Bay Area DUI Checkpoints (Halloween - 2015)
Open alcohol containers in cars can mean trouble with the law.
As legislators have made clear, alcohol and motor vehicles aren’t a good mix. But state governments don’t confine their laws to drunk driving. They also prohibit other kinds of behavior involving cars and booze, like having an open alcohol container or drinking from it in a vehicle.
Open Container on the Driver’s Person
A driver having an open container is the most common alcohol-related offense where the charge isn’t DUI/DWI.
Elements of an Open-Container Violation
The elements of an open-container violation are commonly as follows:
- You drove a motor vehicle.
- You drove on any public road. (Private roads or parking lots don’t count.)
- You kept a container, such as a bottle, can, or glass, on your person, which means you held it in your hand, kept it within your reach, or kept it in a pocket or purse.
- The container held any amount of an alcoholic beverage when the officer found it, although simply the odor of an alcoholic beverage isn’t enough.
- The seal, if any, on the bottle was broken, or the container’s contents were “partially removed.”
You can bet that a police officer will administer an alcohol test on a driver caught with an open container on his or her person; the officer will likely administer the test if he finds an open container anywhere in the passenger area.
In most states, you’ll likely be charged with the most serious offense possible. If the officer rules out DUI/DWI, an open-container violation is another way to cite you, albeit for a less serious offense. (You could be charged with both DUI and an open-container violation.)
Proving a Violation
The offense of having an open container on one’s person requires that the ticketing officer connect the open container to the person cited. The container must typically be within the control of the driver or within the driver’s reach. But, even if there are open containers in the vehicle that aren’t close to the driver or any other passenger, the police may cite the driver for a related offense: keeping an open container in the vehicle. (It’s normally a lesser violation than having the container on one’s person.)
Open Container in the Vehicle
Many states forbid driving with an open container of an alcoholic beverage in a vehicle. (In a few states, it’s legal for a passenger to drink an alcoholic beverage while the vehicle is in motion.) Although having an open container in the vehicle is a less serious offense than drinking from one, a conviction can still seriously affect your license status or insurance. (See below for the law on drivers and passengers drinking in moving cars.)
Elements of an Open-Container-Kept-in-Vehicle Violation
Common elements of this offense include the following:
- You were a driver or registered owner of a vehicle.
- You were in the vehicle.
- The vehicle was on a public road.
- There was a container, such as a bottle, can, or glass somewhere in the vehicle other than the trunk. (For vehicles without trunks, such as pickups and hatchbacks, it’s okay if the container is in some area of the vehicle not normally occupied by the driver or passengers, but not in the glove compartment.)
- The container held some amount of an alcoholic beverage when the officer found it.
- The seal, if any, on the container was broken, or its contents were “partially removed.”
(There may be an exception where the container is located within a certain area of a motor home or camper.)
When a passenger has an open container in the vehicle, both the passenger and the driver can be cited: the passenger for having or drinking from an open container, and the driver for allowing an open container in the vehicle. About the only valid defense for the driver is that he or she had no reason to know the passenger had the open container.
Example: You, the driver, and your friends are on the way to the beach with a few unopened six-packs of beer. Unbeknownst to you, one of your friends in the back seat can’t wait and quietly opens a can of beer before you get there. When an officer pulls you over for an expired registration, he notices the open beer can in the back and tickets you. Your defense is that you didn’t have any reason to know your passenger made that stupid move.
Drinking in the Vehicle
Every state (except Mississippi) forbids drivers—and most states forbid passengers—from drinking any alcoholic beverage in a moving motor vehicle. (Even in Mississippi, many cities and counties have their own laws on the possession of alcoholic beverages.) (Miss. Code Ann. § 63-11-30; also see Mo. Rev. Stat. §577.017, Tenn. Code Ann. §55-10-416, VA Code Ann. § 18.2-323.1.)
To be convicted of drinking in a vehicle, the police don’t need to prove you were drunk. And, in at least some states, it isn't necessary that the officer actually see you raise the bottle or can to your mouth and drink from it. Further, even if you evade that charge, you may still be convicted, in most states, of an open-container violation.
Drunk driving is known as driving under the influence (DUI) in some states and driving while intoxicated (DWI) in other states. Still others use the term operating under the influence (OUI). Such crimes are considered to be among the most serious of driving offenses -- not surprisingly, as they cause over one third of all traffic fatalities. DUIs and DWIs also tend to carry heavy penalties, and the trends are toward even tougher legislation.
There are essentially three types of drunk driving laws.
- Driving under the influence. Every one of the 50 U.S. states makes DUI or DWI a crime. DWI, and DUI are usually defined as driving while impaired by alcohol or other legal or illegal substances.
- BAC of 0.08% or higher. In all states it is also a crime to drive with a blood alcohol concentration (BAC) of 0.08% or higher, regardless of whether one's driving was actually impaired or affected.
- Felony DUI. Certain types of DUIs can be charged as a felony, a serious crime that usually results in a prison sentence.
What "Driving Under the Influence" Means
A DUI law may prohibit driving under the influence of an alcoholic beverage, driving under the influence of a drug, and driving under the combined influence of an alcoholic beverage and any drug (legal or illegal), regardless of blood-alcohol level.
To prove a person is guilty of the offense of driving under the influence, the following elements must be proven:
- The person drove a vehicle -- that is, steered and controlled it while it was moving.
- At the same time, the person was "under the influence" in that his or her ability to drive safely was affected to an appreciable degree by having drunk an alcoholic beverage, taken a drug, or combined alcohol and drugs. (Note that some people's driving can be impaired after having consumed even a relatively small amount of drugs or alcohol.)
Given these elements, a DUI defendant could argue that a fellow passenger was actually driving but forced the person to switch seats before the police officer arrived at the car. Another argument would be that although the defendant had been drinking that day, the alcohol either hadn't yet entered or had already left the bloodstream during the time the defendant was driving.
What "Driving While Blood Alcohol Is 0.08% or Higher" Means
In every state, a person with a blood-alcohol level (BAC) of 0.08% or higher is presumed to be under the influence of alcohol. Many states have taken this one step further and flatly prohibit anyone from driving with this much alcohol in their blood, whether or not driving is impaired.
To prove a person is guilty of the offense of driving with a BAC of 0.08%, the following elements must be proven:
- The person drove a vehicle, and
- Alcohol was present in the driver's blood at a concentration of 0.08% or greater while driving. (Some states set the limit even lower for underage drivers.)
In states with this type of law, during a trial the jury will usually be given a choice of finding a defendant guilty of driving under the influence and/or driving with a BAC of 0.08% or higher. So, even if the defendant and witnesses could convince a jury that the driver was doing an outstanding job, driving in a manner as cautious and conservative as someone who had nothing to drink, the jury can still find the person guilty if it believes his or her blood alcohol level was 0.08% or more while driving. The penalty in most cases is the same whether the defendant is convicted of one or the other, or both.
What a Felony DUI or DWI Means
Although some DUIs (first offenses, for example) are usually treated as misdemeanors, under certain circumstances the crime can be bumped up to a felony, which is far more serious.
If a driver kills or injures someone as the result of driving while under the influence of alcohol (or having a blood alcohol level higher than 0.08% or more in those states that punish this separately), the person can be found guilty of a felony and could go to state prison for years. Prior convictions for misdemeanor under-the-influence or over-0.08% will usually result in a longer prison sentence.
In some states, a third or fourth DUI or DWI is by itself enough to get a driver charged with a felony. It won't matter whether anyone was killed or injured as a result.
Anyone accused of a felony DUI or DWI should contact a lawyer experienced with handling DUIs or DWIs; no one should ever attempt to handle a felony charge without a lawyer. For more information on dealing with misdemeanor DUI and DWI charges, see Nolo's article Dealing with a DUI or DWI Charge. See Nolo's Lawyer Directory, which provides comprehensive attorney profiles and information to help you select the right attorney. For a reference that will give you the basic information you will need to understand your options when facing a DUI or DWI charge, and to help you deal intelligently with your lawyer, read Beat Your Ticket, by David Brown (Nolo).
While Memorial Day Weekend has been traditionally been known for having barbecues and opening swimming pools, it is also becoming synonymous with law enforcement cracking down on DUI.
As with any criminal charge, a person charged with driving while intoxicated (DWI) or driving under the influence (DUI) is presumed innocent until proven guilty. If guilt is established (often through the defendant's own plea or after a jury trial), the penalty will depend on state law, as well as on any aggravating circumstances (such as the presence of an open bottle of liquor in the car) and the defendant's cooperation with the police.
If you choose to fight your DUI or DWI charge in court, learn the criminal trial process.
Using an Expert Witness
Almost all DUI trials involve scientific measurements that require the prosecution to use an expert witness. An expert witness is somebody who has expertise in a particular subject that is not usually shared by the general public. In the case of a DUI prosecution, law enforcement officers tasked with enforcing DUI laws usually have received training in a variety of areas and can qualify as experts in those areas. However, there are few if any law enforcement officers who are qualified to testify about how the machines arrive at a .08 blood alcohol content and the effect (scientifically speaking) that alcohol at any level can have on your physical and mental faculties. If the trial involves marijuana, methamphetamine, or other drugs, the need for an expert witness is even greater. Of course this is the prosecution's burden, but if you hope to cast any substantial doubt on what one of these expert witnesses has to say, you'll have to have your own expert. While it's tempting to get your own evidence in through clever cross-examination, even highly skilled and experienced attorneys bring their own expert rather than relying on cross-examination to establish their defense.
Expert witnesses don't come cheap (figure a minimum of $1,000), so right away, if you want to win a DUI trial involving a .08 measurement, or the presence of alcohol or drugs in a blood sample, you'll need to shell out a fair amount of money. Some states allow indigent people (whether they are representing themselves or are represented by a private attorney) to apply to the judge for permission to hire an expert at the state's expense, but be prepared for a hard sell, especially if the judge has little or no reason to think you can win your case.
At trial, regular witnesses who testify to one or more aspects of your defense are only helpful if they can convince a jury about facts that they directly observed and that would be helpful to your case. Opinions are not relevant (unless your witness also qualified as an expert in a particular area). Close relatives such as a wife, brother, or son and daughter may be as trustworthy as the day is long, but a jury is unlikely to give much credence to their testimony. The same is true for friends and co-workers. For witnesses to be credible, they must have little or no ties to you, yet be willing to testify on your behalf on the basis of their observations. These are hard to find in a DUI case. In reality, the defense in most DUI cases is limited to cross-examination of the prosecution's witnesses and direct testimony by the defense expert witness, who is usually a toxicologist who (at a steep cost of $1000 or more) can sometimes discredit the blood, breath, or urine test or bolster one or more other elements of the defense.
Motions to Suppress Evidence
If the police illegally arrested you or obtained any evidence against you in an illegal manner, you may be able to schedule a special pretrial hearing to suppress certain evidence. The prosecution is then prevented from using it at trial. For example, if you consented to give a blood sample only after the police beat you into submission, you may want to make a motion to suppress the test results which, if successful, would keep the test from being introduced into evidence at trial. A motion to suppress is heard several weeks (sometimes months) before the trial actually takes place. It is heard only before a judge, perhaps one who will not be presiding at your trial. This type of motion is fairly technical and complicated, and will probably involve cross-examining the officer who arrested you. Hire a lawyer to do this for you—do not to try to handle it yourself.
One common reason to pursue a motion to suppress would be if you believe that the officers had no probable cause to stop you and that the subsequent observations and tests should be kept out of evidence as "fruit of the poisonous tree." While this argument is legally tenable, it almost never pans out for one simple reason. To stop you, the officers only have to have probable cause that you violated any rule of the road, from driving with a broken taillight to not having your seatbelt on. They don't have to have any clue whatsoever that you were driving under the influence. Not surprisingly, it's a rare police report that doesn't contain some reason for stopping you.
Motions to "Strike a Prior"
A person who pleads guilty to or is convicted of a second or third offense of driving under the influence can suffer a far heavier penalty than a first offender. To obtain the heavier penalty, the prosecution must "charge" the prior conviction against you. When you initially plead "not guilty" to the offense, never admit any priors charged against you. Simply "deny" them. This is perfectly legal. If you "admit" them, you destroy any chance of challenging their validity on technical grounds. By having a prior conviction "stricken," you face a less-severe penalty if convicted on the current charge. The procedure to strike a prior is based on whether you were properly informed of or intelligently waived certain rights at any hearings related to the prior offenses. Again, this type of motion is extremely technical and will require a lawyer's help.
In most cases you will be the only possible witness to contradict the police version of events. You have a constitutional right to take the stand but also a constitutional right to not take the stand. When making this decision, the core question is, will the jury believe you? All they have to do is disbelieve one thing you say and you can usually kiss the rest of your testimony goodbye. If you have a criminal history, the prosecutor may be able to use it as a way to "impeach" your testimony in this case (especially if it's a felony). If your version of events contradicts that of two or more police officers, guess whom the jury will believe? If the police say that you misstated the amount you had drank when they first questioned you, the prosecution will hammer away at this as a lie. If you are prone to excitability or anger when questioned closely, pretty much any prosecutor will rattle you to the great detriment of your case. Yes, you have a right to take the stand, but it will be a daunting test of your composure and expressive skills, as well as a test of the viability of your story.
Educate yourself, even if you hire a lawyer. There are a wide variety of other strategies and approaches to handling a DUI trial that can't reasonably be detailed in this type of book, but a good DUI defense treatise, such as the one by Laurence Taylor mentioned earlier, can provide lots of additional help. Please understand that we are not recommending you handle your own DUI trial. Even if you are represented by a lawyer, however, the more you read about DUI and possible defenses the more you'll have to bring to the table.
Local law enforcement agencies will be out in force, utilizing sobriety checkpoints to deter drunk driving Tuesday night for New Year’s Eve. Police say to be prepared for DUI checkpoints.