished for being a good Samaritan and cleaning up junk along the sidewalk?

18 bazillion people have tried that argument already and got nowhere. I suggest you do not go in and act act as if the judge is a moron.

 

[Betty3]

Agree, good luck with that defense.

 

[disagreeable]

I suggest you develop a list of local recycling facilities open that late at night that pay enough to make a quantity of one financially feasible. ROFL