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  1. #1
    Join Date
    May 2010
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    Los Angeles, CA
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    9

    Default California Open Container Citation

    My state is CA.

    A former client (in an unrelated civil matter) has asked that I assist him with an open container citation.

    Client was pulled over and officer noted a beer can in the cupholder of the vehicle, not on client's person.

    Client was cited under VC 23222.(a), which states "No person shall have in his or her possession on his or her person, while driving a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle, containing any alcoholic beverage..."

    Citation states only the following: "23222(A) VC OPEN CONTAINER COLD BUDWEISER CAN COLD TO TOUCH." Citation makes no mention of can being on client's person nor does it mention the fact that the can was actually in the cupholder.

    Trial date is many months away, and I am concerned that the officer may forget the fact that the can was actually in the cupholder of the vehicle. I wish to depose the officer in order to secure this fact and seek dismissal at trial. I am unfamiliar with the process of deposing an officer with respect to a traffic citation and do not want to contact the officer directly in the event that such contact can be misconstrued. To whom should I make this request?

    Thank you for any assistance.

  2. #2
    Join Date
    Sep 2005
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    Default Re: California Open Container Citation

    You believe this can be distinguised from People v. McCloskey (1990) 226 Cal.App.3d Supp. 5, 277 Cal.Rptr. 509?
    Quote Quoting People v McCloskey
    A review of the transcript in the light most favorable to the judgment reveals reasonable inferences and direct evidence to support the trial court's finding of guilt. The officer saw the defendant drive onto Redwood Road, stop, and get out of his truck. Two one-half-filled cans of beer, with condensation on the cans, were on the truck console. There were only two persons in the truck, defendant and a passenger. The trier of fact could find by circumstantial evidence that the defendant, while driving, had the open container of beer on his person in his hand and had set it upon on the console upon arriving at Redwood Road. Condensation indicated a freshly opened can of beer.

  3. #3
    Join Date
    May 2010
    Location
    Los Angeles, CA
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    9

    Default Re: California Open Container Citation

    I do believe the cases are distinguishable.

    It's quite clear that beer cans resting precariously on the dashboard are far different than a single can in a cupholder. Specifically, beer cans teetering on the dashboard are sure to fall once the car is in motion. This indicates that the driver in McCloskey had the cans on his person and likely placed them on the dashboard once the car came to a full stop. Rhe fact that the can in my client's car was secured in the cupholder cannot give rise to the same inference.

    Further, there was no indication of condensation on the can found in my client's car. The report mentions only that the can was, "cold to touch". This citation took place in the dead of winter when, surely, anything left in the car was similarly "cold to touch". Again, the absence of condensation in this case csnnot give rise to the McCloskey inferences.

    Or am I crazy?

  4. #4
    Join Date
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    Default Re: California Open Container Citation

    The key isn't that the cans were precariously positioned - the key is that it was a cold, open beer. Your client, apparently alone in a vehicle, had a cold, open beer in his cup holder. Is he going to argue that a ghost put it there?

  5. #5
    Join Date
    Mar 2009
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    Default Re: California Open Container Citation

    Quote Quoting KV&K Law
    View Post
    I do believe the cases are distinguishable.

    It's quite clear that beer cans resting precariously on the dashboard are far different than a single can in a cupholder. Specifically, beer cans teetering on the dashboard are sure to fall once the car is in motion. This indicates that the driver in McCloskey had the cans on his person and likely placed them on the dashboard once the car came to a full stop. Rhe fact that the can in my client's car was secured in the cupholder cannot give rise to the same inference.

    Further, there was no indication of condensation on the can found in my client's car. The report mentions only that the can was, "cold to touch". This citation took place in the dead of winter when, surely, anything left in the car was similarly "cold to touch". Again, the absence of condensation in this case csnnot give rise to the McCloskey inferences.

    Or am I crazy?
    Here's my uneducated opinion:

    I don't think the location of the can will make much of a difference. The essential element that must be met here is "Constructive possession" (i.e. dominion and control) with knowledge of (a) its presence and (b) that a driver is prohibited from possessing it -an open container- while operating a motor vehicle. Whether it was on the dash or in the cup holder, the defendant had reasonable access to it (within reach) in either case.

    Furthermore, "condensation" need not be established as per the statute... Neither is the temperature of the can... (from VC 23222 "any bottle, can, or other receptacle, containing any alcoholic beverage..."). Though it is likely that the officer made that notation to establish that the can was freshly opened (as referenced in McCloskey).

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