Empty Bottle alcohol poss

[jj793]

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

krs 244.085(3)
krs 189.530(2)
krs 520.090

My friend and the local police don't get along. I don't like them much either. Me and my friend - both 20- were in a parking lot walking to my car. There was a cop car parked beside me and the cop happened to be walking behind us to his car. Soon enough my friend and the cop are bickering back and forth like an old married couple (which by the way the cop started up. my friend was trying to ignore the fact he was there). We got to the cars and the cop looks in the windows and he asks me what those bottles in the back are (behind driver/front passenger seat), we say nothing. He wanted to be let in the car I said no. He says he'll arrest us and he can see they're bourbon bottles anyway. My friend says to me we didn't park here and he starts walking away. Then the cop grabbed him and handcuffed him - talking about making things worse than they are. Next the cop calls for his friends to come to the scene of this outrageous crime. 2 more come because it's a small town and nothing happens here except for people cooking meth but they're too scary for the cops to deal with. Now I'm handcuffed too which I was cooperative over and the cops take the keys from me and open my car. I again said that I didn't give permission for a search. They take the bourbon bottles out and search the car. The bourbon bottles are bone dry - we don't waste that bourbon, they have been drained. We get arrested and bail out. I have those 3 charges, my friend has 2 - not the open container one.

Additional info - the cop already knew that was my car and already knew we are both 20.

I have some questions about this whole event.
1) Does the fact that the bottles were completely empty change anything? We didn't possess any "alcoholic beverages". We didn't possess a bottle with the contents "partially removed" - they were fully removed.
2) Does the fact that we were not in the car - and had made no attempt to get in the car, we had just stopped by it - change anything for possession or open container?
3) Don't you have to be operating a vehicle/be on the road with the open container charge?
4) Does the fact that I did not give permission for a search and they took the keys and helped themselves change anything?
5) 520.090 - is resisting arrest, I asked the arresting officer why this charge? I was told it was for obstructing/refusing to coopererate. When I look that up online it appears to be related to physically resisting arrest so can anyone tell me how this charge is relevant?
Is there another relevant obstruction charge that it might end up being changed to because I can't see one - except for 519.020 which I don't think is actually relevant either?
I thought I had the right to refuse a search? Am I required to cooperate with the requests the cop was making? Ultimately he got what he wanted with not a lot of difficulty - did I act illegally in not jumping to follow his requests?

Sorry it's long.

 

[OHRoadwarrior]

Ahhhhh, now you get to add a lawyer to you and your friends childish games. See, that is why he has the badge and gun and you and your friend have the citations.

1.Nope they do in fact say bourbon on them.
2.Are trying to argue someone else stole your car and parked it there?
3.Nope, read the statute.
4.Its that whole plain site thing. Gets those rednecks all the time.
5.Have your lawyer discuss it with the prosecutor.

 

[jj793]

Ohhhh we're the childish rednecks. Not the 30-something year old cop who couldn't stop himself from opening his big mouth.

2.Are trying to argue someone else stole your car and parked it there?

More that we just weren't in possession of anything at the time and didn't have access to anything while driving since I wasn't driving, and since there was no alcohol present anyway.

3.Nope, read the statute.

A person is guilty of possession of an open alcoholic beverage container in a motor vehicle, when he or she has in his or her possession an open alcoholic beverage container in the passenger area of a motor vehicle located on a public highway or on the right-of-way of a public highway.

For the purpose of this section, "public highway" or "right-of-way of a public highway" means the entire width between and immediately adjacent to the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.

That doesn't sound like the parking lot of a mall. The mall being a private business who don't get their parking lot publicly maintained...?

 

[davew128]

Ahhhhh, now you get to add a lawyer to you and your friends childish games. See, that is why he has the badge and gun and you and your friend have the citations.

1.Nope they do in fact say bourbon on them.

I'm sure they do. Devil's advocate: What if they were planning on taking them to be recycled and getting money? If the bottles are empty and there is no evidence OP drank it recently (think booze on breath), I think its a bad charge.

3.Nope, read the statute.

I recommend you do the same. Particularly (4). Partially removed contents are not the same as empty. Again, if I'm a minor and have my parent's empty bottles on the way to the recycling center, I don't have an opened container, I have an empty bottle.

 

[OHRoadwarrior]

Hence the reason I said OP now gets to pay a lawyer, who can likely do a much better job of handling the issue in court. I do love the idea of convincing the judge you were taking 2 bottles to the recycling center though. I go for option B, it evaporated.

I'm sure they do. Devil's advocate: What if they were planning on taking them to be recycled and getting money? If the bottles are empty and there is no evidence OP drank it recently (think booze on breath), I think its a bad charge.

I recommend you do the same. Particularly (4). Partially removed contents are not the same as empty. Again, if I'm a minor and have my parent's empty bottles on the way to the recycling center, I don't have an opened container, I have an empty bottle.

 

[jj793]

I do love the idea of convincing the judge you were taking 2 bottles to the recycling center though. I go for option B, it evaporated.

How'd you know it was 2 bottles? Who are you exactly??
Though admittedly it would be a little alcoholicy to have more than 2...
I think that I would go for recycling over evaporation because evaporation would suggest that I expected alcohol to be there....

But seriously - isn't the point of open container laws to do with driver/passenger access to ALCOHOL? If there's no alcohol present....who cares if there's an empty bottle in a car...

 

[davew128]

But seriously - isn't the point of open container laws to do with driver/passenger access to ALCOHOL? If there's no alcohol present....who cares if there's an empty bottle in a car...

Not arguing with you. I almost always have empty bottles and cans (non-alocholic) in my car because my SO is a packrat/obsessive recycler, so they tend to accumulate in the car before bringing them for redemption. From my perspective its not that far fetched for someone to have "empties" in their backseat. Again, if you weren't cited for consumption, I think you have a good defense.

 

[FlyingRon]

Not arguing with you. I almost always have empty bottles and cans (non-alocholic) in my car because my SO is a packrat/obsessive recycler, so they tend to accumulate in the car before bringing them for redemption. From my perspective its not that far fetched for someone to have "empties" in their backseat. Again, if you weren't cited for consumption, I think you have a good defense.

It is not far fetched but it is ILLEGAL none the less. If you're going to transport unsealed alcohol containers for recycling (or for whatever purpose) they need to be:

1. Locked in the trunk
2. The driver needs to be 21.

You won't win the argument because you failed both of these. In fact you weren't charged with the open container law, but for being a minor in possession. Further the fact that you have resisting and intoxication charges in addition to your possession charge indicates there's more to it that you having your girlfriends recycling on board.

It's proof beyond a reasonable doubt, not beyond any invented perjurous story the defense can imagine.

 

[Ohiogal]

Gotta love the part where the friend lied to the cops. Brilliance all around.

 

[OHRoadwarrior]

As an aside... OP were you in the cast of the cancelled tv show where a star and his family managed to outwit attempts at gov't regulations to keep them alive and managed to kill themselves by asphyxiation?

 

[davew128]

It is not far fetched but it is ILLEGAL none the less. If you're going to transport unsealed alcohol containers for recycling (or for whatever purpose) they need to be:

1. Locked in the trunk
2. The driver needs to be 21.

You won't win the argument because you failed both of these. In fact you weren't charged with the open container law, but for being a minor in possession. Further the fact that you have resisting and intoxication charges in addition to your possession charge indicates there's more to it that you having your girlfriends recycling on board.

Did you read the thread? I'm not the one being charged here. You're also incorrect on the law.

189.530􀁢􀁢􀁢Providing motor vehicle to person intoxicated or under influence of
substance which may impair driving ability -- Possession of open
alcoholic beverage container in a motor vehicle prohibited -- Exceptions
-- Definitions -- Election of offenses to prosecute.

(4) For the purposes of this section, "open alcoholic beverage container" means
any bottle, can, or other receptacle that contains any amount of alcoholic
beverage, and:
(a) Is open or has a broken seal; or
(b) The contents of which are partially removed.

An empty bottle by definition does not contain any amount of alcoholic beverage. That's not a perjurous defense theory, that's the law.

As for the minor in possession charge, if the OP didn't have an odor of alcohol on his breath and the bottles are empty, good luck getting a conviction. No alcohol present + no evidence of consumption = no possession.

 

[FlyingRon]

It's perjurous because he knows it's not true. He's just making illusory excuses that his girl friend might have had it as part of her recycling efforts.

You'd better check what the court's sense on "partially removed is" but in some places in Kentucky, a few drops left in the bottle (enough to make it smell of the contents) is enough. The fantasy girlfriend would be well advised to rinse out the bottles before transporting them.

 

[OHRoadwarrior]

I think the court will accept the smell of residue as acceptable due to chemical nature of alcohol evaporation. However, they might not. What is the officer going to testify to? If he says it was there, his word will be accepted. Here is one such case where the empty bottle argument almost worked.

http://scholar.google.com/scholar_case?case=16667300099365420678&q=open+alcoholic+beverage+container+empty&hl=en&as_sdt=ffffffffffffe04

Here is another gem on the topic:

http://scholar.google.com/scholar_case?case=2294496751382489020&q=open+alcoholic+beverage+container+empty&hl=en&as_sdt=ffffffffffffe04

 

[jj793]

Let's just leave DaveW's girlfriend out of it. I admit she didn't leave anything in my car.

In fact you weren't charged with the open container law, but for being a minor in possession. Further the fact that you have resisting and intoxication charges in addition to your possession charge indicates there's more to it that you having your girlfriends recycling on board.

Pretty sure I WAS charged with open container and was NOT charged with intoxication. Feel free to correct me if I'm wrong about that (?).

Gotta love the part where the friend lied to the cops. Brilliance all around.

When was that?

As an aside... OP were you in the cast of the cancelled tv show where a star and his family managed to outwit attempts at gov't regulations to keep them alive and managed to kill themselves by asphyxiation?

Haha what? No but it sounds amazing.

As for the minor in possession charge, if the OP didn't have an odor of alcohol on his breath and the bottles are empty, good luck getting a conviction. No alcohol present + no evidence of consumption = no possession.

This is how I feel about it too. If you have a drunk underage person and an empty bottle I see how you can make a connection with actual alcohol. I was sober and had an empty bottle - where's evidence that I was ever in possession of actual alcohol? This is not the "Might Have Olympics".

You'd better check what the court's sense on "partially removed is" but in some places in Kentucky, a few drops left in the bottle (enough to make it smell of the contents) is enough.

Do you have a link for a definition of "partially removed"? What do you mean by 'some places'? Do you just mean it depends on the judge?

Interesting OHRoadwarrior. Thanks for the links. Though in the Georgia case the driver admitted that he had been drinking in the car.

And I notice this part from the second:

Empty containers obviously do not qualify as alcoholic beverages�although possessing such containers might strongly suggest a violation of the proscription against consuming alcohol.

From the point of view of the prosecution as far as I understand. This is also not the "Might Strongly Suggest Olympics".

I'm still interested in the location of my car - which as far as I can see was not on a "public highway or on the right-of-way of a public highway" - anyone have any opinions on that?

 

[davew128]

It's perjurous because he knows it's not true. He's just making illusory excuses that his girl friend might have had it as part of her recycling efforts.

Read the thread again. It was me mentioned a girlfriend. It's not perjurous if an attorney mentions a possibility, rather than stating it as fact.

You'd better check what the court's sense on "partially removed is" but in some places in Kentucky, a few drops left in the bottle (enough to make it smell of the contents) is enough. The fantasy girlfriend would be well advised to rinse out the bottles before transporting them.

You DO understand what black letter law means, right? I mean, seriously, how long do you think a few drops would last in an open container before evaporating, especially if the OP hadn't been drinking from it?