Ticket for Open Container
Hello Mr. Spencer,
I had a question about an "open container" charge. My wife and I came to visit Dallas, Tx from Oklahoma. We wanted something fun to do so we went to a club.
When we arrived, we saw two cops on bicycles. They flashed the light on us and did the regular cop thing. All they saw was a small Styrofoam cup. They asked for it and I gave it to them.
One cop asked what it was. I did not answer because they did not let me answer. So she assumed it was liquor.
She said it smelled like coke mixed with rum. This cup was only like 1/4 full (3/4 empty). Still unable to say anything they told me to poor it out. So I did.
Then they wrote me a ticket for "open container-plastic cup w/mixed drink." No one said it was liquor in the cup but the accusing cop.
All I was able to say was "Yes, the cup was mine", and, "Yes, I do still live in Oklahoma." That's it. Then they left.
I want to know is this even a valid charge under these circumstances? Does this affect my insurance? Can I beat this?
Dave (Last Name Withheld)
[This was originally a comment left on the Open Container entry. I decided to answer it fully in this new post.]
Dave:
You’re actually asking several good questions. Let me break them down.
What evidence does an officer need to write me a ticket for an Open Container violation?
Well, whatever the officer thinks is justification for the ticket. The legal term here is “reasonable suspicion”, which is an awfully low standard. Not to be silly, but for example here in Austin, they don’t have to convene a jury, or summon a judge out on Sixth Street to merely issue you a ticket.
Most folks who have gotten traffic tickets have heard the officer say that their signature on the copy of the ticket is not an admission of guilt, just a promise to show up in court and take care of it. Basically, a ticket is just a piece of paper, stating the officer’s belief that a crime has been committed.
What evidence does the prosecutor need to convict me, if I take this case to jury trial?
This, of course, is the much higher and more familiar standard of “beyond a reasonable doubt”. In the example you describe, a full litigation of the facts would include filing a Motion to Suppress the Evidence before a trial was even called.
While there might eventually be enough “evidence” for a Municipal Court judge to allow the case to reach the trial stage, the best lawyers will use this hearing to fully cross examine the officer about her memory, her version of events, and even litigate the issue of preservation of evidence.
Would an Open Container conviction affect my insurance?
I doubt it. But I don’t know. If this was an Open Container in vehicle charge, where the allegation was that you had it in your car, then perhaps – but I don’t really know. Probably depends on your insurance company.
If this was merely an Open Container ticket for possessing alcohol in a prohibited place, not having anything to do with a car, then I think it’s even less likely. I can’t tell from the information in your email. Still, you don’t want the conviction either way.
Can I beat this charge?
Never any guarantees, but your basic options here are to work out some sort of deferred disposition with a prosecutor, or take it to trial. Most Class C prosecutors aren’t interested in hearing your defense, believing your version over the officer’s, and giving you an outright dismissal. (See this post.)
Deferred Dispositions in Texas are expungeable if successfully completed, and that may be your ultimate goal here.
One more problem for your situation is that living out of State will make it more difficult to “fight” the case, in terms of litigation. That usually takes several trips to Court, and that can become impractical for what is essentially, a traffic ticket level offense, punishable by a maximum of $500.
There may be information on the back of your ticket about how to enter into a deferred by mail (I’m not familiar with Dallas Class C ticket procedures). If not, you may want to contact a criminal defense lawyer there who can help you out.
Read through and enter the discussion with the form at the end
