What to about an open container summons?

II have a court date for an open container summons. I highly suspect that the summons was incorrectly filled out at the time of issue and may be dismissed. If this would occur after a plea is entered or if it would be looked beforehand. Additionally, if a guilty plea is entered will I still only incur the original $25 fine? If a plea of “not guilty” is entered, will it require a second court date before actually addressing the summons itself?

Asked on July 23, 2012 under Criminal Law, New York

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

Effective July 1, 2004 individuals who receive a Criminal Court Summons citing a violation of Section 10-125 (2b) of the N.Y.C. Administrative Code- “Consumption of Alcohol on Streets Prohibited” ( also known as “Open Container Violation” or “Consumption of Alcohol in Public”) are eligible to plead guilty and pay a $25 fine by mail. This program is available to persons charged with this petty offense only, and only if no other summonses are issued to the individual at the same time.  If you plead guilty you do not have to appear in court.  If you suspect that the summons is defective and will be dismissed you need to make that allegation prior to the court asking you your plea. But the summons itself must contain an assertion that the defendant “drank or consumed an alcoholic beverage or possessed, “with intent to drink or consume,” an open container containing an alcoholic beverage.”  People v. Torres, 1 Misc.3d 126A, (App. Term. 1st Dep’t 2003).  If the summons itself does not contain these words, the charge is subject to outright dismissal.  But you may not see the factual portion of the summons until you get to court. You can try and go down before hand and see what it says once it is entered in to the system and before the court date. You may not want to plead guilty at all and take the chance. That is a decision for you and your lawyer.  Good luck.  


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