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It wasn't a stand alone charge. I wouldn't have considered it had he not been DWI. I personally think DWI should be a more serious crime then it is. Especially given the frequency and lethality. As for the comment several pages back, I have no sympathy for someone who could be so careless with someone else's life and any charge I get, that you violate, is not me doing anything BUT reporting what YOU did! There are lots of things you can do to either meet or not elements of an offense. Texas has some pretty weird exceptions or non-applicability. Example, child passenger safety seats... If all seats are occupied, put baby on floorboards and you're good to go.

MasterOfNone wrote:

puma guy wrote:

AFCop wrote: Many laws are written in such a way that case law is often required to clear up confusion, much like the traveling exemption with regards to PC 46.

What traveling exemption are you referring to. Is it the old "bonfide traveler" language"?
In the vein of lightening up this thread I guess I will buy individual beers in odd numbers and keep them unopened in a paper bag.
I am interested in what you referred to in PC 46.

I believe he means 46.15(b)(2), which says "Section 46.02 does not apply to a person who: is traveling" with no definition of "traveling."

Yes, exactly.... Thank you!

That is a very good question as I am not sure there is really a law that makes consumption a crime.... as the law makes no mention of consumption, only possession of open container.... nor does it limit where it is a crime like DWI (i.e. in a public place).... And now you know why I am a cop and not lawyer.... This thread has been perverted way off course from the OP, part to my own doing.

Here is my last bit on this, I am sorry you don't agree with my interpretation of the law. I mustn't be to far off my rocker to have had the concurrence of at least one judge/prosecutor.

Many laws are written in such a way that case law is often required to clear up confusion, much like the traveling exemption with regards to PC 46.

I don't feel like I am doing anything wrong, however this wouldn't be first time I thought I was doing something right but was required to stop so if there is an opinion/case law that defines what an "other receptacle" is, I will honor that and I will come back here and commit to that to the several of you!

I guess in part I have never seen someone taken for "the ride" as no civilian I've ever had in custody has never not been home in their own bed after a few hours of their time. We don't operate quite the same as civilian LE with regards to civies, unless they are have a warrant out of Texas or another state.... After the investigation they are not magistrated or incarcerated pending a bail/bond hearing, etc.

I always try to error on the side of the subject.... i.e. the drunk, if I have questionable information, I will mitigate rather than incarcerate, etc. I like that, just thought that one up.....

I can see everyone's logic WRT my interpretation with the exception of consumption..... Could you offer some idea's on how one would proceed with a case of a DWI, open 12 pack with 4 or 7 or 10 missing, there are bottle caps on the floor but no actual open containers? Yes I know I changed the scenario a little, would your opinion be different then? No actual bottle but open case and bottle caps? I believe the law is intended to curtail drunk driving so why shouldn't a LOE be able to charge based on PC..... after all my standard of proof is much less than what is needed for a conviction. And that has nothing to do with making up law, etc.

I hope I am not coming across as one of those LEO's you mention?

And for the record, civilians (on base) go to Fed Court, most service members with a basic DWI will never see a "conviction" as most are dispatched with an Article 15.... If they were, it would be via Court Martial, on base.

Wow! I never thought one comment on my interpretation would have such a breath of life into this discussion..... I guess if you take it to the hilt that yes the rail car, etc.... would be in place... although I am not sure how that would fit into the passenger compartment of a motor vehicle..... lol!


Seriously though, when you start taking into perspective the truck, train, etc... I see how easily things can run away from someone when you apply my interpretation..... I cede that point...

Wow, the reason an AG opinion was requested was based on one guys views he expressed on an internet forum...... How's bout them apples..... lol!

P.S. Which he defended, either because he is hard headed or he legitimently believes he is right..... Perhaps a combo of both!

Did I at least put up a good argument? What about the "testimony"..... This is something I have put a little thought and care into..... Can I at least get that much?

sjfcontrol wrote:Ok -- I can see that there will be no agreement here. I cannot interpret the law the way you've described, and have it hold together logically. Even your use of the word "or", and interpreting it as an "and" make no sense, at least to me. Regarding your successful cases, I just have to wonder who the defending lawyer was -- public defender, perhaps? I can even make a case for going into a liquor store and buying 3-4 bottles, which the proprietor places in an open liquor box, partially filling it. Since that "container" (the box) is open, and (or) the box is partially empty, I'd be guilty. Your interpretation of this law is FAR to ... fragile? There are just way to many ways a partial case of beer can exist in a car without anybody drinking it IN the car to be able to support the law as you've described it. It would be shot down in a minute by any defense attorney worth his salt.

By the way, I understand you're currently deployed -- A heartfelt "thank you" for your service!

I haven't interpreted or as an "and" I think it is written the way it is to cover the very scenario I have used it in... a bottle/can that is opened, has been opened, seal is broken or other receptacle of which the contents are partially removed. There are two applications of other receptacle.... those that can be opened, sealed, etc (flask, bottle, sponge,etc) and those that can't be opened (6 pack) but can have things removed. Ultimately it is not what I think that matters... It is the judge or jury that matters. If there were clarification (i.e. AG opinion, case law, etc.) that contradicted my interpretation and being the respectable LE professional that I am, I would honor such clarification and modify my practices. After all, I am not one of those, I think its wrong and I dont agree with/know the law so I am going to act on my opinion guys!

You're welcome, its what I do.....

On a different note I was in the airport, obviously in uniform, in Las Vegas heading over and a little girl walked up to me with her dad in tow, shook my hand and thanked me for "keeping our country safe" I got on my knees and told her it was people like her and her daddy that made it worth doing.... Then I got a hug...... and then I teared up.....

snatchel wrote:No doubt, I want to curtail DWI related offenses too! But by utilizing a "loophole" to give an OC to someone who may not have actually been guilty of open container would be a major flaw on your part. They could never prove it of course, they are after all intoxicated and probably lying through their teeth to save their butt...but you can't actually PROVE that they were guilty of it. Their intoxication combined with a 12 pack minus 2 beers implies that they may have had an OC....but you can't prove it.

If you tack the OC onto a DUI for the scenario I stated, and you went to court to testify, this is what it would sound like:

Attorney:"You cited Mr. Jones for an OC because of a 12 pack on the floor of his car that was missing 2 beers, correct?"
You:"Yes"
Attorney:"Can yo prove that he was actually consuming alcohol from an open container while he was operating the vehicle?"
You:".... err... no. I assume that he was. He was intoxicated and driving. He had 2 cans of beer missing from a 12 pack. It
makes sense that he consumed them and had an open container in his vehicle prior to me making contact."
Attorney:"So you cited Mr. Jones for an OC based off a logical assumtion, but have no proof that he was consuming alcohol
from an open container prior to you making contact."


Again.. yes, it makes sense... but you have no proof.. Boxes of beer don't contain alcohol. They are perforous containers that simply hold cans or bottles of beer. I would call that a flaw in your interpretation.. no offense, bud.

I think your logic is failed because you mention the requirement of consumption via the court testimony that I have to prove he was consuming it and I don't. If there is an open container, I can prove it! Even based on your scenario, I don't have to prove they consumed anything for a OC violation to have occurred.

My response would be more along the lines of something like this....
Me: "There is no requirement in the law for me to prove he was consuming an alcoholic beverage from an open container while he was operating the vehicle. The law prohibits an open container of an alcoholiv beverage from being in the passenger compartment of a vehicle. Mr. jones was arrested for DWI and during a subsequent search incident to arrest (legal warrant exception as we would be looking for evidence for the arrested offense) we discovered a ripped open case of bud light, the container, that was missing 4 cans of beer, of which the contents were partially removed and it was located behind the passenger seat in immediate reach of Mr. jones".


sjfcontrol, again I dont have to prove it was being drank and in response to your scenario, if they were 4 different bottles of something other than what was on the box and your explanation was such as you described.... I wouldn't cite you for OC as I believe that is not the intent....

sjfcontrol wrote:

AFCop wrote:

Hoosier Daddy wrote:I just want to point out that according to AFCop's interpretation, a 12 pack that is opened (maybe the glue dried and a flap came loose) is an "open container" even if it still contains all 12 cans and those cans are still sealed.

No, that is not my interpretation...... I never said that or implied that, at least I don't think I did....

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

A 12 pack that is open and NOT missing any bottles/cans does not meet the......., or the contents of which are partially removed section of the law. In my opinion.

It's an OR therefore it is not a requirement that both sides be met. If it said AND then it would require that it be open AND partially removed. Just open is enough -- according to the way the law reads.

means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, has been opened, that has a broken seal (Im my opinion apply to the bottle, can or other receptacles mentioned before like flask, etc.), or the contents of which have been partially removed (this would apply to cases, etc.). That is how I get my differing breakdowns with respect to your analogy. I do try to apply reason and logic, and feel as though in my position I have.

You disagree and that is ok. If your interpretation is that the bag is open and you feel like charging someone, go for it. If you can get a conviction, even better. It is only one of two charges that the law mandates you cite them for and send them on their way (with a few exceptions of course)....

donniet wrote:So, based.... on 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. If it's empty wouldn't it be an "empty container" not an "open container" Just saying.

Well I guess that depends on your interpretation. If its empty, how'd it get that way.... It was opened, right?

snatchel wrote:I follow your logic in what you are saying, in regard to the way the law is written.... But....

I guess where I am getting hung up is the fact that your interpretation while logical, is not reasonable. It makes perfect sense, but there are too many reasonable variables that could explain where those other two cans are.

I would like to think that open container laws are to battle open containers, littering laws are to battle beer cans being tossed, and DUI laws to battle drivers under the influence.

I'm not saying your interpretation is wrong, far be it from me to say that as someone who is not an LEO in any form (yet). I just don't agree with it, and though you may be able to easily cite someone for the reaons above, I would think that any bottom feeder lawyer could get that particular charge dismissed.

You were saying earlier that you try to interpret the laws literally. I agree that most of the time that is a good thing, but I would like to think that you also use reason and common sense to dictate your interpretations. Just because you COULD interpret a law in a way to nail someone doesn't mean you SHOULD. =

Make no mistake, I'm not trying to start a urinating contest, just tring to explain my stance on a possible flaw in your interpretation.... Which by the way, you agreed to earlier if only by implication, by agreeing that it was possible to have an open box of beer/etc and still not be in violation of "open container."

Yes, and that is why the only time I have charged this with respect to open case, etc was with a DWI investigation. I have cited people for OC without a DWI charge but that always has included an open bottle/can with some liquid inside. I wouldn't say it was a flaw in my interpretation but moreso a loop hole in the law or a reasonable application of what the laws intent is..... To curtail DWI related offenses, right?

sjfcontrol wrote:

AFCop wrote:(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.

Based on the definition and the highlighted parts your open beer that you didnt drink any of is still considered an open container.... after all you are not being charged with drinking and driving.......

You are absolutely right..... if you go buy 30 single cans of beer and place them in your car, then there is no open container.... If there had been, there would be no way to prove it.... After all, its not what you know, its what you can prove! However, I didnt say I would infer anything. I said the law reads that which is posted above. If you leave the container in your vehicle and it is open and contents are partially removed then the proof is all right there.....

If If bottle means bottle and can means can then tell me what is other receptacle limited to? Why would any amount of alcoholic beverage matter in a bottle or can that open or that has been opened? What would you consider a broken seal...... something on a can, that is....open?

A box of beer comes with no way to gain access to the beer unless you break a seal, right (excluding 6 packs, etc.) and inside that box there is alcoholic beverage (albeit in a smaller container), right? and if you remove some of those cans does that mean that the contents of that box have been partially removed?

Edit to fix spelling

Other receptacle? Glass, flask, cup, dish, sponge anything that will contain a fluid that isn't a bottle or can.

Why would any amount...? -- Because they didn't want the law to pertain to people transporting EMPTY cans or bottles. Otherwise recyclers could get in trouble.

If you claim the cardboard carton is considered a "container" then I contend that the paper bag is also one. and it is open -- by the highlighted part above you'd be just as guilty under my scenario as yours. Note the "or" in the definition before the part about the "partially removed"? It doesn't say the container is open AND the contents partially removed. So the contents don't HAVE to be partially removed for the highlighted portion to be valid.

Yes, it's absurd -- I'm highlighting absurdity by being absurd.

Why is your interpretation of what other receptacle means right and mine wrong? Where do you draw your conclusion that those are the only things covered by "other receptacle"? This law wouldn't apply to recyclers because most recycler's I know bag up there cans and very seldom do I see them in the passenger compartment.

Like I've said, I don't disagree with the intent of the law, which I believe is to prevent people from drinking and driving but with that belief I feel it was written to include those cases which I have explained, and been a party to.... I dont, nor do I agree with someone going around and picking on anything and everything they can find.

All I did was post my opinion and my interpretation of the law... I don't go around with this huge chip on my shoulder looking to hammer recyclers, responsible drinkers on there way home who happened to buy a faulty box, etc. Nor do I believe I am way off base in my interpretation that it wouldn't cover a sealed/closed bottle placed in a grocery bag. I cut no corners and take no chances when it comes to DWI enforcement, to include OC laws, which are meant to prevent DWI from occurring! If that wasn't the case, there would be no OC enhancement with a DWI charge.

I am not some unreasonable person who will not take your word if you do not appear intoxicated, are not being investigated for a DWI offense, that the cans are from a bag that busted in your car while on your way to the recycling center, or that you were cleaning out your man cave (garage) and forgot to throw them away. However, I stand firm that if I was investigating a DWI offense and I arrested someone who had at the time of offense an open receptacle that contained any amount of an alcoholic beverage (i.e. a case) that was open, had been opened OR the contents of which are partially removed (for those 6 packs that dont have to be opened). Then I will charge you with the OC for the enhancement because it is a serious problem that results in severe consequences and costs people their lives and kids their mother.... (personal experience)

I do things because I actually care, not because I have something to prove! I also completely disagree with whole beat the wrap but not the ride mentallity!

Hoosier Daddy wrote:I just want to point out that according to AFCop's interpretation, a 12 pack that is opened (maybe the glue dried and a flap came loose) is an "open container" even if it still contains all 12 cans and those cans are still sealed.

No, that is not my interpretation...... I never said that or implied that, at least I don't think I did....

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

A 12 pack that is open and NOT missing any bottles/cans does not meet the......., or the contents of which are partially removed section of the law. In my opinion.

snatchel wrote:AFCop, I have only one question for ya:

Even if you are using the "recepticle" portion to replace an actual empty bottle/can/cup/flask, or whatever... how do you prove that they had an open container of alcohol that was being consumed? I thought the intent of the open container law was to enforce policy of non drinking while driving. As others have stated.... an open recepticle could mean any number of things.

Lets say I'm driving on base, intoxicated. I am wrong, no doubt, and would expect to get hammered for it. I also have a 12 pack of Coors Light sitting in the passenger seat floor with 2 beer cans missing. You are telling me that because I am intoxicated, and there are only 10 beers in the 12 pack, you will charge me with open container? Even if you did, I'm curious as to how that would hold up in court, unless you had the 2 empty beer cans you could not actually prove I had open containers in the car. Right? You have an intoxicated driver, a 12 pack of beer minus 2 beers...but still no burden of proof showing that I at one point had an open container.

Maybe I read your statements wrong, but I'm pretty sure I got your whiff fairly straight. If that is what you are saying...

First and foremost, the provisions of the Open Container law make no mention, nor is it an element of a offense to consume. It is merely a violation to have possession of the open container in the passenger compartment of the vehicle. If you have a container which contains an alcoholic beverage (the 12 pack) and its open (2 are mission) then the contents of which are partially removed -- there is the proof of the open container violation.. I don't have to prove you consumed anything at any point in the vehicle.

Like I said in the beginning, well close to the beginning, I have obtained a DWI enhancement charge based on an open container violation that involved a case with cans missing in federal court (Western District of Texas)... It was some time ago and being deployed I dont have regular access to my reports so I can't recall the name at this time.

I personally believe that the law is written the way it is to specifically include the things I believe to cover those scenarios of "ditching the empties" Why would they refer to cans being opened then move to other recepticles with seals broken.... why not limit the missing object to liquid, why write or the contents of which are partially removed?

(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.

Based on the definition and the highlighted parts your open beer that you didnt drink any of is still considered an open container.... after all you are not being charged with drinking and driving.......

You are absolutely right..... if you go buy 30 single cans of beer and place them in your car, then there is no open container.... If there had been, there would be no way to prove it.... After all, its not what you know, its what you can prove! However, I didnt say I would infer anything. I said the law reads that which is posted above. If you leave the container in your vehicle and it is open and contents are partially removed then the proof is all right there.....

If If bottle means bottle and can means can then tell me what is other receptacle limited to? Why would any amount of alcoholic beverage matter in a bottle or can that open or that has been opened? What would you consider a broken seal...... something on a can, that is....open?

A box of beer comes with no way to gain access to the beer unless you break a seal, right (excluding 6 packs, etc.) and inside that box there is alcoholic beverage (albeit in a smaller container), right? and if you remove some of those cans does that mean that the contents of that box have been partially removed?

Edit to fix spelling

That on is easy, even without adressing the obsurdness of the scenario......... the contents aren't partially removed!

sjfcontrol wrote:Also, I believe that the question of charging the driver who chucks the empties out the window -- Is that you can't (or shouldn't be able to) charge somebody for an open container violation unless there is actualy an open container present. If you don't see him chuck it, you can't charge him with it.

My point exactly and a way, which is what I believe was intended based on how I read and interpret the law, is you can't charge them for chucking the empties out the window is to hit them with whats left and you can see..... hence the open 30 pack with missing cans...... the idea is that cans must be missing (hence contents partially removed) so broken boxes, as long as all beers are accounted for and bottles in a bag.... same concept.

I have a SUV as well as long as it is behind the furthest rear seat it is not considered in the passenger compartment. If you have a six pack and it falls over and 2 bottles fall out, they are there and if a question were to arise, simply put those two back in the container and then the contents are no longer partially removed.

Missing would work, but I was specifically demonstrating all cans present, void of any alcohol but advocating my point on the word OR and the absence or present of alcohol.