Open Container Plea Bargain in a California DUI Case
When it comes to alcohol-related offenses, one of the biggest ways that the police are able to justify a pull-over, a search or a stop, is if someone is foolish enough to — what we call is — “wave the flag.”
Meaning, they have an open container of alcohol and they show while they're driving or while the driver is driving — usually it's a passenger that's got that open container of alcohol — and then the police are able to stop the vehicle because they now have a violation because the person is drinking alcohol in a vehicle. Having an open container of alcohol in a car is illegal under California Vehicle Code 23222(a).
It's not just illegal to drink and drive, but also have any open container of alcohol in the vehicle—even if you're completely sober.
However, the penalties for carrying an open container are less severe, and this charge is preferred to a DUI conviction. In some cases, it may be possible to have your DUI charge reduced to an open container violation.
Probable Cause To Ask Questions
A lot of times that justifies them being able to ask everybody questions, search the car, and now you've got yourself in a bad position because not only will the person drinking the alcohol get in trouble and be cited and given a ticket, but also the driver who was allowing somebody in their vehicle to drink alcohol will also be cited as well and now they've got to go into court and deal with an open container ticket.
The biggest thing I see this whole concept of an open container doing is helping the police be able to search for other more serious things.
Like for example, if they see that open container, they can pull the driver over and they can test that person for a DUI and a lot of times the driver is getting arrested because everybody in the car was drinking including the driver and one of the passengers was foolish enough to make it clear that they were drinking alcohol in the car and that is usually the catalyst for the arrest of the driver in the vehicle.
What I see a lot of times in these open container cases is, the person will spill the alcohol all over the inside of the vehicle so they can try to avoid detection by law enforcement once the car is pulled over. This obviously, is not going to work. The police are going to smell the carpet.
Obviously, if there's bottles of beer in the car the police will still write the open container ticket if they can determine that the substances that was spilled on the carpet of the car was alcohol and they will give the driver an open container ticket and they also will cite the passenger if they can actually identify somebody as holding a glass, a bottle or a cup of alcohol.
But again, really this is just helping the police pull over the car, check out to see if the driver has insurance, a valid driver's license, the car's properly registered and a lot of times they'll search the car, pull all the passengers out and look for drugs and weapons.
So, the open container, though it is a small infraction, can cause a big problem if the individuals inside the car are up to no good.
Open Container Violation is Better Than a DUI
If you've got an open container ticket, you should hire an attorney because a lot of times these tickets can be squashed for infractions, non-crimes with a very small fine. Sometimes, you might even be able to get traffic school if the matter is handled the right way.
If they find other things in addition to the open container and charge you with those things, obviously if you've got passengers in the car, you may have an issue that somebody else had control over whatever they find in the car that they're trying to use against you and you might also have an issue that it's an illegal stop and illegal search depending on the circumstances of the case.
Obviously, a criminal defense attorney who has handled those type of cases is in the best position to evaluate whether this whole open container situation gave rise to a lawful pull over, a lawful search and a lawful arrest. Those are all the things you're looking at whenever somebody gets in trouble and is arrested by police and is facing criminal charges.