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  1. #1
    Join Date
    Nov 2010
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    Default Open Container Ticket - I Did Not Know the Container Was in the Vehicle

    My question involves a traffic ticket from the state of: Texas

    I received an open container ticket. I was stopped for failing to signal to change lanes on a highway. When the officer approached she asked for my license and insurance which I gave. She then asked me to give her a can that was sitting in my cup holder. I said excuse me? She then pointed to the can in a foam can holder. I gave it to her and she shook it. There was a small amount of liquid in the can so she pulled in out of the koozie and it was a beer can. I had no idea the beer can was in the car. It was my husband's who had driven the car prior to my use. I have requested a court date to plea not guilty because I did not know the can was in the car. The can had been there for 8 days so the contents was probably rancid. (The car was parked at the airport while I was out of town on business.) What are my options?

  2. #2
    Join Date
    Sep 2005
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    98,846

    Default Re: Open Container Ticket - I Did Not Know the Container Was in the Vehicle

    You can try to sell that story to a prosecutor or, if you wish, to the judge or jury at a trial. The thing is, "I didn't know it was there" is about the most common defense to carrying contraband in a car and about 99.999% of the time it's not true - so it will probably be a tough sell trying to get the prosecutor or court to believe you. You can go over the details of the traffic stop with a local lawyer - perhaps a challenge could be made to the traffic stop, and a local lawyer can probably tell you if there's a way to avoid a criminal conviction such as a deferral or through a plea bargain.

  3. #3
    Join Date
    Nov 2010
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    2

    Default Re: Open Container Ticket - I Did Not Know the Container Was in the Vehicle

    Thanks for your reply.

    True...regarding the "I didn't know it was there" defense. Wish I had known it was there though...could have at least emptied the contents or hid the can!

  4. #4
    Join Date
    Mar 2009
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    LA LA Land
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    9,170

    Default Re: Open Container Ticket - I Did Not Know the Container Was in the Vehicle

    Quote Quoting mov
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    Thanks for your reply.

    True...regarding the "I didn't know it was there" defense. Wish I had known it was there though...could have at least emptied the contents or hid the can!
    "Emptying the contents" would not have helped... I still would be an "open container"... Safest bet would be to have thrown it out or not to have had it there to begin with!

  5. #5
    Join Date
    Feb 2010
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    616

    Default Re: Open Container Ticket - I Did Not Know the Container Was in the Vehicle

    Quote Quoting That Guy
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    "Emptying the contents" would not have helped... I still would be an "open container"... Safest bet would be to have thrown it out or not to have had it there to begin with!
    Yes, it would have helped. A container with NO "alcoholic beverage" in it is not a violation of Sec. 49.031.

    However, minute amouts of residue could be considered to meet this requirement.

    Did the officer establish it was an alcoholic beverage? Was the alcohol content tested?

    The state needs to prove element (b) which is that you "knowingly" had this in your car. Your hubby could testify it was his fault (hmmm, could he be charged? Probably not, since he would NOT say that he actually drove the car, just that he was working on the car and left it in there the last weekend....)

    GL

    A

  6. #6
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Open Container Ticket - I Did Not Know the Container Was in the Vehicle

    (1) "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.
    So, if there is liquid remaining, it is an "open container". Generally, just dumping out the contents does not result in a 100% empty can. There always seems to be a little that defies all attempts at removal.

    It doesn't matter if hubby testifies it was his can or not. That has nothing to do with the OP knowing of the can or not. All that matters if the OP knew of the can. The only argument there would be that the OP wasn't aware it was a can of beer.

    . Now, there are two schools of thought. 1. the reasonable man test. Would a reasonable person be aware of the can where it was seen? It is simply impossible to argue no to that as it was in plain site of the driver. Would a reasonable person be aware it was a can of beer? Hard to decide. It would depend on a lot of facts not present. 2. setting aside the reasonable man test, was the OP actually aware of the can. Since neither party can prove a claim either way, it ends up with the veracity of the defendant and the judges discretion.


    I'm betting it would be decided based on the second theory. (like Mr K stated in the first reply)

  7. #7
    Join Date
    Feb 2010
    Location
    CT & IL
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    5,273

    Default Re: Open Container Ticket - I Did Not Know the Container Was in the Vehicle

    well then, they will have to prove it alcoholic beer at trial ...

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