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Ely
Ely, Counselor at Law
Category: Criminal Law
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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If the container is capped why is considered "open contai

Resolved Question:

If the container is capped why is considered "open container".
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

Can you please tell me a little more about what has happened? Where you charged with having an open container in the vehicle?

What kind of container was it? Did it have an unwinding cap or a pull-out cork?

Was the container already pre-opened but closed, or, closed and never opened before?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

Citation received of "Open Container", that's all it said.


 


The stop was routine. A misdemeanor violation was issued for "Open Container" (OC). A court appearance is required. No one seems to know why the stature is called "Open Container Law." Correct present , past, and past perfect English knowledge of all legislation is required.


 


The notice to appear was issued in to some else as the middle name is XXXXX XXXXX middle than mine. I found 50 people with that middle name in MD alone.


 


 


I was given breatlyizer test. The result was .04. Since up to .08 is allowed in Maryland I thought that was it. But the officer seemed pressured to give a ticket for something.


 


He eventually, although permission was denied, bullied his way into my SUV. He found a glass bottle of extremely expensive liquor, tightly sealed, but not full, mostly consumed consumed at a weekend stay with friends. He did not ask and had NO knowledge of when and how many different times alcohol consumption occurred.


 


It may be a common law issue, not statutory, you think? Unbelievable, but broken seal is the same as a bottle of brew in the drivers hand in Maryland.


 


It bothers me as the language misleads those who don't have time to fully read every statue.


 

Expert:  Ely replied 1 year ago.
Thank you, R.

This is covered in Maryland's Crim. Law §§ 10-123 et seq. It states:

“Open container” means a bottle, can, or other receptacle:
(1) that is open;
(2) that has a broken seal; or
(3) from which the contents are partially removed.


That is it. That is as descriptive as it gets. Now, the rest is up to the Judge, or Jury (if you choose a trial and ask for a jury trial). They would be the decider of whether or not the charge is proper given the verbiage of the statute.

The issue is that the statute is ambiguous a bit. Sometimes the statutory language is susceptible of more than one meaning. When faced with an ambiguity, courts must consider not only the literal or usual meaning of the words but also the meaning of words in light of the statute as a whole and within the context of the objectives and purposes of the enactment. Romm v. Flax, 340 Md. 690, 693, 668 A.2d 1, 2 (1995). Common sense must guide us in our interpretation of statutes, and "we seek to avoid constructions that are illogical, unreasonable, or inconsistent with common sense." Frost v. State, 336 Md. 125, 137, 647 A.2d 106, 112 (1994). Although this Court is not limited to the literal or usual meaning of statutory language, Romm, 340 Md. at 693, 668 A.2d at 2, the Court may not insert or omit terms to make a statute express an intention not reflected in the statute's original form. Bridges v. Nicely, 304 Md. 1, 10-11, 497 A.2d 142, 147 (1985); Police Comm'r v. Dowling, 281 Md. 412, 419, 379 A.2d 1007, 1011 (1977).

As such, one's attorney can make the argument to the Judge or Jury that given the mitigating factors, one should not have been charged with this crime because the bottle was obviously not being drunk then and there, the driver was not intoxicated or had serious blood alcohol level, and it may have been previously opened, but was on the back seat and obviously not in use, but only being transported.

In such cases, the Judge (or jury) can then make the decision. A jury is generally more favorable, as they add a "subjective" touch to the matter that may override any cold legal doctrine and sway them towards the Defendant's side anyhow.

Finally, if the matter is dismissed, one may even consider bringing a civil suit for malicious prosecution. "Malicious prosecution is the beginning or continuing of a legal prosecution with malice and without probable cause against another, where the proceedings terminate in favor of the other person." Montgomery Ward v. Wilson, 339 Md. 701 - Md: Court of Appeals 1995.

I hope this helps and clarifies. Good luck.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

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Customer: replied 1 year ago.

Thank you. I think your answer is excellent. You demonstrate a very concise, timely and correct (I checked a citation you gave), and by now a sharp young man like you probably knows or feels that all I want are the correct information, possible strategies, precisely what you gave, or example.


 


If you have a private email, I would love to have you as an advisor. I'm 67+ now, retired after 40 years for federal mil and civ employment and although financially sound, healthy - finished a 5K this an - I find it easier as the sun rises...until winter arrives, even then sometimes. A real weakness of mine is being interested in keeping up with the latest thinking. Email me back (personally at this address) if you your company will allow or explain how I can request you personally. Thank you again! I'll approve the money. Note, I always gave my employee's bonus for extraordinary work.


 

Expert:  Ely replied 1 year ago.
R,

Thank you. I think your answer is excellent. You demonstrate a very concise, timely and correct (I checked a citation you gave), and by now a sharp young man like you probably knows or feels that all I want are the correct information, possible strategies, precisely what you gave, or example.

Thank you for your kind words. That really made my day.

If you have a private email, I would love to have you as an advisor. I'm 67+ now, retired after 40 years for federal mil and civ employment and although financially sound, healthy - finished a 5K this an - I find it easier as the sun rises...until winter arrives, even then sometimes. A real weakness of mine is being interested in keeping up with the latest thinking.

While this is tempting, I am afraid that JustAnswer specifically forbids its experts to contact customers outside of the website. So I must forgo the kind offer, unfortunately. I am sorry.

Email me back (personally at this address) if you your company will allow or explain how I can request you personally.

I can only use this medium to communicate, so hence, I cannot email back. However, you may always find me here.

Thank you again! I'll approve the money. Note, I always gave my employee's bonus for extraordinary work.

Your kinds words are very well-received, thank you.
Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 88634
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 9 other Criminal Law Specialists are ready to help you
Expert:  Ely replied 1 year ago.
Thank you for your gratuity.

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