A tricky question about open containers?

Question

This is a tricky one. My husband, who will be 19 before his court date for this citation, was the Designated Driver for three of his (of-age) friends. He drove them to a local club, then headed home. Unbeknownst to him, one of the guys had left an empty cup in the car that apparently had a mixture of Vodka and punch in the front seat. It was, of course, empty at the time and had been thrown in the floorboard of the front passenger seat. An officer pulled my husband because his seatbelt appeared to be just draped over his shoulder. (He was using the friend's car- in which the seatbelt on the driver's side is broken) The officer insisted that he smelled alchohol, searched the car, and found this empty cup. He asked my husband to take a Feild Sobriety test and a breathalyzer (he of course agreed) and, after making him blow three seperate times, finally accepted the fact that my husband had not been drinking. (He doesn't drink- he just DD's for his friends). (see details below)

Anywho, he slapped him with a citation citing that he was "under the age of 19 with possession of an open container of spirituous liquor in a motor vehicle" and would not allow my husband to drive the vehicle home. I had to go pick him up from the scene.

My question is this: my husband has never been in trouble with the law in any way, didn't blow anything, and the cup was empty in a car that wasn't his. Isn't there a way of fighting this? The cop was obviously stereotyping because of his age- which I can perhaps understand his reasons, however, do you think that if we explained this to the DA that they would not pursue such a trivial and circumstantial citation?

State: North Carolina (Pasquotank County)

Goz1111- Good point. I hadn't thought about that. But when I asked him, he said he hadn't said a thing. It's just the city cops around here. Honestly- my uncle is a retired sherriff, and most of my family have worked as correctional officers, police officers, etc. But when we moved here, the harassment from the local PD was just unbelieveable! They search your car for anything- seriously! And my husband was dressed in a nice shirt and tie (he's a car salesman) but because he was young I guess, and riding around uptown at 12:00 midnight, they suspected him of everything under the sun. I suppose we'll just talk with the DA before court and explain the situation. And you all had good points also about analysis of the cup. They just wrote him a ticket and made him call someone to pick him up. (lol- if I could have gotten my hands on that officer- I'm seven and a half months pregnant and he called me in the middle of the night for this crap? Haha)

Answer 1

What you describe is not an open container. The correct wording, at least where I worked was, transportation of alcohol, open container, seal broken. I honestly don't believe there is a case against your husband. If there was any residue/liquid left in the cup, it should have been collected, and sent to the lab for analysis. FYI, Alcohol does not have an odor. It is what is added to alcohol that gives it an odor.

Answer 2

Yes there is a way to fight this.

First at the court hearing have your husband bring all the passengers that he drove that evening with him. Have your husband inform the court that while he was cited he did not nor would he have consumed as he was the DD and he takes this role very serious.

He can point to his buds and advise the court that these were the people that he transported that evening....just like all the commercials and ads ask us to do with our drinking friends.

You husband can also apologize to the court for the oversight of allowing someone to get into the vehicle with a drink and that was a good lesson and he will from this point on check for open containers.

I think the court will dismiss the case....make sure that this doesn't impact his insurance as well.

Answer 3

I would find it hard to believe that the local district attorney is going to pursue this charge, but never know

Curious when your husband was pulled over and the officer said he smelled booze coming from the cup did your husband at that time admit that yes a third person had been drinking in his car? if so then he might have admitted to a crime , could be a problem if the DA wants to move ahead

Answer 4

I agree with you that it seems trivial but they will pursue it. You can make a plea to the judge and explain the whole story to him. You will probably have to pay a fine. The fact that he had not been drinking nor has ever been in trouble will help. This is a good lesson for all designated drivers to be aware of thier charges because DDs are ultimately responsible for the actions of the drinkers.

Answer 5

I feel for you and believe that a judge will see this case for what it is. A mistake.
However i think this law your state has is amazing! I wish we had such laws here in Australia where teenagers are killed everyday on our open roads due to grog or the shenanigans of the cars passengers, who may be drunk. It would save so many lives.
BB
Ariel

Answer 6

How do you close a cup ?

I know that when the "open container law " was passed (here anyway) the cops would ticket anyone even if the container was in the trunk or bed of a pick-up. it didn't matter if it had alcohol or water or cola it was still an open container.

If the cops evedince (if not destroyed or omited ) would show he was not drinking. what is to say the cup only had punch or cola in it unless it was confiscated and tested for alcohol content.
also the open container ticket(here anyway) will go against your drivers record.

Answer 7

when you fool around with the law, there is no certain relationship logic and justice. However, it would seem patently ridiculous that the charges could be entertained by a judge. Find an attorney and ask that the charges be dismissed.

Answer 8

husband?? 18?