Open Container in parked car

[dg83]

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

I see that some other people have had similar issues, but I couldn't find the exact answer to my question.

My partner & I were parked in our car in a parking lot of a business that was closed for the evening (NOT on the street). We had just arrived and were about to go to the bar across the street for a drink. We decided, for the purpose of saving money, to bring a drink to share before going to the bar. We drove to our destination with the drink closed and in the trunk of the car.

Once at our destination (again, with the car parked in the lot, and the engine off), we sat in the car and had just taken a couple sips each of the drink. Two undercover police officers then came up to our car and asked what we were doing. Apparently they were on a special project with some other officers coming only to this location due to some complaints.

We fully cooperated and honestly explained what we were doing and even admitted that the container did have alcohol in it. They then asked us to step out of the car & searched inside.

They ended up giving my partner a citation (as he was in the driver seat) and put: CVC 23222 (a) - Open Container as the reason for the citation. They drew a line through the speed/radar/etc info, but did circle "Medium" for the amount of traffic.

We understand that there may be a law against having an open container outside (which is why people get them when walking on a street or at a beach, etc). The problem is that while researching this code, all it seems to point back to is while you are DRIVING the car, which we were not.

Did the officer use the wrong code, or is there some loop-hole we don't understand? We aren't sure of what to do at this point as we have never been cited for anything of this caliber. Thanks for any advice anyone can provide...

 

[You Are Guilty]

The inside of your car, while parked in a "public place" (such as a public parking lot), is also considered a public place, particularly when the police can see you through the windows breaking the law.

 

[CdwJava]

You should have probably been cited for having an open container in public (assuming an ordinance exists prohibiting open containers) or for possessing an open container on an unlicensed commercial property. As it is, they cited your partner for a section that requires "driving."

23222. (a) No person shall have in his or her possession on his or
her person, while driving 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 which has been
opened, or a seal broken, or the contents of which have been
partially removed.​

That lends itself to some subjectivity as the term "driving" is not clearly defined in the Vehicle Code.

However, the term DRIVER is defined, and by that definition he may well have been the driver.

305. A "driver" is a person who drives or is in actual physical
control of a vehicle. The term "driver" does not include the
tillerman or other person who, in an auxiliary capacity, assists the
driver in the steering or operation of any articulated firefighting
apparatus.​

So, an argument can be made that he was driving the car ... it is weak, but it can be made.

Now, his choices are to argue this in court himself, or, hire an attorney to make the argument.

 

[dg83]

Thanks for the replies & info... it's certainly a disappointing situation, and we're doing the best to remedy it as much as possible.