incident with Johnson County Sheriff

[jmra]

As I read this thread I can't help but laugh thinking about all the drive-through daiquiri shops I would see everyday in New Orleans. Louisiana also has an open container law. I wonder if the Styrofoam cup with the plastic lid is considered a closed container but becomes an open container when the straw is pushed through the lid.

[E.Marquez]

Wow! I never thought one comment on my interpretation would have such a breath of life into this discussion.....

And why not? your a law enforcement officer that has described the implementation of a law in a way most are not in agreement with..

Wow, the reason an AG opinion was requested was based on one guys views he expressed on an internet forum......

No see Im a guy on the internet, your a reported LEO, who is charging my fellow service members with a crime I do not believe they have committed in my view of the law.. More so, I get, my view holds no weight.. It's well established an officer's opinion on the law is all it takes for the arrest, factual, correct, and the rest is often left to the DA or a Judge.. of course by then the arrest and ride has been forced upon the citizen.. That bell can not be un-rung. While no convection may take place the arrest will forever more bee public record.

Did I at least put up a good argument? What about the "testimony"..... This is something I have put a little thought and care into..... Can I at least get that much?

Professional, considerate,polite for sure

Never the less I disagree with your reasoning, logic you present as justification, and by your statements, you have used, that in my opinion false reasoning and justification to charge, and apparently get a convection on a fellow service member, who in my opinion did not do anything wrong (for that charge, the DUI thing,.. Im fine with appropriate punishment upon convection.)

I find no malice in your position, attitude and argument Yet I think your wrong, and will continue until an AG opinion has been rendered, or im told there will not be one. I would do the same thing if a LEO here stated his opinion was, all persons in a car that contains a gun, inside a school zone will be arrested as they have access to the gun, and do not have a CHL, no matter the person with the gun in his possession does..
Or all guns found at the scene of a car accident, will be confiscated, for ballistics testing and SER # checks in case it was stolen or used in a crime. or...anything thing else I believe is an abortion of the actual law as written.

LEO's have a tough job, and I can imagine it is very difficult to do well, professionally. I do though have a huge problem when a LEO brings in his personal opinion and enforces a law that does not exists, or in a way it was not intended. A citizen is told, ignorance of the law is no excuse, yet the same standard is not applied to LEO's, DA's, Judges. Some internal censure or reprimand may take place, but what should happen is they should be arrested, and presented before a judge, with them to paying for a lawyer from personal funds. If they are acquitted, or found not guilty, then so be it. Just like a citizen who is arrested, detained, tried, and then a case is dismissed by a judge or the DA refuses to bring it at all, due to an officers misapplication or ignorance of the law.

Ignorance of the law is no excuse... and both the enforcer and the enforce e should be held to the same standard.

[Dave2]

As I read this thread I can't help but laugh thinking about all the drive-through daiquiri shops I would see everyday in New Orleans. Louisiana also has an open container law. I wonder if the Styrofoam cup with the plastic lid is considered a closed container but becomes an open container when the straw is pushed through the lid.

I believe that is the case, but I can't recall where I heard it.

[E.Marquez]

As I read this thread I can't help but laugh thinking about all the drive-through daiquiri shops I would see everyday in New Orleans. Louisiana also has an open container law. I wonder if the Styrofoam cup with the plastic lid is considered a closed container but becomes an open container when the straw is pushed through the lid.

I think in Texas, as long as the straw wrapper and lid are taped in place, it is considered a closed container.. or at least, that is what i have been told by two departments in the FT Hood area when i asked. BUT.. is it a tamper proof tape? i've never looked, so do not know. We have one of those drive though places in Copperas Cove, i stop in to get select beer once and awhile or propane .. but have never looked at the other offerings.

[Originalist]

I guess in part I have never seen someone taken for "the ride" as no civilian I've ever had in custody has never not been home in their own bed after a few hours of their time. We don't operate quite the same as civilian LE with regards to civies, unless they are have a warrant out of Texas or another state.... After the investigation they are not magistrated or incarcerated pending a bail/bond hearing, etc.

I always try to error on the side of the subject.... i.e. the drunk, if I have questionable information, I will mitigate rather than incarcerate, etc. I like that, just thought that one up.....

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.

I hope I am not coming across as one of those LEO's you mention?

And for the record, civilians (on base) go to Fed Court, most service members with a basic DWI will never see a "conviction" as most are dispatched with an Article 15.... If they were, it would be via Court Martial, on base.

[sjfcontrol]

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.

[Originalist]

That is a very good question as I am not sure there is really a law that makes consumption a crime.... as the law makes no mention of consumption, only possession of open container.... nor does it limit where it is a crime like DWI (i.e. in a public place).... And now you know why I am a cop and not lawyer.... This thread has been perverted way off course from the OP, part to my own doing.

Here is my last bit on this, I am sorry you don't agree with my interpretation of the law. I mustn't be to far off my rocker to have had the concurrence of at least one judge/prosecutor.

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.

I don't feel like I am doing anything wrong, however this wouldn't be first time I thought I was doing something right but was required to stop so if there is an opinion/case law that defines what an "other receptacle" is, I will honor that and I will come back here and commit to that to the several of you!

[sjfcontrol]

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

[Keith B]

....if there is an opinion/case law that defines what an "other receptacle" is, I will honor that and I will come back here and commit to that to the several of you!

The exact phrase 'bottle, can, or other receptacle' is used in many different states alcohol related offense statutes. I believe it is a generic cover all bases statement and would constitute any glass, pitcher, keg, etc that contained a trace amount of alcohol.

Even though we had no open container law in Missouri where I was a LEO, and we were largely laissez-faire on the laws due to Anheuser-Bush being a LARGE 'influence' in the state (pun intended), the 'other receptacles' phrase was used in some other statutes like the food code, and it was literally a 'catch all' for any container. Had a friend who was a health inspector and he frequently wrote up restaurants for using an 'improper other receptacle' to store food in.

I had one incident where I had just gotten off work and arrived at home when I heard a car crash out in front of my house. I lived right on a curve in the street and people would periodically lose control and wreck. Anyway, I was still in uniform and when I got outside the passenger had just gotten out and was still holding a now broken partial pitcher of beer. He dropped it and ran out into the woods when he saw me heading across the street. Caught the driver, he had been drinking, but he was not intoxicated. Had we had a open container law, we could have gotten him on that. However, I did find a nice large bag of pot in the truck, so the open container and alcohol would have been the least of he and his friend's worries.

[Bear67]

Need to lighten this up! I don't drink at all anymore, But I think I would tell the officer that those bottle caps were part of my bottle cap collection--been collecting them for years.

Off topic, but does anyone in the San Angelo area remember a bar/club across from the Stockyards maybe south and east, that had the parking lot, maybe half acre, paved with bottle caps and pull tabs to a depth of several inches. Not my stomping grounds anymore, but in earlier days, I bought a lot of sheep there.

[puma guy]

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.

[i8godzilla]

As I read this thread I can't help but laugh thinking about all the drive-through daiquiri shops I would see everyday in New Orleans. Louisiana also has an open container law. I wonder if the Styrofoam cup with the plastic lid is considered a closed container but becomes an open container when the straw is pushed through the lid.

I think in Texas, as long as the straw wrapper and lid are taped in place, it is considered a closed container.. or at least, that is what i have been told by two departments in the FT Hood area when i asked. BUT.. is it a tamper proof tape? i've never looked, so do not know. We have one of those drive though places in Copperas Cove, i stop in to get select beer once and awhile or propane .. but have never looked at the other offerings.

I know this place well and am a regular customer (no, not for daiquiris). I have talked to the owner about this once before. According to him, the TABC said that as long as the tape over the straw opening stays in place it is considered unopened. He told me at one time he tried to use lids without the straw opening but some folks complained. My guess is that it made it too hard to drink it on the way home.

[E.Marquez]

I know this place well and am a regular customer (no, not for daiquiris).

Well that leaves beer, propane or renting a U-haul

[steveincowtown]

At one of the places in Fort Worth, my "friend" told me, that they come in plastic sealed bags....because nobody could ever break that code....

[i8godzilla]

I know this place well and am a regular customer (no, not for daiquiris).

Well that leaves beer, propane or renting a U-haul

You are three for three...............