An office wrote me a DWI with open container this is all one charge-Not a separate

[spiderjason]

What is the name of your state (only U.S. law)? Texas

An office wrote me a DWI with open container... I was on a motorcycle with a full face helmet on... The bottle of alcohol was a 22 oz bottle of beer and the bottle was clear... ALso, the bottle was in a brown paper bag then it was placed inside a plastic bag... The plastic bag was tied to my handlebars where the bottle was sideways... There was no way I could be drinking and driving down the road with a full face helmet on and on a motorcycle... On top of that the bag was tied to my handlebars where I couldn't get to the bottle... The cop then took the bottle and bag off the handle bars... Then showed the bottle of beer to the camera on the cop car... Then opens the bottle of beer in front of the camera and pours the beer out... Im sure he wrote DWI with open container to try and make the case stronger... My question is since he wrote DWI with open container and anyone can clearly see that it wasn't a open container can this case be dropped because it clearly shows the cop is lying and providing untrue information to try and make the case stronger? ALso this happened in Texas.

My main question is this... There wasn't an open container charge... My DWI charge said DWI with open container... It is only one charge.... The main thing I am wondering is this... Since he wrote something Untrue by saying there is an open container when the camera on the cop car will clearly show that the bottle was full... In your opinion is this something that is strong for my case when I fight it? I know you can't by any means tell me if my case will be dismissed because of this... So Im not asking that... I'm just asking if the camera shows the bottle was full and the cop put untrue information is this something strong for my side of the case... In my opinion and Im not a lawyer this shows that the cop was lying and putting untrue information and that should be against some kind of police policy...

 

[Mass_Shyster]

You can certainly argue at trial that the officer's testimony isn't credible due to this action.

 

[Just Blue]

http://www.thelaw.com/forums/showthread.php?t=51347

 

[CavemanLawyer]

Open container can be an offense unto itself (Penal Code 49.031) but it is only a class C offense. But if you are arrested for DWI and also have an open container then it is not charged as a separate offense, it is charged as an enhancement to the DWI offense. The effect is that it makes the minimum term of confinement six days in jail whereas the minimum would otherwise be 72 hrs. (Penal code 49.04.) In either case you can still get probation.

The definition of an open container is simply that it has been opened at some point in time, has had some of the contents removed, or that the seal is broken. Possession of it simply requires that it be in an area where you could exercise control over it. Just having it in the passenger compartment of a vehicle is enough for possession, so having it hanging from your handlebars on a motorcycle is definitely enough. There is absolutely no requirement that you physically be drinking it while driving/riding. So had the seal been broken on this bottle? If so I do not see any discrepancy in what the officer did/reported and the actual facts.

If the seal was still intact then you certainly have a defense to the open container enhancement but this does not invalidate the underlying DWI automatically. At best it is an area for cross examination to attack the officer's general credibility.

Sec. 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.

(b) Except as provided by Subsections (c) and (d) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.