Is the open container law a dui probation violation? I want to plead not guily because I am not, but I know how unfair probation is? HELP ME!

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Is the open container law a dui probation violation? I want to plead not guily because I am not, but I know how unfair probation is? HELP ME!

I was picking up a friend at a party some people were having in a public parking lot. It was on the top of the parking lot. when I got up there, a little bit after everyone began to scramble yelling “the cops are coming” I had not been drinking, I have had a dui in the past and fixed, payed, and went through everything, I learned my lesson, I didnt think I had anythng to fear so i did not run. The officers gave everyone in my car an open container ticket. No one in my car was drunk nor did they posses any open containers, but there were cans on the floor due to the party.. what will hapen?

Asked on June 23, 2009 under Criminal Law, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

Having an open container is a DUI probation violation, not to mention an offense in and of itself.

As to your specific facts, I think that you have been charged with violation of California Vehicle Code Section 23226 - Storage of Opened Container in Passenger Compartment.

Section 23226 (a) reads as follows:  "It is unlawful for any driver to keep in the passenger compartment of a motor vehicle, when the vehicle is upon any highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle containing any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed."

The fact that the containers were recently emptied means that they were probably wet which constitutes "contents of which have been partially removed" as provided for under the statute.

As or whether or not you were driving, under California law the officer does not need to physically witness this.  Driving may be proved through circumstantial evidence if not directly observed.  A car's hood that is warm to the touch, for example.    

However at the time you were driving the containers were not yet in your car.  They weren't brought into your vehicle until after you had parked.  Even if you had been driving with open containers, I think that you have a defense to the charge because you were not on "a highway or land as defined under subdivision (b) of Section 23220".  You were in a parking lot.

What you need to do now is to consult with an attorney in the area who specializes in DUI cases.  He will be well versed in the specific laws involved as well as be familar with just how the local authorities may handle a case such as this.  DUI laws are technical and perhaps he can possibly get the charges thrown out or at least help to minimize the penalties.

 


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