TexasCHLforum.com

AFCop wrote:I personally have a conviction on an open container enhancement with a DWI with an open 30 pack with cans missing and no open cans in the car.

Is the Air Force/Federal or in an actual Texas Court?

US District Court for the Western District of Texas

AFCop wrote:US District Court for the Western District of Texas

So the missing container was based on Federal Law/Regulation, not the Texas PC, correct?

So if one went to the store and, among other items, buys a case of beer, then swings by a buddies house to say "hi" and the buddy asks for a few beers 'cause he's out. Continuing home would be a criminal act? The law truly is screwed up.

TPC/Trans Code is assimilated via Title 18 USC for the US District Court. We apply Texas law and definitions when dealing with civilians on base. Its like everything else I guess, its all in interpretation. Best way to avoid the ride or the wrap, depending on your view, is to keep it out of the passenger compartment (as defined).

I have never tried to charge someone with open container if it didnt involve an open bottle or can, unless they were being apprehended for DWI.... The difinition does not indicate what a container is, it could be a box, can, bottle or cup, contents partially removed could be a can or two out of the box, an ounce or two out of a bottle/can... As for the AG opinion, I don't fall into one of the limited categories where I can request his opinion and I haven't seen one either.

the argument disproving the "6 pack container" has already been presented. the 6 pack ring CANNOT contain liquid. the "container" is the object that "contains" the alcoholic beverage. Just because the box or ring has been reduced in occupancy doesnt substantiate an "open container".

This is a fine mess Ollie. The lawmakers that wrote that wonderful piece of legislation probably thought someone would use some common sense when applying this and not turn it into the rabbit hole that it has become. I'm actually surprised that a judge has gone along with this.

I understand that you, AFCop, wouldn't charge someone with this unless it was something to add on to another crime, but it could be by someone else. This could be abused by another officer at one of the many no refusal DUI checkpoints. All that has to happen is for the officer to catch a glimpse of some bottle or cans that have fallen over on the floor in the back seat and someone gets a citation.

bci21984 wrote:the argument disproving the "6 pack container" has already been presented. the 6 pack ring CANNOT contain liquid. the "container" is the object that "contains" the alcoholic beverage. Just because the box or ring has been reduced in occupancy doesnt substantiate an "open container".

Where in the Penal code does this come from? Can you site case law that limits the law to liquid? In my opinion, I believe it was written as is to cover those who decide to open a case on their way around the state, drink and throw their can out the window immediately upon completion.

What is your response to that situation?

I have looked and can find nothing that limits the law to open bottles/cans or defines a container as one that holds an actual alcoholic liquid. I dont think my interpretation is that far out there, is it?

(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.

what part of the "box" contains the beverage? your interp would be valid if there were any liquid in the box, if the box is dry than it is not containing the beverage, it is containing the containers of the beverage.

My argument is that

other receptacle that contains any amount of alcoholic beverage

this covers those cups out there that contain a mixed drink

and

that is open, that has been opened, that has a broken seal, or the contents of which are partially removed

this covers the "other containers (i.e. box, plastic ring).

Now here is why.... It is understood that a beer bottle has to be opened and a can has to have a broken seal in order to gain access to the alcoholic beverage. Even if there is not one sip removed.. I am tracking on that without issue. However the law clearly says OR the contents of which are partially removed... How could one partially remove contents if the bottle/can is not open? In regards to the mixed drink, again, wouldn't know how much was in there to begin with but that's ok because we got them with the other receptacle AND that is open part, right? How could one partially remove any contents without opening a bottle or can, if its not meant to apply to the very concept of what I have been talking about? Which is open box with some of the beer cans missing.

Are you saying if I have a 12oz bottle or can that is unopened but doesn't hold 12oz I am guilty because of OR the contents of which are partially removed? It could have been a packaging error or dumb luck, however you want to get around the "that could never happen" argument.

Are you saying that if I pull someone over and they have an open 30 pack of bud light (cause that is what I drink) with 6 missing from the box and six empty, crushed cans on the floor board that that does not qualify as an open container because it does not, in its current state "contain any amount of alcoholic beverage", its bone dry, for argument sake....

I

If you're not drinking and driving, and truly only transporting the alcohol, then put it in the trunk.

It's pretty simple.

alexrex20 wrote:If you're not drinking and driving, and truly only transporting the alcohol, then put it in the trunk.

It's pretty simple.

Nothing like this is ever that simple, unless one wants to ignore reality , and find a simple solution that fits a short sighted opinion.

Life has many more twists and turns then to be fixed in a simple catch all clause or statement.

Many times I do not want to open my truck to place the days HEB purchase in. Or a follow on stop at some other store.. I have things in my trunk I would rather not show parking lot crawlers. That means two or more bags of stuff are going in my back seat,,, The way AFCOP has interpreted the law (Unlike I've ever seen it done so before) I can be charged when he finds my wine bottle "Container" only has 2 bottles, and not the four it might possible hold. Or the "container" provided to hold UP TO 6 bottles of beer, but I chose only 3, or 4, or 5 that day.. And Not that I drink beer from a can (ya Im a beer snob, get over it i have ) But with cardboard soda containers, I find they bust open on me about 2 / 10 times... if that was beer, a can would likely be lost in such an event, like I loose a soda can now an again in the parking lot. I would be charged by AFCOP for having an open "container".

An interesting issue, and one that will be brought up with the appropriate military authorities, as well as my representative for an AG ruling as I believe, AFCOP has interpreted a law, in a manner to which it was not anticipated, and even when done in good faith is a grievous mistake and one that should be corrected.

Even simpler: Don't do anything that will get you pulled over. ;)

bronco78 wrote:

alexrex20 wrote:If you're not drinking and driving, and truly only transporting the alcohol, then put it in the trunk.

It's pretty simple.

Nothing like this is ever that simple, unless one wants to ignore reality , and find a simple solution that fits a short sighted opinion.

Life has many more twists and turns then to be fixed in a simple catch all clause or statement.

Many times I do not want to open my truck to place the days HEB purchase in. Or a follow on stop at some other store.. I have things in my trunk I would rather not show parking lot crawlers. That means two or more bags of stuff are going in my back seat,,, The way AFCOP has interpreted the law (Unlike I've ever seen it done so before) I can be charged when he finds my wine bottle "Container" only has 2 bottles, and not the four it might possible hold. Or the "container" provided to hold UP TO 6 bottles of beer, but I chose only 3, or 4, or 5 that day.. And Not that I drink beer from a can (ya Im a beer snob, get over it i have ) But with cardboard soda containers, I find they bust open on me about 2 / 10 times... if that was beer, a can would likely be lost in such an event, like I loose a soda can now an again in the parking lot. I would be charged by AFCOP for having an open "container".

An interesting issue, and one that will be brought up with the appropriate military authorities, as well as my representative for an AG ruling as I believe, AFCOP has interpreted a law, in a manner to which it was not anticipated, and even when done in good faith is a grievous mistake and one that should be corrected.

I guess my first question is why would you purchase a container of 4 wine coolers with only two in it? Additionally, like I said, if that was the case, I am not an unreasonable person (regardless of what you think about my opinion on this subject) and don't go around looking for broken boxes, etc. I have on two seperate occasions successfully charged a DWI with the OC enhancement with an open case of beer. If I am interpreting it so incorrectly, how would one handle the situation as I described above? With the DWI, person drinking and driving but instead of using his car as a trash can he uses the side of the road, should he not me entitled to the enhancement?

I know unlike some LEO's, I would accept the reasoning of I left my house, going to friends house, havent been drinking but I plan on it when I get there.... Without question! Just I well as the box broke open and now they are rolling around on the floor.... Again, sobriety and OTHER factors would play a part in an actual charge. I even bought the Tx County and District Attorneys Assoc. DWI Investigation and prosecution for 2011. This is not something I take lightly and if I am wrong, I would gladly take the education. I like to think I am fair as I possibly can be.

AFCop wrote:

bronco78 wrote:

alexrex20 wrote:If you're not drinking and driving, and truly only transporting the alcohol, then put it in the trunk.

It's pretty simple.

Nothing like this is ever that simple, unless one wants to ignore reality , and find a simple solution that fits a short sighted opinion.

Life has many more twists and turns then to be fixed in a simple catch all clause or statement.

Many times I do not want to open my truck to place the days HEB purchase in. Or a follow on stop at some other store.. I have things in my trunk I would rather not show parking lot crawlers. That means two or more bags of stuff are going in my back seat,,, The way AFCOP has interpreted the law (Unlike I've ever seen it done so before) I can be charged when he finds my wine bottle "Container" only has 2 bottles, and not the four it might possible hold. Or the "container" provided to hold UP TO 6 bottles of beer, but I chose only 3, or 4, or 5 that day.. And Not that I drink beer from a can (ya Im a beer snob, get over it i have ) But with cardboard soda containers, I find they bust open on me about 2 / 10 times... if that was beer, a can would likely be lost in such an event, like I loose a soda can now an again in the parking lot. I would be charged by AFCOP for having an open "container".

An interesting issue, and one that will be brought up with the appropriate military authorities, as well as my representative for an AG ruling as I believe, AFCOP has interpreted a law, in a manner to which it was not anticipated, and even when done in good faith is a grievous mistake and one that should be corrected.

I guess my first question is why would you purchase a container of 4 wine coolers with only two in it? Additionally, like I said, if that was the case, I am not an unreasonable person (regardless of what you think about my opinion on this subject) and don't go around looking for broken boxes, etc. I have on two seperate occasions successfully charged a DWI with the OC enhancement with an open case of beer. If I am interpreting it so incorrectly, how would one handle the situation as I described above? With the DWI, person drinking and driving but instead of using his car as a trash can he uses the side of the road, should he not me entitled to the enhancement?

I know unlike some LEO's, I would accept the reasoning of I left my house, going to friends house, havent been drinking but I plan on it when I get there.... Without question! Just I well as the box broke open and now they are rolling around on the floor.... Again, sobriety and OTHER factors would play a part in an actual charge. I even bought the Tx County and District Attorneys Assoc. DWI Investigation and prosecution for 2011. This is not something I take lightly and if I am wrong, I would gladly take the education. I like to think I am fair as I possibly can be.

I never said wine coolers, if that's what you read.. Please Try again.. This is a good discussion, I would like to hope what i have written is what is being read....

So to restate the obvious. Wine, comes in bottles (and boxes for some but thats a different post). Many shops that sell wine provide a carrier, or "Container " in AFCOPS opinion. The buyer can use that carrier to move the wine bottles from store to home...some places have a discount of x % if you fill the container.. Others not. The point is, there is no requirement to fill the container.. You may walk out with a 4 place carrier and only 1, 2, 3 bottles of wine.. or a two place carrier with only 1 bottle of wine.

Not to mention the scenario I set of for those who buy beer in flimsy cardboard carriers (what you call containers)

The endstate is, I believe the law was not intended to provide a LEO the ability to charge "open container" type violations when a transportation over package has been opened.
I will very soon attempt to get both AF military legal opinion and TX AG's opinion on the matter.. as my opinion means little. I already have the a senior Army PMO and SJA military legal opinion, ... and lets just say, it differs from AFCOP. It will be interesting to see what the AF SJA opinion and TX AG if I can get it, will be.

AFCOP. I sense no malice on your part.. none, zip. and .I do sense a degree of common sense and fairness Never the less I disagree with your take on the law. I am in a position to get it clarified for the Military at least, and possible the state as well.. Thats not in any way meant to imply wrong doing on your part. And it may come to pass, I'm wrong, and the law supports your position, more then mine. I'm ok with that as well... I'll still be of a mind that it's wrong and overzealous in the policing of citizens.. but that too is another thread.