(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)