DUI: The cop found an open container in my car

Question: The cop in Woodstock charged me with DUI and open container. Actually there were 2 containers in the car. There was an old vodka bottle that must have been there for over a month, and I had an open beer can in the car on the center console. I just opened it before I got in the car to drive to the game and took a few sips.

I was drinking with some friends from Canton before we went to an Atlanta Falcons game downtown. But on the way a car hit me from behind and the cops got called. I wasn't drunk but I had been drinking. I can hold a lot more booze than what I drank so I thought I was alright to drive to the game. My buddies were pretty intoxicated.

When the cop came to my window he could see the beer sitting there. And when we got out he noticed the old vodka bottle on the floor of the car, without a cap.

I did the tests outside the car but I refused the blow test. I'm writing to you to ask about the open container charge. How bad does it look? My wife says it looks bad and a jury will think I was drunk driving.

B.T. in Roswell, GA

Answer: An open container certainly doesn't help your defense when facing a DUI charge. But there is a difference between a bottle found on the floor of a car and a beer that is cold and sitting in the center console.

Obviously, it is much easier to explain to a prosecutor, judge or jury the "harmlessness" of an old bottle in a car, as opposed to a drink that the driver was likely consuming while driving or just before. One looks worse than the other.

Of course, just having an open container in the vehicle does not establish that a driver is drunk, or even a less safe driver. It's even possible to plausibly assert that the driver was not drinking at all. But it does raise a question in many peoples' minds of how much the driver drank and their judgment. That's why DUI prosecutors also like to have an open container charge when bringing a drunk driving case. Let's face it, an open drink just looks bad.

In Georgia, an open container charge is a misdemeanor.

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