incident with Johnson County Sheriff

[CheckonChico]

It sure seems to make things a whole lot easier when you are able to honestly answer the officer's question about drinking with a resounding "no sir".

that's why this was posted in the Never Again thread lol!

Rex B thanks for all the knowledgeable input. I was just never sure but now I know the Leo didn't violate any of my rights

[Rex B]

The US 5th Amendment states "No person...shall be compelled in any criminal case to be a witness against himself...", by admitting to the alcohol use, you did just that.
If he was on shaky ground before your admission, it appears to me he got a firmer stance when you spoke.

I don't know if I agree with this. He had said the last consumption took place over 1.5 hours previous.
Unless he had been driving all the time (90 miles?) since then there is no link to a probable open container.

I think it was the smell that cinched it. After 1.5 hours I would expect to have halitosis, but not beer breath. I'd also have to have some gum or something.

[Keith B]

At one time, I had carried and an consumed non-Alcholic (0.0%) Malt drink in my Vehicle. The container, looks like a beer bottle. Would I get in trouble if sighted and pulled over by cop? Maybe I will be cited for wasting their time

I don't think those malt drinks contain alcohol, but the non-alcoholic beers actually do. O'Douls for instance is 0.4% compared to a light beer at approximately 4%, so you have a 10 to one ratio. In this case, if you drank 20 O'Douls in an hour you could potentially be intoxicated, but they would probably have to arrest you in the bathroom.

[steveincowtown]

That day for some reason my wife and I were in two different vehicles, i went in my work truck(single cab ranger) and she was in her jeep, my brother was in the passenger side when the LEO pulled me over.

..he found an empty beer can behind one of the seats. :

I'm no lawyer, but looking at the all if all the facts are as stated...you shouldn't have been charged with anything relating to the open container.

§ 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.

[Rex B]

good catch! Noted

[Keith B]

May be how your lawyer got the charges dropped.

[CheckonChico]

excellent catch! Indeed that might just be exactly how my lawyer got me out of it. A person can get themselves out of some tight situations if they knew all the details of the law. But I can't help but think how easy it would be to reach over and hide an open container behind the passenger seat in that truck.

[VoiceofReason]

Something else stood out to me.

(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.

If the can was dry, (bone dry), seems to me he would have had a problem proving you knew it was behind the seat.

[Keith B]

Something else stood out to me.

(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.

If the can was dry, (bone dry), seems to me he would have had a problem proving you knew it was behind the seat.

Could also get you in trouble if you like to collect aluminum cans for the ¢¢.

[CheckonChico]

Could also get you in trouble if you like to collect aluminum cans for the ¢¢.

good thing my gpa can't drive anymore!

[SRH78]

Something else stood out to me.

(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.

If the can was dry, (bone dry), seems to me he would have had a problem proving you knew it was behind the seat.

I was thinking the same thing.

[SavageMythology]

§ 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.

Along with so many others in this forum, I am not a lawyer, but it looks to me like a bone dry can doesn't even qualify as an open container in the first place. In the quoted statute above, "contains" is in present tense, and "partially" further implies that there is still some alcoholic substance left in the container. An empty can, regardless of what was originally contained within, should be perfectly legal.

[Bullwhip]

"With all due respect, officer, I want it on the record that I do NOT consent to a search of my vehicle."

+1

Beer breath gave him pc to test the driver. If he smelled booze but not on your breath it might mean open container.

[stash]

At one time, I had carried and an consumed non-Alcholic (0.0%) Malt drink in my Vehicle. The container, looks like a beer bottle. Would I get in trouble if sighted and pulled over by cop? Maybe I will be cited for wasting their time

I don't think those malt drinks contain alcohol, but the non-alcoholic beers actually do. O'Douls for instance is 0.4% compared to a light beer at approximately 4%, so you have a 10 to one ratio. In this case, if you drank 20 O'Douls in an hour you could potentially be intoxicated, but they would probably have to arrest you in the bathroom. [/quote

I don't know how true this is but I remember reading 10 or so years ago that a slice of bread contains more alcohol than a non-alcoholic beer. It could have been an advertisement for a non-alcoholic beer (don't remember) for all I know but I do remember reading it.

[Keith B]

I don't know how true this is but I remember reading 10 or so years ago that a slice of bread contains more alcohol than a non-alcoholic beer. It could have been an advertisement for a non-alcoholic beer (don't remember) for all I know but I do remember reading it.

Well, it varies where you look. An article in the Canadian Medical Association Journal http://www.ncbi.nlm.nih.gov/pmc/article ... 87/?page=1" onclick="window.open(this.href);return false; says there can be anywhere from .04% to 1.9% left in bread. However, I don't buy it in any modern bread that is properly baked.

To form alcohol you must ferment the yeast and sugar. When you make bread, you are VERY early in the fermentation process, and, while there is a small amount in the dough at that point, baking should remove the alcohol via evaporation.