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Not A CHL Question
Posted: Sun Nov 11, 2007 7:41 pm
by alphonso
I hope it's ok to post a "Texas" law question here, even though it's not gun related. I know there some knowledgeable folks on here and am hoping that one will chime in and answer my question.
A friend of mine takes his flask downtown for a night out. When he drives home he keeps the EMPTY flask in the car with him.
I keep telling him he is going to get in trouble for having an open container but he insists that since the flask is empty and he is sober that he is ok. I figure that a recently used "empty" flask probably still has a drop or so in it.
Who's right? Can an empty and recently used flask get you a citation?
Thanks in advance...
Posted: Sun Nov 11, 2007 7:52 pm
by txinvestigator
Ya'll worry about too much. Unless he hangs the flask from his rear-view how is it going to be discovered?
If it is discovered and is empty but obvious it recently had alcohol in it, it is going to cause him scrunity for a potential DWI. If he drinks the alcohol in the flask, how does he figure he is "sober"?
If this is just an academic question, I don't believe an empty flask can get you a citation.
Texas Penal Code
§ 49.031. POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR
VEHICLE. (a) In this section:
(1) "Open container" means a bottle, can, or other
receptacle that contains any amount of alcoholic beverage and that
is open, that has been opened, that has a broken seal, or the
contents of which are partially removed.
(2) "Passenger area of a motor vehicle" means the area
of a motor vehicle designed for the seating of the operator and
passengers of the vehicle. The term does not include:
(A) a glove compartment or similar storage
container that is locked;
(B) the trunk of a vehicle; or
(C) the area behind the last upright seat of the
vehicle, if the vehicle does not have a trunk.
(3) "Public highway" means the entire width between
and immediately adjacent to the boundary lines of any public road,
street, highway, interstate, or other publicly maintained way if
any part is open for public use for the purpose of motor vehicle
travel. The term includes the right-of-way of a public highway.
(b) A person commits an offense if the person knowingly
possesses an open container in a passenger area of a motor vehicle
that is located on a public highway, regardless of whether the
vehicle is being operated or is stopped or parked. Possession by a
person of one or more open containers in a single criminal episode
is a single offense.
(c) It is an exception to the application of Subsection (b)
that at the time of the offense the defendant was a passenger in:
(1) the passenger area of a motor vehicle designed,
maintained, or used primarily for the transportation of persons for
compensation, including a bus, taxicab, or limousine; or
(2) the living quarters of a motorized house coach or
motorized house trailer, including a self-contained camper, a motor
home, or a recreational vehicle.
(d) An offense under this section is a Class C misdemeanor.
(e) A peace officer charging a person with an offense under
this section, instead of taking the person before a magistrate,
shall issue to the person a written citation and notice to appear
that contains the time and place the person must appear before a
magistrate, the name and address of the person charged, and the
offense charged. If the person makes a written promise to appear
before the magistrate by signing in duplicate the citation and
notice to appear issued by the officer, the officer shall release
the person.
Posted: Sun Nov 11, 2007 7:53 pm
by KRM45
You are correct. He could get in trouble. He needs to keep the flask in the glove compartment or trunk to avoid trouble.
See Penal Code section 49.031
http://tlo2.tlc.state.tx.us/statutes/pe.toc.htm
Too slow
Posted: Sun Nov 11, 2007 9:28 pm
by seamusTX
(1) "Open container" means a bottle, can, or other
receptacle that contains any amount of alcoholic beverage
"Any amount" could be a microgram. Narcotics cases often involve that kind of quantity.
- Jim
Posted: Sun Nov 11, 2007 10:09 pm
by txinvestigator
seamusTX wrote: (1) "Open container" means a bottle, can, or other
receptacle that contains any amount of alcoholic beverage
"Any amount" could be a microgram. Narcotics cases often involve that kind of quantity.
- Jim
Yeah Jim, but that is a useable amount in narcotics, and the penalty is much more than a Class C.
If the flask is empty he won't get an open container cite unless the cop really has it in for him.