incident with Johnson County Sheriff

[Originalist]

This is what I like to call my area of expertise.... First some background, I have been a National Highway Traffic Safety Administration certified Standardized Field Sobriety Test Practitioner for 4 years, have investigated approximately 100 DWI cases in that time frame with a 95% conviction rate... Yes, I do make mistakes! I have been an Air Force Security Policeman for 9 years and am a Criminal Justice major at Ashford University.

First with regards to the 5th Amendment, during an invesitgative interview up until I determine you have committed a crime and I have detained/apprehended you I can ask you what is called investigative questioning... i.e. If you present signs of alcohol consumption, I can ask you if have been drinking, what and how much without violating miranda. It is all part of my initial investigation, once I determine you have committed a crime (usually after completion of SFSTs) then miranda applies.

Now onto the 4th Amendment, a few years ago the supreme court limited what was commonly referred to as search incident to apprehension. They did so by ruling a warrantless search could only be conducted if there was reasonable belief that evidence of the crime for which a party was apprehended could be recovered from the vehicle and there was a concern that waiting for a warrant could jeopardize the ability to obtain the evidence or for officer safety (i.e. the suspects aren't yet secured or someone may be getting back in the vehicle to depart, etc.). Once you passed the SFSTs, admittedly by the LEO you committed no crime therefore he could not justify the first part of the two part test (evidence of the crime apprehended because you were not apprehended) and the second part of the two part test was mute based on the LEO's own statements/actions. He was clearly not concerned for his safety but more so interested in finding evidence of a crime, any crime. I do not believe any other exigent circumstance existed that would have justified the warrantless search. In the LEO opinion, yes your rights were violated with respect to this.

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.

Now as to the magic your lawyer worked, Class C misdemeanors are a numbers game depending where you are. For example, here in San Antonio at the Municipal Court, you could get a ticket annually, pay the fine and obtain differred adjudication/probation so it never appears on your record. As long as you aren't getting 3 and 4 tickets a year you can do this indefinitely. My wife got a ticket from SAPD, totally forgot about it and when she finally went to take care of it (6 months later - thank you to the cop who offered the friendly reminder). They court immediately offered her the option to pay the fine and 90 days probation/dismissal.

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....

[puma guy]

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....

§ 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.

§ 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.

To be clear, which is correct, what you wrote or what is in the PC, since the two statements are seem to be in conflict with each other?

[Originalist]

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..

[puma guy]

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..

What you are saying as I understand it would be illegal to have a case of beer in my SUV that has one can missing and I could be arrested for "open container". i.e. the law considers a cardboard box, plastic ring or a carton a receptacle.

[Originalist]

As long as you signed the citation, you wouldn't be arrested... In fact there are only two traffic related offenses that you can not automattically go to jail for, they are speeding and open container (providing there is no DWI charge).

Short answer is yes you are correct, you could receive a citation for your 1 missing beer.

[Lambda Force]

Short answer is yes you are correct, you could receive a citation for your 1 missing beer.

I hope the judge would question the sobriety of a cop who wrote a ticket because someone over 21 had 5 unopened beer cans.

[tommyg]

I have had trouble with people thinking my truck bed is a public trash can
on several occasions I have found empty beer cans thrown in it. If
there is an empty beer can in the bed can I be arrested for an open container ???

[Originalist]

(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 shown here, the bed of your pick up (heck even your locked glove box) doesn't constitute the passenger compartment.... even if it was behind your seat in a single cab pickup you are good to go via definition in Transportation Code.

On a different note, if you have 5 loose beers in your vehicle, not contained in any other package where you can clearly see the contents partially removed then you may have just discovered a gap in the law, much like the gaps about safety seats... In Texas, if all seats with seatbelts/child safety seats are occupied then it is perfectly legal to have a kid on your lap, in the cargo area of a SUV... heck on the floor board even...

If you go to the gas station and buy 5 loose 24oz beers then they each are their own container, sealed with all contents.... right? That is how I would apply the statute with regards to enforcement but that is me, and IANAL nor am I a judge.

[bci21984]

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?

[puma guy]

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?

That very same analogy came into my mind! A magazine or box of ammo either one. I was not in agreement that a missing can could be construed as an open container, but wasn't going to say it. I don't even drink beer and the situation would never occur with me. I am glad things worked out in the OP's favor.

[i8godzilla]

I do not believe that the cardboard container nor the plastic ring is anymore an 'alcohol container' than the plastic bag the store put it into. What if you went to the store and bought two bottles of wine and the store put them in the same paper bag. You tun a corner and one slips out. Is this now illegal?

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..

A cardboard carton is NOT a container of alcohol! It is a container that holds other containers. Since Coors beer is delivered in a boxcar, under your definition, as soon as the distributor removes it from the boxcar it is an open container. That means that those cargo vans that make 'hotshot deliveries' with cases in the van are transporting open containers.

Next, how are you going to prove there is a beer missing and that I did not purchase only five cans. Since you cannot have an open container at a store that sells alcohol for off premise consumption do you go to every 7/11 and make sure that the singles actually came as singles and not in 6/12/18/24 packs?

To me it seems you are twisting the law to make a criminal out of a otherwise law abiding person. Might hold up to non-judicial UCMJ punishment but I think someone fresh from the Bar Exam will squash this in most courts.

[i8godzilla]

Short answer is yes you are correct, you could receive a citation for your 1 missing beer.

I hope the judge would question the sobriety of a cop who wrote a ticket because someone over 21 had 5 unopened beer cans.

I would enter the plastic ring into evidence and ask you--as the arresting officer--to make in contain alcohol. If it is really a container you should have not problem doing this.

[Originalist]

I personally have a conviction on an open container enhancement with a DWI with an open 30 pack with cans missing and no open cans in the car.

[Hoosier Daddy]

I personally have a conviction on an open container enhancement with a DWI with an open 30 pack with cans missing and no open cans in the car.

[bci21984]

I personally have a conviction on an open container enhancement with a DWI with an open 30 pack with cans missing and no open cans in the car.

Link to the online court docket? What dept do you work for? I would emplore you to consult with the attorney generals office on your interp of the term "container".