You're driving sober with empty bottles of alcohol on the back seat that you're going to recycle.

[no_hypocrisy]

You didn't drink any of the contents in the motor vehicle. The alcohol was consumed at your home.

You get a ticket for open container of alcohol in a motor vehicle.

Should you be convicted? Should the standard be simple: either the bottle was unsealed or it was sealed? Or should it matter you were hauling garbage?

[warrior1]

1. Open container of alcohol vs empty containers?

that's your question?

No, they won't give you a ticket. That would be ridiculous.

[no_hypocrisy]

3. All empty. But obviously "open" in order to be empty.

Yeah, dickhead cop gave my client a ticket.

Thought I'd run my defense by you.

[warrior1]

5. that is dickheadish

The officer his going to be embarrassed once this goes to court.

[Hassin Bin Sober]

10. Were the empties bagged? Or were they laying about the car?

[freshwest]

26. That would have shown they were there for recycling, not an accumulation of the driver's actions.

This is a hypothetical and didn't really happen, did it?

Even drinking places have accumulations of empty bottles that are likely to be recycled, like places that serve soda in cans.

[blueamy66]

2. If the containers are empty, there is no alcohol in them...

therefore, no open container of alcohol.

Only a dickhead cop would cite someone for that.

[alphafemale]

4. Even if some dickhead cop cited you for it. I'm pretty sure any judge would throw it out.

And you could embarrass the hell out of them by going to the media.

Your local news station would lap this shit up.

[Chan790]

6. jurisdiction?

It might be ridiculous but here in MD, empties are open containers. You've got to put them in the trunk. VA is better though, you can have open containers in the passenger compartment as long as (open containers=total occupants-1 and the driver passes a sobriety test.) That is, everybody can have an open container (and be drinking) except the driver, though empties still count as open.

DC? I have no idea. We got pulled over one time and got out of it with "Hey officer, want a beer?"

Random things one knows as a former DC college student. We used to celebrate the VA state line halfway across the Rosslyn Bridge; it seems kinda immature in retrospect.

[no_hypocrisy]

7. New Jersey.

Nothing in case law or the statute that advises what to do with empties.

[quakerboy]

21. How about hatchbacks?

[taterguy]

8. Sounds like the client did something else that was legal but annoying

In my jurisdiction, that's the only way someone would get a ticket for that, if the cop wanted to "punish" them.

Are there bumper-stickers involved? Maybe it's a First Amendment issue that you can appeal all the way to the Supreme Court.

[no_hypocrisy]

9. Here's the thing. The cop wanted to get him on ANYTHING.

Made him take a Breath-A-Lyzer. He was a 0.2 and illegal level is 0.8. So couldn't get him on DUI and decided to search (with consent) my client's car.

[Hassin Bin Sober]

11. Are you an attorney?

[no_hypocrisy]

12. yes

[Hassin Bin Sober]

14. Watch those decimals.

:)

[taterguy]

17. Sounds like the client answered "No" when asked if he had been drinking

Cop didn't believe him and gave him a Breathalyzer.

Results showed a slight amount of alcohol but cop might be pissed because client denied drinking.

Moral of story: Do not lie to cops if it's something they can easily verify.

Cops almost always have discretion about whether or not to write a citation. Never give them a reason to write you one.

[rug]

13. N.J.S.A. 39:4-51a. Consumption By Operator Or Passenger.

a. A person shall not consume an alcoholic beverage while operating a motor vehicle. A passenger in a motor vehicle shall not consume an alcoholic beverage while the motor vehicle is being operated. This subsection shall not apply to a passenger of a charter or special bus operated as defined under R.S.48:4-1 or a limousine service.

b. A person shall be presumed to have consumed an alcoholic beverage in violation of this section if an unsealed container of an alcoholic beverage is located in the passenger compartment of the motor vehicle, the contents of the alcoholic beverage have been partially consumed and the physical appearance or conduct of the operator of the motor vehicle or a passenger may be associated with the consumption of an alcoholic beverage. For the purposes of this section, the term "unsealed" shall mean a container with its original seal broken or a container such as a glass or cup.

c. For the first offense, a person convicted of violating this section shall be fined $200.00 and shall be informed by the court of the penalties for a second or subsequent violation of this section. For a second or subsequent offense, a person convicted of violating this section shall be fined $250.00 or shall be ordered by the court to perform community service for a period of 10 days in such form and on such terms as the court shall deem appropriate under the circumstances.

-----

The presumption applies if anything is left in the bottle, not if it's completely empty.

[Hassin Bin Sober]

15. I wonder how residue factors?

Most bottles are never completely empty. Unless one drains them by turning them upside down. I rinse mine unless it's after a big party.

[no_hypocrisy]

16. Ticket was a 51b - open container, not consumption.

[struggle4progress]

18. 51b says:

"the contents of the alcoholic beverage have been partially consumed and the physical appearance or conduct of the operator of the motor vehicle or a passenger may be associated with the consumption of an alcoholic beverage"

I'm not an attorney, but I would assume "contents .. partially consumed" might include the possibility "contents completely consumed" if there was any liquid beverage remaining in a bottle, but that the modifier "physical appearance or conduct of the operator .. or a passenger may be associated with the consumption" is inoperative if (say) the driver had not been drinking and the bottles had been rinsed for recycling before the trip

The intent of the law is clearly not to prevent transport of the bottles for recycling: it is to keep the driver from dropping the bottle, or handing it off to a passenger, when stopped by the police, and then claiming with beery breath that they had no been imbibing

[no_hypocrisy]

19. Thanks. That's the way I was looking at the situation too.

[JonLP24]

20. Put the bottles in the trunk to be on the safe side

Don't know the laws regarding on the back of pick-ups but can carry open containers in your trunk.

[pitohui]

22. did this happen in texas? i was warned not to do that there

i was told that even if you have a SEALED bottle, put it in the truck

i almost forgot, until i stopped at a popular place to buy a cheap texas beer...i started to put it in the back seat, then noticed the police car parked nearby...oopsy...i took it out and put it in the trunk...the cop car had started to turn his engine on, then he turned it back off, guess i spoiled his fun, it appeared obvious to us that he planned to chase down the out of staters and give them a ticket

in some states even if the bottle was NEVER opened, it needs to be in the trunk

no of course you "shouldn't" be convicted, but let's forget about should or shouldn't, let's just protect ourselves...if the situation was as you described, you were simply robbed by a guy wearing a uniform, which is very sad

on edit--ok, i see this happened in new jersey, don't know what to tell you, it seems obv. the cop just wanted to screw the guy...altho a blood alcohol level of 0.2 is pretty toasted in these parts, i'm guessing you meant 0.02 (as in he walked past someone else drinking a beer)

[dembotoz]

23. fulls or empties always in the trunk--i have no luck -ever

hatchback--guess you are screwed.

in wisconsin one of the senators being recalled is calling for greater and greater dui punishements

perhaps when we recall walker they will push for crucifiction

[LynneSin]

24. Just to be safe I would put the empties in the trunk of the car

but that's just me.

[JustABozoOnThisBus]

25. It's not easy being green

This never occurred to me. I put empty beer containers in a plastic bag, and put it behind the driver's seat to take them to be recycled. Maybe I should just let them pile up until some youth group has a can/bottle fundraiser, let them get busted for underage posession.

:hi:

Best of luck with the case. (the legal case, not the case of beer)