For just a moment there, I thought Wildest Bill was back with us. Gotcha ya!
FWIW, this looks like a poorly drafted statute. I’m going to quote the section that gives me pause. It’ll be a bit long, sorry. FTS:
As I read this, and again, I’m not a lawyer, you have to satisfy clause 1 AND either 2a, 2b, or 3. Which strikes me as poor; 3 should be renumbered to 2c. Explicitly writing the AND between 1 and the 2s would help too.
The point is, and I’d like a real lawyer to tell me if I’m off-base or not, you can’t carry an alcoholic beverage in your car, unless you meet the following exception. It must be sealed AND it must be in the trunk/last upright seat/you’re on a bus. So having half the bottle of wine, recorking it, and putting it in the trunk, would still be a violation of the open container law. Similarly, having a sealed bottle in the passenger area is a violation. Am I off base with this reading?
Or does it mean that unopened is fine, but if it’s opened at any point, then it must be in the trunk? An OR between the end of 1 and the start of 2 would help immensely. Remember, the statute is stating off the top that carrying booze in your vehicle is illegal, and then it states an acceptable exception to that general rule. We want OR statements to broaden the range of acceptable behavior. Assuming of course, that’s what the Kansas Leg. wanted to do.
I don’t know if a totally empty can meets the definition for alcoholic beverage/cereal malt beverage either. And I have no idea how clause (h) comes into play.
In short, the statute gives me more questions than answers. Really curious what the Doper lawyers think is the proper interpretation.
Wildest Bill was a lot of fun
If you purchased an empty can for a collection, you would have a really good argument that you weren’t transporting an alcoholic beverage. The can was empty when you purchased it, empty when you put it in your car. What you are transporting is an empty container, no beverage here.
Well, if the guy is to be believed, apparently you can, in Kansas.
Do open container laws in various states typically specify explicitly that the open container is one that contains, or contained, an alcoholic beverage? I think I’ve read that this isn’t so – because you could have an open water bottle, or an open lemonade bottle, and they lawmakers didn’t want to burden the cops with having to figure out if an open bottle was alcoholic or not.
But I’m also wondering – do these laws specify an open beverage container? Or just “open container”. If I have an opened box of Kleenex tissues sitting on the passenger seat, that’s an open container, n’est-ce pas? Could I get a DUI for that, according to the literal interpretation of the law as written, if a cop wanted to be a real jerk?
IANAL, but I feel pretty confident that you could beat a charge of having an open container of Kleenex tissues in your car.
Also, DUI and open container are two different things. Since you can’t get intoxicated from consuming tissues, AFAIK, you couldn’t get charged with DUI.
The way my wife (a lawyer) interprets the Texas equivalent is that basically if the container’s not opened (factory sealed), then it can be anywhere.
If it’s been opened, it has to basically be as far from the driver as reasonably possible. In other words, if your car has a trunk, it needs to be in the trunk. If your pickup has no truck, but has a back seat, it needs to be there. I suppose that if your vehicle has neither a trunk nor a back seat, then it’s permissible for it to be in the driver’s side floorboards, but don’t take that as gospel.
Besides, beer can collectors do not open them at the top. They make a small hole (or two) on the bottom and empty them that way.
That was my thought too, Bump, before I tried to parse the statute. I mean, a sealed container is hardly “open.” I easily could be misreading the thing, and I don’t think it’s applicable in the OP’s case: the empty cans are no longer “beverages” per the statute. (Though definitely double-check that—alcohol law can be really screwy)
I was more curious about the general case of what constituted an open container in KS. You wouldn’t think that, for example, a closed and sealed six-pack, sitting in the back seat in a grocery bag, would count as an open container. But the way I was reading the statute, it does. It’s probably the case that the Leg didn’t put an OR after clause (b)1, and are assuming that one should be read into the statute. I’m going to see if I can find some case law one way or the other.
You can’t have one within reach of the driver, which pretty much says not in the passenger compartment.
Found two things, (and then I’m going to have to get back to work.)
First is this blurb from the blog Kansas Defenders, referencing the unpublished Kansas Court of Appeals case from 2012, State v. Driskell, No. 105126. FTA:
The open container violation provided cause for the officers to search the vehicle, wherein they found whatever it was that prompted the felony conviction that the defendant was appealing. No open container, no cause to search, and the evidence of the other stuff gets excluded.
I think you can infer two things from this: 1, Sealed containers of alcohol are o.k. in the passenger compartment. 2, KS courts can be extreme about what they consider a broken seal. A cardboard box with beer in it—like a case of beer, I’m guessing—and its top opened constituted an open container of alcohol for the arresting officers. I find it incredible that this appeal of a conviction had to go all the way up to their Court of Appeals to be overturn.
The second case is a dissenting opinion from a denied appeal in 2011 to the COA, State v. Stevenson, No. 104115. At page 14 of the opinion is the following language:
So, it looks like you can read an OR at the end of the clause, and Kansas’s laws aren’t as Draconian as I first feared. But watch out for any open packaging.
Hmm… a Zombie IS an alcoholoc drink…
Y’know, legislatures in general are not really as bag-of-rocks stupid as people like to joke about, and penal statutes in particular are usually drafted by the committee legal staff, who know (or ought to know) better. A law that mandated your arrest for having a water bottle or a to-go latte in the cup holder regardless of what it actually contained would get laughed out of court by the first judge who faced it.
Now, if the patrolman has reasonable suspicion that something funny’s up he might ask the driver, what you got in that Thermos flask? And then it becomes a matter of the driver figuring if he wants to get into the intricacies of aquiescing to a voluntary search and the cop figuring if he can whip up a good justification for performing a nonvoluntary search.
As noted in the examples, the “open container” name is just common shorthand, the actual statutes specifically define that they refer to transportation and possession of alcoholic beverages in the specific instance of transporting or possessing in a motor vehicle.
e.g. **Oklahoma: **
“A. No person shall:
[…]
7. Knowingly transport in any vehicle upon a public highway, street or alley any alcoholic beverage except in the original container which shall not have been opened and the seal upon which shall not have been broken and from which the original cap or cork shall not have been removed, unless the opened container be in the rear trunk or rear compartment, which shall include the spare tire compartment in a vehicle commonly known as a station wagon and panel truck, or any outside compartment which is not accessible to the driver or any other person in the vehicle while it is in motion”
**
Texas:**
" (a) In this section:
(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.
(2) “Passenger area of a motor vehicle” means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:
(A) a glove compartment or similar storage container that is locked;
(B) the trunk of a vehicle; or
(C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.
(3) “Public highway” means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.
(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.
(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:
(1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or
(2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle."
**Florida: **
" Possession of open containers of alcoholic beverages in vehicles prohibited; penalties.—
(1) As used in this section, the term:
(a) “Open container” means any container of alcoholic beverage which is immediately capable of being consumed from, or the seal of which has been broken.
(b) “Road” means a way open to travel by the public, including, but not limited to, a street, highway, or alley. The term includes associated sidewalks, the roadbed, the right-of-way, and all culverts, drains, sluices, ditches, water storage areas, embankments, slopes, retaining walls, bridges, tunnels, and viaducts necessary for the maintenance of travel and all ferries used in connection therewith.
(2)(a) It is unlawful and punishable as provided in this section for any person to possess an open container of an alcoholic beverage or consume an alcoholic beverage while operating a vehicle in the state or while a passenger in or on a vehicle being operated in the state.
(b) It is unlawful and punishable as provided in this section for any person to possess an open container of an alcoholic beverage or consume an alcoholic beverage while seated in or on a motor vehicle that is parked or stopped within a road as defined in this section. Notwithstanding the prohibition contained in this section, passengers in vehicles designed, maintained, and used primarily for the transportation of persons for compensation and in motor homes are exempt.
(3) An open container shall be considered to be in the possession of the operator of a vehicle if the container is not in the possession of a passenger and is not located in a locked glove compartment, locked trunk, or other locked nonpassenger area of the vehicle.
(4) An open container shall be considered to be in the possession of a passenger of a vehicle if the container is in the physical control of the passenger."
**California: **
" (a) No driver shall have in his or her possession, while in a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle, containing any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed.
(b) No passenger shall have in his or her possession, while in a motor vehicle upon a highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle containing any alcoholic beverage that has been opened or a seal broken, or the contents of which have been partially removed."
May I also point out the several statutes that indicate that “for the purposes of this section”* open container means yadda, yadda…* – it stands to reason that it does not mean that for all other circumstances “container” loses its usual everyday meaning, but they’re trying to avoid having to repeat the entire megillah in every subheading and stay a step ahead of the smart alecks.
Thank you for this, JRDelirious. Ignorance fought. I had been specifically under the impression that laws sometimes didn’t explicitly mention “alcoholic” because they didn’t want cops to have to do a roadside chemical analysis to figure out if some liquid was alcoholic. But, if that were the case, I was wondering if the laws at least explicitly mentioned that they covered containers of liquid, or if the laws might have been carelessly written to not even mention that. (Yes, one does hear of carelessly worded laws from time to time.) I am especially interested in the law in California, since I seem to spend my time there.
Once, while on a cross-country trip, I noticed “No Littering” signs at some rest stops (in Nevada or Utah, IIRC), that explicitly mentioned that it was illegal even to pour water out onto the ground or landscaped areas. I assumed this was because they didn’t want cops to have to figure out what the liquid was, that they saw somebody pouring.
What in the world is “anal alcohol”? I understand each of those words individually, but not combined like that.
I can only add another anecdote to the pile, but a Kansas state trooper once told me exactly that, using the very example you quoted. He said an open cardboard box is a container, and if that box contains unopened cans or bottles of alcohol he is legally justified in citing it as an open container of alcohol under state law.
This was around 20 years ago, well before the 2012 decision you cited, but given my experience and what **jtur88 **reported earlier, I’m beginning to think this is something that Kansas LEOs are taught in academy or something.
Glad to hear the court finally shot this one down.
You won’t believe it unless you google it for yourself.
As for the case- yeah, in this state, 11 beers in an open 12 pack is an open container.
But 11 loose beers, sealed, is not.
And what about Mexican fat burners? Have there been new developments?
Yep – and referring to that California statute, in some other section of the code there must be a definition of what constitutes “possession”, probably in this case a general provision that can refer to not just drinks but any outlawed item, as opposed to the other states’ versions where it’s explicitly detailed for the case of the alcohol containers.
BTW looking at the wording, it seems to allow for transport of a completely empty DRY collector’s bottle/can but a police officer could say that if there is still a trickle of content along the bottom that means it’s only “partly” emptied and the rule applies.
Legislatures do periodically pass laws with huge gaping holes or self-contradictory language, often the result of some legiscritter deciding they’re going to propose an amendment to do Something Really Righteous and not thinking it all the way through because “hey, it’s a no-brainer”. The legal staff tends to tear their hair out at these situations because they usually could see exactly what was no-brained about it, but hey, that’s Assemblyman Schwanzblaser of East Podunk, he’s Assistant Majority Whip, second-seniormost member, and chair of the Wingnut Caucus, and he’s getting his damn amendment passed or else nobody’s county gets School Bus funds this year.
Yeah, I was really startled to see a Wildest Bill thread on the top of the “New Posts” list. Really took me back…