Nope
from post #30 (DSYoungEsq)
In other words, sitting behind the wheel with the keys in the ignition may qualify as being “in actual physical control” of a vehicle even though the vehicle is not moving.
Nope
from post #30 (DSYoungEsq)
In other words, sitting behind the wheel with the keys in the ignition may qualify as being “in actual physical control” of a vehicle even though the vehicle is not moving.
Having been briefed only a little on probable cause when I took a couple of criminal justice classes a few years ago, I again simply don’t see how this is the case. I also am not sure if the two of us are arguing based on our own personal opinions about what probable cause should be, or whether we’re talking about precedent here. I, for one, have not a whiff of evidence supporting my case, but it intuitively feels right to me that if I were a cop, and I pulled someone over and saw that the passenger was nursing a cold one, I’d be mighty suspicious of the driver and most judges and juries would feel me justified in administering the sobriety test. If it is true that police couldn’t rely on an open container as probable cause before the open container laws, though, I’ll quickly withdraw my claim.
It’s related to other laws about alcohol, because alcohol is a hot-button item with “sinful” roots. Many laws might not be passed today if they were subject to serious scrutiny, but no politician is going to come forward and say, “Let’s make these laws sensible,” because he will be crucified by the bluenoses, some of which think alcohol should be banned entirely, but are willing to make a few exceptions as long as you play by their rules.
An example: in my state, it is illegal to sell wine or liquor from 9PM to 6AM, although you can still get drunk in a bar until 2AM (and many people do – Wisconsin is known for having a bar on every corner). But you can’t shop for a nightcap or a nice wine for a late dinner. No provision is made for those whose daily schedules might not match the majority of 9-5ers.
If I bought a fifth of tequila at 10PM, is it any more likely that I will open in on the way home than 5PM? The law thinks so.
Seems to me that, the Puritan ideal being alive to some extent, liquor laws get more ridiculous as you go further Northeast. Am I on the money here?
I don’t know about that. I’m pretty sure most of the “dry” counties are in the south. I was seriously suprised to find how permissive the Missouri laws were.
Missouri used to prohibit liquor sales on Sunday. Is that still the case?
It is not the case anymore. I’m not sure, but I think I might be able to buy hard liquor at a gas station (yes they sell it at gas stations) any time of day.
Oh get real. :rolleyes:
What part of “actual physical control” did you misconstrue while lying in your bed?
DSYoungEsq, can you weigh in as to whether an open container would be probable cause in a jurisdiction where it’s not specifically illegal?
Presumably true, though with the way California worded the code section, not completely certain. Montana’s wording is much more helpful in this regard. California says, “some other area of the vehicle that is not normally occupied by the driver or passengers.” Now, in the hatchback case, as an example, the passengers normally don’t occupy the relatively flat area behind the seats that subs for a trunk, but that area isn’t really set off from the area that the passengers DO occupy (other than by the seats), so is it a separate area? Or just part of the passenger compartment? It’s open to interpretation, which isn’t always helpful.
When I lived in California, and had a hatchback (true for quite a long time), I would put an open container under the lift-up flap that led to the spare tire. I figured THAT was hardly an area occupied normally by passengers (other than my brother-in-law ).
Not to mention Kansas…
As another example of bluenose ideals being written in law, California once prohibited female bartenders unless they were also bar owners. Pretty stupid, since when I first went to California, I had enjoyed female bartenders in other states, who, not surprisingly, often helped increase bar sales merely by their presence. And their costumes didn’t hurt sales, either.
I believe the Cal law was changed, but I’m not sure and I don’t feel like looking it up, since someone else will probably do it for me.
Probable cause of/for what? Look folks, the open container isn’t seen until the officer already has you stopped. To do that, the officer already had probable cause sufficient to engage you in at least a Terry-type stop, to decide if you really were violating the law. All seeing an open container would do is indicate you had an open container of alchohol in your car. If that container is a beer bottle with its top off stuck between your legs as the driver, yeah, that’s going to help the officer in trying to decide whether to give you a field sobriety test. But you already are on the side of the road, so I’m not sure exactly what the open container is supposed to be doing in a probable cause calculation…
It was. I know female bartenders, although I won’t have gone to an American bar, myself, until a couple of hours from now. I’ll be back tomorrow morning with a full report, which will of course be legally accurate and scientific in nature.
I was also under the impression that the police needed probable cause to ask to conduct a warrantless search. Was I mistaken?
I know from actual experience that you do not have to be pulled over for an officer to see an open container in your vehicle. In my case, it was a Dr. Pepper being consumed by my buddy rather than a beer, but seeing him take a swig of it is the reason the officer gave for pulling us over. Note: at the time, open containers were legal in Texas, but not if you were obviously high school age.
I Know a few people who have been drinking as they have gotten test in a booze bus while drink driving.
They have told the copper that they had just finished a drink about 5min previous just befor they got in the car. But they have blown an extremely high bac on the breathalyser. So the cops have made them just wait 15min on the side of the road and get tested again. The theory is the alcohol was still in there mouth cause they had just had a drink and that waiting 15min and having some water will give a correct answer.
If the point of pulling you over is to identify if you are driving under the influence, a search is not needed. If you are arrested for DUI, then a search without warrant becomes allowed for that fact alone.
Seeing an open container can result in a warrantless search, but so what? That’s not the reason for open container laws, to give police valid reason to search automobiles.
If an officer saw your buddy drinking from a can, was not able to identify that it was an alchoholic beverage, and used that as reason for a Terry stop, that officer was in violation of your constitutional rights against unreasonable search and seizure, regardless of the existence of an open container law or not.
If an officer saw you drinking from an open beer can/bottle, and knew it was a beer can/bottle, he can pull you over simply for violation of the law against drinking WHILE driving (in California, I think it’s section 23222(?) of the Vehicle Code).
But again, the point is that the “open container” itself isn’t being used to give the officer probable cause to do anything that he couldn’t do without seeing the container.
:smack: I meant to say sobriety test–forgive me, in these kinds of conversations I’m usually talking about drug law–but I’m starting to see that it doesn’t make much difference at that point, as you say.
A similar statute in Michigan was upheld by the U.S. Supreme Court in 1948 (Goesaert v. Cleary), but that decision was explicitly disapproved by the Court in 1976 (Craig v. Boren).