incident with Johnson County Sheriff

[alexrex20]

This post was made by bronco78 who is currently on your ignore list. Display this post.

There we go. Much better.

[E.Marquez]

On topic? You responded to my on-topic post with your comments about window tint, license plate frames, etc. Yes I am aware that plate frames are only illegal if they obscure the text. I'm also aware that most window tinting is legal. I apologize if I was not specific in my post to differentiate between legal tint and illegal tint.

If window tinting and license plates have "nothing to do with this thread," then why did YOU introduce it? Oh wait, I can think of a few reasons. :rolleyes:

So, bronco78, how dark is your window tint and where can I get my tail lights smoked? I want to murder out my ride as well, even though I know it's unsafe and illegal. :rolleyes: :rolleyes:

Again, you either cannot read or cannot comprehend what has been written.. NO PLACE did I write I HAVE done anything you keep referring to.., none, zip. Those were all clearly examples of what a LEO COULD use to pull over a driver..

A LEO, can find SOMETHING, ANYTHING if they are interested, not just the few items I mentioned that could be used as PC / RS... to which you have somehow aligned to me personally as things I’m doing and trying to get away with..

[E.Marquez]

I noticed you did not address your wrong and misleading statements that were pointed out.. .. .. Will you now?

This post was made by bronco78 who is currently on your ignore list. Display this post.

There we go. Much better.

Guess i got my answer to that.

To the OP I apologize for the thread distraction.

Back to the topic.

AFCOP, My AF SJA POC has departed Bagram.. so Im out of luck there. But our SJA has contacted Bell County DA (who 1st CAV deals with most) and asked for an opinion.

I'll post what i find.

[CheckonChico]

No apology needed, just wish I had popcorn handy

[sjfcontrol]

I have a very hard time accepting the cardboard box as an alcoholic container. If you accept that definition, then how about this...

I buy a single bottle (unopened, of course) of bourbon. The bottle is placed in a paper bag, and I place that bag on my back seat. Why couldn't an officer claim the paper bag as the "open container"? There is nothing that I see that any alcohol must be removed -- after all I'm sure that an open, but full, beer can WOULD trigger the open container issue.

If the cardboard box is a "container", why not the paper bag? :head scratch

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.

[Originalist]

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

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.

[sjfcontrol]

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

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.

So, If I have an open beer on the console, but haven't taken a sip from it (contents not partially removed), I'm not guilty of having an open container?
I don't believe my situation is any more absurd than calling the cardboard box an open container.
And my argument was exactly the opposite from yours. You say you can 'infer' the open container by counting what's not there. I'm saying you CAN'T charge for an open container UNLESS there is one there.

[Hoosier Daddy]

§ 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.

It seems pretty obvious a box is not an open container in this sense, unless it's a box like this.

[Originalist]

(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

[snatchel]

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...

[sjfcontrol]

(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.

[Hoosier Daddy]

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.

[Originalist]

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?

[Originalist]

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]

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."