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JD
JD, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1335
Experience:  Over 11 years of practice in litigation including 10 years as a state prosecutor
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I was a passenger in a vehicle where the driver was given a

Customer Question

I was a passenger in a vehicle where the driver was given a dwi. I also was cited with a open bottle. I am on probation and also have 4 dwi myself. Being I wasn"t tested for alcohol is there anyway this can stand up in court. It wasn't my bottle.
Submitted: 5 years ago.
Category: Criminal Law
Expert:  JD replied 5 years ago.

169A.35 OPEN BOTTLE LAW

Subdivision 1. Definitions.

As used in this section:

(1) "alcoholic beverage" has the meaning given it in section 340A.101, subdivision 2;

(2) "distilled spirits" has the meaning given it in section 340A.101, subdivision 9;

(3) "motor vehicle" does not include motorboats in operation, or off-road recreational vehicles except when being operated on a roadway or shoulder of a roadway that is not part of a grant-in-aid trail or trail designated for that vehicle by the commissioner of natural resources;

(4) "possession" means either that the person had actual possession of the bottle or receptacle or that the person consciously exercised dominion and control over the bottle or receptacle; and

(5) "3.2 percent malt liquor" has the meaning given it in section 340A.101, subdivision 19.

Subd. 1a. Alcoholic beverage, distilled spirit, 3.2 malt liquor; determination.

For purposes of this section only, when determining whether a beverage is an alcoholic beverage, a distilled spirit, or 3.2 percent malt liquor:

(1) "alcohol by volume" means milliliters of alcohol per 100 milliliters of beverage; and

(2) "alcohol by weight" means grams of alcohol per 100 grams of beverage.

Subd. 2. Drinking and consumption; crime described.

It is a crime for a person to drink or consume an alcoholic beverage, distilled spirit, or 3.2 percent malt liquor in a motor vehicle when the vehicle is upon a street or highway.

Subd. 3. Possession; crime described.

It is a crime for a person to have in possession, while in a private motor vehicle upon a street or highway, any bottle or receptacle containing an alcoholic beverage, distilled spirit, or 3.2 percent malt liquor that has been opened, or the seal broken, or the contents of which have been partially removed.

Subd. 4. Liability of nonpresent owner; crime described.

It is a crime for the owner of any private motor vehicle or the driver, if the owner is not present in the motor vehicle, to keep or allow to be kept in a motor vehicle when the vehicle is upon a street or highway any bottle or receptacle containing an alcoholic beverage, distilled spirit, or 3.2 percent malt liquor that has been opened, or the seal broken, or the contents of which have been partially removed.

Subd. 5. Criminal penalty.

A person who violates subdivisions 2 to 4 is guilty of a misdemeanor.

Subd. 6. Exceptions.

(a) This section does not prohibit the possession or consumption of alcoholic beverages by passengers in:

(1) a bus that is operated by a motor carrier of passengers, as defined in section 221.012, subdivision 26;

(2) a vehicle that is operated for commercial purposes in a manner similar to a bicycle as defined in section 169.011, subdivision 4, with five or more passengers who provide pedal power to the drive train of the vehicle; or

(3) a vehicle providing limousine service as defined in section 221.84, subdivision 1.

(b) Subdivisions 3 and 4 do not apply to a bottle or receptacle that is in the trunk of the vehicle if it is equipped with a trunk, or that is in another area of the vehicle not normally occupied by the driver and passengers if the vehicle is not equipped with a trunk. However, a utility compartment or glove compartment is deemed to be within the area occupied by the driver and passengers.

 

............................................

 

You do not have to own the bottle to be guilty of the crime of Open Bottle. However the state must prove that you at least "consciously exercised dominion and control over the bottle or receptacle." If they are unable to prove this then you certainly should be able to defend the case.

 

You need a lawyer.

 

Please reply if I may assist further.

 

________________________

JD, Criminal Justice Lawyer
Category: Criminal Law
Satisfied Customers: 1335
Experience: Over 11 years of practice in litigation including 10 years as a state prosecutor
JD and 10 other Criminal Law Specialists are ready to help you
Customer: replied 5 years ago.
you have been helpful but i am very woried need answers on what could happen
Expert:  JD replied 5 years ago.

Misdemeanor sentencing in Minnesota carries up to 90 days in jail and up to a $1000 fine. You could also be violated on your current probation and be ordered to serve the balance of your sentence. There is no reason to worry about the worst case scenario as that very rarely turns out to be the case. You need to consult your attorney on your defenses to this open bottle violation and also speak with your probation officer after being consulted by your lawyer. If your probation officer does not know about the citation, you should let them know because you don't want them finding out from someone else.

 

Get to a lawyer's office first thing Monday morning to evaluate your defense.

 

Please reply if I can help further.

 

________________________

 

 

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