Open Alcohol Container in California
I just got home to Fresno where I go to school from visiting friends at UC Santa Barbara for the Halloween weekend there. While there I was cited for having an open alcohol container. Listed as 363 CMC on my ticket. I was walking to a friends house with a bottle of Jagermeister that had been opened earlier, the seal was broken, and the top was screwed on. I am 21 years old and at first I thought it was just an ID check. The officer told me that since the seal was broken the bottle was considered to be an open container. I tried to find a description of the open container law for California but everything I read was in regards to being in a vehicle. Does anyone know any clarifications about the open container law? Any advice or help would be arrpeciated. Thanks! Court date is Nov. 6th, next monday.
Re: Open Alcohol Container in California
He was right. Once the seal is broken, it is "open". There are a number cases in CA that affirm that position, and every jurisdiction I am aware of (including Santa Barbara) also holds with that interpretation.
- Carl
Re: Open Alcohol Container in California
Here is the code which you have been cited for:
Sec. 36-3. Display of open containers.
No person shall have in his or her possession on any public street or other area described in section 36-2 any bottle, can, or other receptacle containing any intoxicating liquor which has been opened, or a seal broken, or the contents of which have been partially removed. This section shall not be construed to apply under any circumstances governed or regulated by the California Vehicle Code. (Ord. No. 4055, § 1)
The seal was broken ... you were in violation.
- Carl
Re: Open Alcohol Container in California
Re: Open Alcohol Container in California
Obviously, Carl is correct. So, if people were going to a BYOB party at a friend's house, they could legally transport a bottle with a broken seal in the trunk of their car. However, if they parked on the street in front of the friend's house, they would be in violation of the law the second they removed the bottle from the trunk.
If you were 41 years old instead of 21 (and presuming you were sober and minding your own business), it's hard to imagine this would have happened. I would suggest you speak with an attorney and follow his advice. Hopefully, you had the bottle stowed in a bag or some other larger container. If not, that's going to make things a little tougher.
Re: Open Alcohol Container in California
In California (and some other jurisdictions) the definition of "possession" requires an intent to possess. Thus, unintentional possession does not constitute an offense. Sometimes, unintentional possession is called "transitory possession" -- but that is not strictly accurate because "transitory" describes a short duration, but the duration is irrelevant. Examples of unintentional possession *could* be (if the jury agrees) touching something in order to move it out of the way, or picking something up to dispose of it properly and/or safely. So, if you saw a previously-opened bottle of alcohol on the sidewalk and picked it up to properly dispose of it and did so at your first opportunity(e.g., to abate litter, for recycling, and/or to prevent a minor from accessing it), then arguably that would not constitute intentional possession. But yes, intentionally carrying on the street a previously-opened bottle of alcohol is intentional possession, and against the law.