Open Container Law -Arizona, PLEASE ADVISE

Latest post 05-28-2009 11:59 PM by Drew. 15 replies.
  • 05-24-2009 4:48 PM

    • Moymishka
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    Open Container Law -Arizona, PLEASE ADVISE

    Any help would be appreciated.

    Over the weekend while camping at [a] Lake, a group of us was driving from the marina to our camping ground. We had two empty beer cans in the truck. We asked to stop the sheriff a question regarding fire restrictions, when he noticed the empty cans and wrote two of us tickets for possession of open container of alcohol. Both of us were passengers and we were not drinking however we still got tickets, and in Arizona it’s considered a criminal ticket.

    We were not aware that one we could be ticketed since we were in the forest on camping grounds, and two, since the cans were empty we did not even think about it, we were just waiting to throw them out when we got to our camping ground.

    We have to appear in court and we are not sure what to do. Please advise.

     

  • 05-24-2009 6:32 PM In reply to

    Re: Open Container Law -Arizona, PLEASE ADVISE

    I suggest you consult local counsel.  According to AZ statute, this is a Class 2 Misdemeanor and subject to up to $750 and four months imprisonment.

     

  • 05-24-2009 7:36 PM In reply to

    Re: Open Container Law -Arizona, PLEASE ADVISE

    Ignorance of the law is no defense. Empty is no defense. Being passengers is no defense. Not drinking is no defense. And not thinking certainly is no defense.

    Here's the statute:

    http://www.azleg.state...

    If would be a good idea to hire an attorney. Maybe you can plead down to something less damaging.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 05-26-2009 11:52 AM In reply to

    • Moymishka
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    Re: Open Container Law -Arizona, PLEASE ADVISE

    what would be something less damaging?

  • 05-26-2009 1:02 PM In reply to

    Re: Open Container Law -Arizona, PLEASE ADVISE

    Lots of things.

    Depends on how creative your attorney can be in his negotiations with the prosecutor.

    Maybe a seatbelt violation or an equipment violation. I don't know. Anything that will keep an alcohol related violation off your record.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 05-26-2009 2:07 PM In reply to

    Re: Open Container Law -Arizona, PLEASE ADVISE

    Empty IS a defense.

    You can't be in possession of alcohol if there is no alcohol there.  The statute expressly says the container has to have "spirituous liquor."  (And that better be defined somewhere...)

    There's probably even a mens rea element that requires knowledge that there is alcohol in the container.

  • 05-26-2009 2:09 PM In reply to

    Re: Open Container Law -Arizona, PLEASE ADVISE

    Apply for a PD.  You probably have a right to get police reports here.  You're hoping the police reports recite that the cans were empty.

    It isn't categorically unlawful to have empty containers in a vehicle.  If you are out in the desert and have a beer, the law isn't so stupid that it requires you to toss the cans in the desert, rather than transport them to a proper disposal site.

  • 05-26-2009 4:11 PM In reply to

    • Moymishka
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    Re: Open Container Law -Arizona, PLEASE ADVISE

    If i was to apply for a public defendent, do i need to do that before the court date, or do I appear in court, plead not guilty and then they assign me a public defendent?

  • 05-26-2009 4:28 PM In reply to

    Re: Open Container Law -Arizona, PLEASE ADVISE

    According to the Mari

    copa County public defender website:

    Before a public defender can represent an individual, the court must determine that the person cannot afford to hire an attorney. Once that determination is made, the court must appoint a public defender to the case.

    And:

    The initial appearance is your first step in the criminal justice system. At this appearance you will be:

    http://www.pubdef.mari...

    If you are in Maricopa County I suggest you call the pd's office and ask about the procedure.

    If you are in some other county you can google the county public defender and then call.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 05-27-2009 12:02 AM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on 03-30-2000
    • PA
    • Posts 49,587

    Re: Open Container Law -Arizona, PLEASE ADVISE

    As defined in that statutue an empty container is not an open container!



  • 05-27-2009 2:37 PM In reply to

    • Moymishka
      Consumer
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    • Joined on 05-24-2009
    • AZ
    • Posts 5

    Re: Open Container Law -Arizona, PLEASE ADVISE

    Because it has not been 14 days since the incident, i cant get a police report yet. If the reports does not state that the cans are empty, but does not specify content, can i fight it on lack of detail?

  • 05-27-2009 3:19 PM In reply to

    Re: Open Container Law -Arizona, PLEASE ADVISE

    Nope.  The police report isn't evidence to be used against you.  The officers would testify, and their memories, not the reports, are relevant.  A police report can be used to challenge their oral testimony.  That is, if they testify the cans were half full, but the report says they were warm to the touch and bone dry, then their testimony is iffy.

  • 05-27-2009 11:05 PM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on 03-30-2000
    • PA
    • Posts 49,587

    Re: Open Container Law -Arizona, PLEASE ADVISE

    Laymans take:

     

    You'd be wise to use criminal defense attorney!

    Do you have first hand knowledge that cans were empty--seems critical point under AZ law!

    Where were you relative to passanger compartment --truck bed and where were cans.

    Were you on a public roadway/right of way?



  • 05-28-2009 11:45 AM In reply to

    • Moymishka
      Consumer
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    • Joined on 05-24-2009
    • AZ
    • Posts 5

    Re: Open Container Law -Arizona, PLEASE ADVISE

    I cant really afford an attorney, i was going to ask for a public defender. I dont want to spend every last penny i have on this and i was hoping a public defender would work out. Do you think thats a bad idea?

     

  • 05-28-2009 12:15 PM In reply to

    Re: Open Container Law -Arizona, PLEASE ADVISE

    You can certainly apply for a public defender and see if you qualify financially. Any lawyer is better than no lawyer.

    A couple of responders have commented on the definition of "open container".

    The statute says:

    "4-251 D. 2. "Open container" means any bottle, can, jar or other receptacle that contains spirituous liquor and that has been opened, has had its seal broken or the contents of which have been partially removed." (Emphasis mine.)

    So there very well could be an empty can defense unless, maybe, there was even a drop of beer left in the can.

    Once you get the police report you can see what the officer wrote.

    I haven't been able to find case law on the internet regarding the definition of open container.

    It would be a good idea if you visited the law library and looked up the Annotated Statutes that have appellate cases listed under each statute. Then you can look up the cases if there are some.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
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