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AFCop wrote:

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!

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.

bronco78 wrote:

alexrex20 wrote:If you're not drinking and driving, and truly only transporting the alcohol, then put it in the trunk.

It's pretty simple.

Nothing like this is ever that simple, unless one wants to ignore reality , and find a simple solution that fits a short sighted opinion.

Life has many more twists and turns then to be fixed in a simple catch all clause or statement.

Many times I do not want to open my truck to place the days HEB purchase in. Or a follow on stop at some other store.. I have things in my trunk I would rather not show parking lot crawlers. That means two or more bags of stuff are going in my back seat,,, The way AFCOP has interpreted the law (Unlike I've ever seen it done so before) I can be charged when he finds my wine bottle "Container" only has 2 bottles, and not the four it might possible hold. Or the "container" provided to hold UP TO 6 bottles of beer, but I chose only 3, or 4, or 5 that day.. And Not that I drink beer from a can (ya Im a beer snob, get over it i have ) But with cardboard soda containers, I find they bust open on me about 2 / 10 times... if that was beer, a can would likely be lost in such an event, like I loose a soda can now an again in the parking lot. I would be charged by AFCOP for having an open "container".

An interesting issue, and one that will be brought up with the appropriate military authorities, as well as my representative for an AG ruling as I believe, AFCOP has interpreted a law, in a manner to which it was not anticipated, and even when done in good faith is a grievous mistake and one that should be corrected.

bci21984 wrote:The "other recepticle" is aimed at covering flasks and other containers used to hold alcohol. A 6,12,18, 24, 30, or 36 pack missing a few cans DOES NOT meet the requirements of "an open container". Where this could be construed is in the report an officer would mention something to the sort of, "located in the vehicle was a partially consumed beer can that was cold to the touch, along with an empty beer can in the floor board next to a 12 pack box of beer with two cans missing.". Although the box would be mentioned it is not an open container.

Under the same train of thought, the next person I come across with a partially loaded magazine, do I charge them with discharging a firearm. They obviously shot the gun didnt they?

AFCop wrote:My comment about the contents partially removed was a paraphrase to indicate it doesn't have to be an open bottle.....

(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.

Ok, I will pick this apart....

A bottle or can that is open, that contained alcohol and contents have been partially removed...... i.e. open and consumed bottle/can of alcoholic beverage

Other recepticle, broken seal, or the contents of which are partially removed.... applies to the six pack of beer that is held together by the plastic ring/placed in a carboard opentop box - IF one or more of the cans/bottles is missing from the plastic ring/box also meets the definition of other receptical that contains alcohol beverage and is open with the contents partially removed.

While I didnt state this earlier, it can be a bottle or can, with cold liquid partially missing but it doesn't have to be to meet the elements of the offense as I listed out. I hope this eliminates the confusion created..

AFCop wrote:Finally, the open container.... The way the law is written is so that if you had a 12 pack, which was open and missing 4 beers you meet the defintion of "contents partially removed"... no where is an element of the offense that there must be liquid, cold liquid, or anything that indicates a fresh drink that is actively being consumed in order to be charged with open container.

Again, these are based on my opinion, interpretations and IANAL, nor do I plan on being one... I just want to be an educated, well rounded LEO....

Keith B wrote:

§ 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.

Keith B wrote: § 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.

As for probable cause, the smell of alcohol, as I stated earlier, is usually enough to justify probable cause for a search, especially in a no open container state like Texas.

Sounds like you got a good lawyer and he was able to get the charge it dismissed. And, Open Container is no biggie as long as you weren't charged with DWI.