Alcohol & Drugs: MIP, MIC, Intoxication Open container violation

Status
Not open for further replies.

hamien

New Member
:confused:
A friend and I were recently returning from a football game in a neighboring town when we were pulled over for speeding. We had been tailgating before the game and there were two empty beer cans in the car. Knowing that we were not intoxicated we just threw the cans into the truck's center console and pulled over. We are both 21.
The officer instructed my friend, the driver, to step out of the car and then proceeded to give him field sobriety tests and two breathalizers, all of which he passed not even close to the legal limit.
The officer was about to just write a speeding citation and let us go when a second officer pulled up. The second officer decided he wanted to search the vehicle. He asked the driver if it was alright (this is a BS tactic because if you say no they'll arrest you and search it anyway) and the driver said yes. Of course the second cop found the two empty beer cans and showed them to the first cop who proceeded to write both of us citations for transporting an open container. This all occured in the state of Kansas, if that is a relevant variable.
I have a few questions about this incident:
1. Can you be cited for open container even if there is no alcohol in the container?

2. Did the second officer have the right to search the vehicle?

3. Being a misdemeanor charge, if I choose to fight this is it serious enough to warrant the need for a lawyer?

4. Since I was the passenger and not the driver, and since this occured in a vehicle that was not mine, will pleading guilty or no-contest and just paying the fine get me points on my license and raise MY auto-insurance rates?

5. I understand that if the officer doesn't appear at the court date I can motion to dismiss. Since it was the second officer who found the "evidence" leading to to O.C. charge, but the first officer who actually wrote the citation, does the second have to be present in court as well?

6. If my friend can find a way to beat the speeding ticket, can we get the open container charges thrown out for lack of probable cause? They never would have happened if we hadn't been pulled over for speeding.

7. Can you just give me a ballpark figure on what you think the average lawyer would charge to defend something like this?

8. Since I have never so much as even jay-walked in my life, could I plead diversion to this to keep it off of my record?


Any help or answers you can give me is gladly appreciated. Thanks for your time.:)
 
The state law is definitely relevant in any legal question -- state laws vary!

1) Your argument about "but for an illegal search the alleged crime would not have been uncovered" is really a futile argument and I don't think that you'll win there. It might very well have been a reasonable stop even though no summons was issued for speeding, e.g. you could be going 1 mile above the speed limit and that would be fine. Also see http://www.kscourts.org/kscases/ctapp/1997/19970620/74124.htm for a case directly on point.

2) It seems that you might have been accused of violating the following statute:

G.S. 20-138.7-Transporting An Open Container of Alcoholic Beverage After Consuming Alcohol–Second or Subsequent Offense. No person shall drive a motor vehicle on a highway or public vehicular area: a) While there is an alcoholic beverage other than in the unopened manufacturer's original container in the passenger area; b) and while the driver is consuming alcohol or while alcohol remains in the driver's body.

If this is the case, I offer the following analysis, assuming certain facts may be true, which I cannot confirm:
  • The cans were empty for quite a while and whatever drops were there had dried up
  • You had no alcohol in your body since you long since stopped drinking

Let us say that either are true -- you would not be guilty under the statute. There needs to be two things: (1) the alcoholic beverage, even if it is just a few drops, and (2) you were either drinking or you had some presence, even small, of alcohol in your body. It is necessary to have both and not just one aspect. Even if the argument is that this is a poorly worded statute (which should have used the word "or" instead of the word "and" if it were clearly a violation for either 1 or 2), both sections 1 and 2 require there to be the presence of alcohol in the car.

Did you get a copy of the breathalyzer results? If you had a 0% result then you have some pretty hard evidence to show that you could not be convicted of this offense. I'd certainly get a copy before trial and that would be a good indicator of how good or bad your case is and whether it will come down to credability of police officers.

3) With regard to the other items -- you gave them consent regardless of your argument that they will arrest you. They cannot do so without probable cause and it doesn't help you as a reason for giving consent. I also can't answer the question regarding the raise of your insurance rates since that can only be answered by your insurance company. With regard to pleading, you can speak to the prosecutor beforehand and possibly not have a problem -- but why would you plead guilty if you are not guilty?

4) I'm a proponent of representation in criminal matters moreso than civil since the repercussions are greater than just monetary. However, each person needs to decide for themself whether something more than consultation is desired and it can only be priced with a discussion with an attorney about all the relevant factors in the case. It could run you several hundred dollars for an initial review of your case plus a court appearance. It might well be more. Feel free to e-mail TheLaw.com at consultations@thelaw.com for more information.
 
open container

G.S. 20-138.7-Transporting An Open Container of Alcoholic Beverage After Consuming Alcohol–Second or Subsequent Offense. No person shall drive a motor vehicle on a highway or public vehicular area: a) While there is an alcoholic beverage other than in the unopened manufacturer's original container in the passenger area; b) and while the driver is consuming alcohol or while alcohol remains in the driver's body.

If I read this correctly, you have to be the driver of the motor-vehicle in order to be cited for transporting an open container. Since I was the passenger would this mean that the officer had no legal grounds to cite me in the first place.
In other words "riding in car" does not = "transporting."

The section cited on the ticket is 8-1599.
 
Yes, absolutely correct and a good point if this were the law that you were cited... and which I guessed was probably close but no cigar! Would think that this would be too easy for the officer to just have written the wrong law... but you never know! :p

Let's take a look at the law in your case:

8-1599. Transportation of liquor in opened containers unlawful; exceptions; penalty; report of prior convictions; city or county not prohibited from enacting comparable ordinance or resolution, requirements. (a) As used in this section, "alcoholic beverage" means any alcoholic liquor, as defined by K.S.A. 41-102 and amendments thereto, or any cereal malt beverage, as defined by K.S.A. 41-2701 and amendments thereto.

(b) No person shall transport in any vehicle upon a highway or street any alcoholic beverage unless such beverage is:
(1) In the original unopened package or container, the seal of which has not been broken and from which the original cap, cork or other means of closure has not been removed;
(2) in the locked rear trunk or rear compartment, or any locked outside compartment which is not accessible to any person in the vehicle while it is in motion; or
(3) in the exclusive possession of a passenger in a vehicle which is a recreational vehicle, as defined by K.S.A. 75-1212 and amendments thereto, or a bus, as defined by K.S.A. 8-1406 and amendments thereto, who is not in the driving compartment of such vehicle or who is in a portion of such vehicle from which the driver is not directly accessible.

(c) Violation of this section is a misdemeanor punishable by a fine of not more than $200 or by imprisonment for not more than six months, or both.
(d) Except as provided in subsection (f) upon conviction or adjudication of a second or subsequent violation of this section, the judge, in addition to any other penalty or disposition ordered pursuant to law, shall suspend the person's driver's license or privilege to operate a motor vehicle on the streets and highways of this state for one year.
(e) Upon suspension of a license pursuant to this section, the court shall require the person to surrender the license to the court, which shall transmit the license to the division of motor vehicles of the department of revenue, to be retained until the period of suspension expires. At that time, the licensee may apply to the division for return of the license. If the license has expired, the person may apply for a new license, which shall be issued promptly upon payment of the proper fee and satisfaction of other conditions established by law for obtaining a license unless another suspension or revocation of the person's privilege to operate a motor vehicle is in effect.
(f) As used in this section, "highway" and "street" have the meanings provided by K.S.A. 8-1424 and 8-1473, and amendments thereto.
(g) In lieu of suspending the driver's license or privilege to operate a motor vehicle on the highways of this state of any person convicted of violating this section, as provided in subsection (d), the judge of the court in which such person was convicted may enter an order which places conditions on such person's privilege of operating a motor vehicle on the highways of this state, a certified copy of which such person shall be required to carry any time such person is operating a motor vehicle on the highways of this state. Any such order shall prescribe the duration of the conditions imposed, which in no event shall be for a period of more than one year for a second violation.
Upon entering an order restricting a person's license hereunder, the judge shall require such person to surrender such person's driver's license to the judge who shall cause it to be transmitted to the division of vehicles, together with a copy of the order. Upon receipt thereof, the division of vehicles shall issue without charge a driver's license which shall indicate on its face that conditions have been imposed on such person's privilege of operating a motor vehicle and that a certified copy of the order imposing such conditions is required to be carried by the person for whom the license was issued any time such person is operating a motor vehicle on the highways of this state. If the person convicted is a nonresident, the judge shall cause a copy of the order to be transmitted to the division and the division shall forward a copy of it to the motor vehicle administrator, of such person's state of residence. Such judge shall furnish to any person whose driver's license has had conditions imposed on it under this section a copy of the order, which shall be recognized as a valid Kansas driver's license until such time as the division shall issue the restricted license provided for in this section.
Upon expiration of the period of time for which conditions are imposed pursuant to this subsection, the licensee may apply to the division for the return of the license previously surrendered by such licensee. In the event such license has expired, such person may apply to the division for a new license, which shall be issued immediately by the division upon payment of the proper fee and satisfaction of the other conditions established by law, unless such person's privilege to operate a motor vehicle on the highways of this state has been suspended or revoked prior thereto. If any person shall violate any of the conditions imposed under this subsection, such person's driver's license or privilege to operate a motor vehicle on the highways of this state shall be revoked for a period of not less than 60 days nor more than one year by the judge of the court in which such person is convicted of violating such conditions.
(h) It shall be an affirmative defense to any prosecution under this section that an occupant of the vehicle other than the defendant was in exclusive possession of the alcoholic liquor.
(i) The court shall report to the division every conviction of a violation of this section or of a city ordinance or county resolution that prohibits the acts prohibited by this section. Prior to sentencing under the provisions of this section, the court shall request and shall receive from the division a record of all prior convictions obtained against such person for any violations of any of the motor vehicle laws of this state.
(j) For the purpose of determining whether a conviction is a first, second or subsequent conviction in sentencing under this section:
(1) "Conviction" includes being convicted of a violation of an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits;
(2) only convictions occurring in the immediately preceding five years, including prior to the effective date of this act, shall be taken into account, but the court may consider other prior convictions in determining the sentence to be imposed within the limits provided for a first, second or subsequent offender, whichever is applicable; and
(3) it is irrelevant whether an offense occurred before or after conviction for a previous offense.
(k) This section shall not be construed as preventing any city from enacting ordinances, or any county from adopting resolutions, declaring acts prohibited by this section as unlawful or prohibited in such city or county and prescribing penalties for violation thereof, but such ordinance or resolution shall provide for suspension or restriction of driving privileges as provided by this section and the convicting court shall be required to report convictions for violations of such ordinance or resolution as provided by subsection (i).
(l) This section shall be part of and supplemental to the uniform act regulating traffic on highways.
 
This statute is much more general and not so easy to squirm out from its broad reach. But let's take a look -- remember, this is NOT a consultation and we are reviewing the limited facts of what you describe here. An attorney specializing in DWI in your city might provide a more detailed analysis and additional defenses -- but let's have a look!

1) What do you mean by "center console"? Is this an open area or is there a storage area such as a garbage bin or the like and NOT in plain view? This might be important for credibility for your defense in point 2 (but not an invalid search since you consented). Add in the results of a perfect breathalyzer test and the prosecution's evidence is highly questionable.

2) While this seems to be splitting hairs and is a matter of credibility, combined with #1 it seems to be a valid, credible defense. If these cans were, in fact, dry empty since they were the result of the tailgating party hours earlier, then you would not be transporting liquor. This defense isn't perfect but it is the prosecution's burden to prove all the elements of their case. If the cans weren't in plain view and you had no evidence of drinking then ergo the cans may likely have been empty. Did the officers examine the cans?

3) Subsection (h) states that if you can prove more likely than not that the beverages were not yours and were another passenger's then it is a valid defense. I'm not sure how you'd accomplish that here but an admission by the driver that the cans were his and he was returning them to the market might be sufficient.

Regardless, the proper way to deal with cans is to always put them in the trunk of the car and away from any area within reach or easy access by the passengers. This should be a given and a no brainer -- having empty beer cans in a car is asking for trouble and raises immediate suspicion.
 
Status
Not open for further replies.
Back
Top