Jan 31, 2020 Open alcohol containers- Fairfax criminal lawyer on defenses
Open booze containers invite a Virginia prosecution, says Fairfax criminal defense lawyer
Open beer, wine and alcohol containers often are consumed while covered in paper bags to try to avoid police intervention. As a Fairfax criminal lawyer, I know that Virginia law bars consuming alcohol while driving, and also possessing an alcoholic beverage in a public schoolyard.
Consuming alcohol while driving is a Virginia Class 4 misdemeanor
Virginia criminal law bans consuming alcohol while driving — sometimes charged in tandem with a DUI charge — which is a Class 4 misdemeanor, carrying a fine up to $250, court costs, and a mark on one’s reputation. Va. Code § 18.2-323.1. “A rebuttable presumption that the driver has consumed an alcoholic beverage in violation of this section shall be created if (i) an open container is located within the passenger area of the motor vehicle, (ii) the alcoholic beverage in the … container has been at least partially removed and (iii) the appearance, conduct, odor of alcohol, speech or other physical characteristic of the driver of the motor vehicle may be reasonably associated with the consumption of an alcoholic beverage.” Id.
Fairfax County law bars public possession of open alcoholic beverage containers
Virginia county codes can add to the alcohol carry prohibitions. For instance, the Fairfax County Code establishes a Class 4 misdemeanor for possessing “open alcoholic beverage container while in a public park, playground, or on a public street.” Fairfax County, Virginia, Code § 5-1-25.
Virginia law bans possessing alcohol on public school grounds
Virginia seems more hospitable to public handgun and firearm possession than simply carrying an open alcoholic beverage container. The commonwealth makes it jailable to “possess or drink any alcoholic beverage in or upon the grounds of any public elementary or secondary school during school hours or school or student activities,” other than for a few narrow exceptions. Va. Code § 4.1-309. Such a violation is a Class 2 misdemeanor, carrying up to six months in jail and a fine up to $1,000.
Fairfax criminal on possible defenses against such prosecutions
Those charged with a jailable misdemeanor must go to court, and prepaying a Class 4 misdemeanor charge (whether for an open alcoholic beverage container or other Class 4 misdemeanor) misses the opportunity to win or negotiate a case dismissal, and only risks a higher fine and court costs if one loses, unless the prosecutor decides to add a charge of underage alcohol possession (for those under 21 years old).
If one’s open alcohol case proceeds to trial, defenses can include a Fourth Amendment challenge to the police stop of the defendant, and to the officer’s seizure of the alleged alcohol; and a Fifth Amendment challenge to suppress anything the defendant told the police. The defense can also challenge all elements of the alleged offense, including whether the defendant did in fact possess the alleged alcohol (which requires proving the defendant’s knowledge, dominion and control over the container), and whether it is proven beyond a reasonable doubt that the liquid is in fact alcohol (versus a cleaned and re-used alcohol container containing a soft drink).
Fairfax criminal defense lawyer Jonathan L. Katz is a top-rated attorney pursuing your best defense against felony, misdemeanor and DWI prosecutions. Please call 703-383-1100 to schedule a confidential consultation with Jon Katz.