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Sounds like a plan! I look forward to it! A non-vehicular to you!

AFCop wrote: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.

From my point of view the problem is that (again) you're making assumptions. Ignoring the bottle caps for the moment and going back to the open carton with missing cans, you really have no idea what happened to those cans. (Unless, of course, you saw the subject chuck them out the window.) For all you know, those missing cans could be resting comfortably in somebodies refrigerator. Making the subsequent assumption that the errant cans were previously in the vehicle, and that the subject opened them, and then tossed them is simply unsupportable. Its equally plausible that the carton was placed in the vehicle in the same state you found it, and the missing cans were left behind, given to somebody, or previously consumed long ago. You simply don't know. And there is no evidence to suggest one way or the other. And that makes charging the subject very problematic.

I am all for officer discretion when it comes to charging a subject. But the purpose of that discretion is to allow for situations where the subject may have violated a law, but the situation wasn't egregious enough to warrant punishment. Five mph over the limit -- not signaling a lane change on an empty highway -- etc. A fitting example for this particular subject might be where a person is moving his household goods to a new residence, and places a box with the contents of his liquor cabinet into the back seat. He IS in violation of the law, but it is very evident that there is no consumption or even risk of consumption. He is simply transporting. (I KNOW consumption isn't part of the charge -- but it IS what you're trying to prevent, right?)

There should, however, be no discretion on the officer's part regarding whether or not the law was broken. That should be clear. And I believe the law in this case IS clearly worded. I believe you've perverted the common usage of the term "alcoholic beverage container" to something that was not intended, and that a "normal person" (as used in the law) would not interpret the wording as you have.

Now, bottle caps on the floor? Well, that may be additional evidence that some consumption occurred in the vehicle at some point. But there still is no actual "open container" to charge the operator with.

Let me ask, is there ANY situation where an open container and even consumption in a vehicle is NOT illegal? If the vehicle is on private property, for example? Can I sit in my own driveway -- or even in my garage -- in my car, and drink a beer? If any such situation exists (where it is NOT illegal), then that could be the source of the bottle caps.

I, and many of the others here have a problem with the logic -- "A" implies "B", I found "A", therefore I'm charging you with "B". That's not the way the law should work.

AFCop wrote: 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!

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!

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.

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.

AFCop wrote: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.

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.

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.