Under Michigan law, both the driver and passengers in a motor vehicle are prohibited from transferring or possessing a container of liquor.
The Michigan open container law gives a very broad definition of alcoholic liquor. The law covers any compound or liquid that has any amount of alcohol in it. Some examples are:
- Spirits such as gin, whiskey, brandy and rum
- Wine and beer
- Any liquor that is distilled
- Any medicated compounds or powders that contain alcohol.
Like the definition alcoholic liquor, the term “motor vehicle” is also extremely broad. It covers any type of vehicles on a highway. There is one court ruling that found a four-wheel scooter, which was being used instead of a wheelchair, was considered a vehicle under Michigan’s open container law. There are some vehicles that are excluded under the law:
- Patrol vehicles that are electric
- Electric devices like Segway
- Electric carriages (Yes, that means horse carriages used as taxis)
- Pedal pubs—commercial quadricycles
What is Considered an Open Container?
An open container is any can, jar, cup, bottle that is used to hold alcohol. It does not matter if it contains beer, liquor, wine or whiskey, if the police officer finds that the seal is broken and it is in a place where it can be consumed readily by an individual, Michigan’s open container applies to the situation.
In a lot of case across all West Michigan Courts, open container violations go together with operating while intoxicated (OWI) citations. In Michigan, any driver who is over the age of 21 can be charged with a DUI when it is determined that the person’s blood alcohol content is .08% or higher. Anyone busted for drunk driving is facing probation, community service, probation, the loss of their driving privileges, fines and jail time.
The penalties for drunk driving include jail time, probation, fines, community service, and the loss of driving privileges.
Off Road Open Intoxicant Violations
Like Michigan Operating While Intoxicated laws, a person does not have to be driving a vehicle on the road to commit a violation of open intoxicant laws. This is similar to operating while intoxicated laws in Michigan. All that the law requires is that a person drives a vehicle in a space that is open to the public, drives in a place that is open to the public or an area that is accessible to vehicles. A parking lot in your house would qualify you to be arrested if you possessed an open bottle of intoxicants.
Exemptions To The Michigan Open Container Laws
Cork and Carry Laws provide a legal means for people to transfer alcohol. If a person buys a bottle of wine for their dinner, they are allowed to legally take the capped bottom home. If the vehicle you are transporting the liquor in has a trunk, the beverage must be placed in the trunk. If there is no trunk, the bottle must be placed in a glove compartment that is locked. If that isn’t an open, a person can place the adult beverage in the last seat of the vehicle. Avoid have the bottle in an area of the vehicle that can be accessed easily by occupants. Avoid having the liquor placed in an area of the vehicle that people would normally ride in.
The open container law in Michigan does not cover passengers who are using state-authorized charted automobiles, such as limousines and taxis.
Penalties Under Open Container Laws
If you are convicted of open intoxicants in a motor vehicle you are facing up to 90 days in jail. Like most misdemeanor crimes, you will be ordered to pay a maximum fine of $100, complete some community service and take a screening for substance abuse.
After a conviction for your first open intoxication offense, the secretary of state will not suspend or revoke your driver’s license. That is good news, but now here comes the bad news. If you get a conviction for a second offense, there will be a 30-day suspension of your driving privileges and 60 days of restricted driving after that. If a person is unfortunate enough to get a third conviction, there will be a suspension of 60 days and a massive 305-day restriction of the person’s driving license. If your license is restricted, you are only allowed to drive to court ordered appearances, major medical emergencies and to work and back. People who have a restricted driving privileges must keep proof on them to show an officer they are working. For every conviction, there will be two points added to the offender’s driving record. This leads to a massive increase in person’s insurance rates. When there is a huge increase for insurance coverage on a vehicle, many people go without insurance and then get in more legal trouble for that.
If you are charged with Operating While Intoxicated (OWI) or Operating While Visibly Impaired (OWVI) and get hit with an open intoxicant charge, you can expect to be hammered with extra penalties if you are found guilty of those serious drunk driving charges.
There are many people who get confused with open intoxicant charges and consuming alcohol on a highway under the Motor Vehicle code in Michigan. These are separate charges. You do not need to be in a vehicle to receive a charge for consuming alcohol on a highway. This crime is also a misdemeanor offense. It cares up to 90 days in a county jail. The maximum fine a person can get hit with is $500.
It you are given a ticket for having an open container, you will have to appear at court. Do not show up at court and enter a guilty plea at your first court date which is called an arraignment. You maybe guilty of nothing at all or a lesser charge!
Difference Between OWI And Open Container
There are several differences between these two distinct charges. First, you have to be driving or in control of a vehicle to be charged with a DUI. Second, the punishments are much tougher for an OWI conviction. You are facing more jail time, higher restrictions on your driving privileges and more points on your driving record. Finally, you have to have actually consumed alcohol to be charged with a DUI. A person may not have had a sip of alcohol and still be charged with violating Michigan’s open container law.
Defending Open Container Charges
There are many successful defenses that can be used to win your open container charge.
For example, we’ve been able to use the defense that a person’s constitutional rights have been violated. Sadly, many people voluntarily give their consent to a police officer when it comes to searching their vehicle. Unless the police officer has a valid warrant, a person may politely tell an officer that they do not consent to having their car or truck searched. In many cases, the officer would not have been allowed to legally search the automobile had they not be given permission to do so. Law enforcement officials will many times go “fishing” for a person who is not properly informed about their constitutional rights.
Another successful defense that can be used is setting your case for trial and hoping that the officer who issued the ticket does not show up. People need to realize this happens more times then they realize. Police officers are busy and not able to appear at court all the time. Local prosecutors hope you make their job easy by quickly pleading out your case.
Prosecutors are not aware of, or do not care about how this offense can have a huge negative impact on someone’s life. Because this offense is under the Michigan Vehicle Code, and not found in the Michigan penal code, this charge is not allowed to be taken under 771.1 or HYTA. HYTA and 771.1 are diversion programs designed to give people who make a mistake the chance to keep their record clean if they successfully complete probation. A prosecutor is obviously not doing anyone a favor by charging someone for a violation of the vehicle code. You can also run into a prosecutor who will simply say I am not going to offer anyone a deal. This is a very troubling situation to be in, because many times taking a case to trial is simply not going to be a fruitful endeavor because the evidence against the accused is strong.
We Specialize ONLY In Criminal Defense
Since I am a lawyer who only practices criminal defense, I know that the vast majority of my clients have strong evidence against them. Because of this, we decide to we are going to think outside of the box to get my clients the best results possible. Running into battle without the proper weapon needed, in this case the weapon is good evidence, is setting my clients up for a face plant. I take a hands on and proactive approach on these kinds of cases.
I insist that my clients understand the audience they will be in front of. (A judge and prosecutor) A person who has an open container in their vehicle is engaging in dangerous behavior. This kind of behavior can lead to drunk driving, serious injuries and in some cases death. If my client is not facing an OWI as well as the open container charge, I can use the facts to convince a judge and prosecutor that my client has learned important lessons and this behavior will never happen again. I make sure my clients become aware of the dangers of alcohol and get them to dive into treatment programs such as AA, counseling and a safe driving class.
My goal is to get the prosecutor handling the case to believe my client understands the behavior is not acceptable. I want the prosecutor to believe my client has learned for their mistake, that they will not do this behavior again and that they have taken steps to make sure it never does happen again.
I encourage the prosecutor to consider the pros and cons a criminal conviction will have on my clients for the rest of their lives. I want my clients to come into court with all the evidence needed to blow away the prosecutor with a favorable impression. By following the steps, I give my clients, they are always in the best position possible to mitigate the possible damages they are facing from a conviction.
If I am not able to get the charges against my client dropped, I insist on getting a charge that is a civil infraction or something that is not in the Motor Vehicle Code. Once the charge is outside the vehicle code, my clients can have the charge dropped under a program designed for first time offenders. If my still does not qualify for a diversion program, they can at least have the conviction removed from their record after five years by an expungement.
Like the state of Michigan, many cities, communities, villages, municipalities and townships have the same type of open container charge they can hammer someone with on their streets. This city charge does not deal with a vehicle. However, it still can cause someone to have a criminal record and all the negative repercussion come with a criminal conviction such as loss of employment opportunities. In these type of cases, I take the same approach as I do for charges brought by the people of the State of Michigan.
I know many people think that this kind of charge isn’t serious, and they do not need an attorney to help them out. This is a major mistake! Can you really afford to have a permanent criminal conviction on your record? Can you risk being denied a job promotion, other employment opportunities and a major increase in your auto insurance for many years? Call Shawn now at 616-438-6719! Shawn has a proven track record of results and will not rest until you get the best outcome possible!