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Open Container Violations: A Lawyer's Guide

Updated on December 21, 2014

Caught Drinking in Public?

A Likely Open Container Violation
A Likely Open Container Violation

What is an Open Container Ticket?

Under the laws of most states, including New York, it is illegal to carry an open alcoholic beverage in public. Frequently confused with public intoxication, an open container violation does not require you to be drunk or even to be drinking. In many states, the law presumes that if you have an open container of alcohol, you are drinking from it, and the burden is on you to prove otherwise.

In some states, an open container violation is a misdemeanor and in other states it is a violation. The primary difference between a violation and a misdemeanor is that a misdemeanor is a crime and if convicted, you may have difficulty obtaining federal student loans, getting a job, or becoming a United States citizen (if not already naturalized). However, a violation is not without repercussions. In New York, an open container violation is punishable by a fine not greater than $25 but also up to fifteen days in jail!

The good news is that while the police take these "quality of life" crimes and violations seriously, many judges are keenly aware of the fact that people -- particularly young people -- often make mistakes, and shouldn't have to pay for those mistakes for the rest of their lives over such a minor infraction.

Before Court: Open Container Guidelines

The good news is that if you are charged with violating the Open Container of Alcohol statute (10-125 (b)) of the Administrative Code, the judges in New York City will usually limit the punishment to the aforementioned $25 fine. The bad news -- especially for college students and visitors from out of town -- is that your appearance in court is mandatory if you fail to return the summons with payment within ten (10) days of receiving it. If you fail to either send in payment within the required time period or show up in court, a bench warrant will be issued by the judge for your arrest. Even though the open container charge is minor and would not affect immigration or international travel, the bench warrant is not! An outstanding bench warrant can be grounds to detain international passengers at airport detention facilities in the United States and to deny immigration authorization to foreigners seeking to enter the U.S.

Which Court Do I Go To?

99% of all Brooklyn and Manhattan Open Container cases are handled at 346 Broadway in lower Manhattan. The entrance to this court is on Leonard Street and you will need to go to the upper lobby (up the stairs). There are only two courtrooms -- one for Manhattan cases and the other for Brooklyn cases.

Queens and Bronx cases of this type are handled at the summons parts in the criminal courts of those respective counties.

Fighting the Open Container Ticket

Ok, so you decided not to send in payment. What now?

First, you need to know that on the back side of the original summons is a space for the police officer to indicate the exact nature of the container you were in possession of. This space is on the back of the original -- NOT your pink copy -- and you won't have an opportunity to inspect it until you get to the court.

Second, even though the law requires the police officer to indicate with specificity the type of alcoholic container used in violation of the law, some judges (judicial hearing officers) do not require this information. In any event, the key items to look for are the following:

  1. The type of container (i.e. can or bottle or cup)
  2. The size of the container (i.e. 12 oz, 1l, one gallon)
  3. The brand of the container (i.e. Coors Light, Budweiser, Corona)

The failure by the police officer to indicate any of the above three elements is grounds for a dismissal in most criminal courts and summons parts!

Furthermore, the summons must indicate that the defendant was in possession of the container AND that it was OPEN. It is not against the law to carry a closed container of alcohol on the streets of New York City!

Hiring a Lawyer

For most defendants, hiring a lawyer for your Open Container of Alcohol violation is unnecessary because of the fact that it's only a $25 fine and it's just a violation. However, for those who wish to attempt to keep their record clean (and avoid having to answer YES to job questions about having pled guilty to anything), hiring a lawyer may be a wise investment -- especially for students with their careers ahead of them. If you would like to speak with a NYC Open Container lawyer for a free consultation to discuss your options, please click here.

About the Author

Author and criminal defense lawyer Jason Stern has been handling criminal cases in New York City since 1995. He has been quoted or featured in the New York Times, Wall Street Journal, Fox News, ABC, Good Morning America and dozens of other media outlets. He still finds time to provide free telephone consultations for all HubPages readers.


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