My name is XXXXX XXXXX I'd be happy to answer your questions today.
1. If he's going to charge someone for carrying an alcoholic beverage down the street, then he should at least smell or look at the contents of the beverage yes. He clearly didn't have it tested for alcoholic content - it could be very difficult to prove beyond a reasonable doubt that you were carrying alcohol in an open container if you and your friend can establish that he didn't take any steps to determine what was in the cup.
2. There are different statutes that you could be charged with - the ticket should state which one it is, or you could call the clerk of the court to ask what the court records say. Detroit Municipal Code, Section 38-5-1
defines disorderly conduct to include consuming alcohol in public, so that could be it. The general open container law
refers to open containers in motor vehicles, so that shouldn't be it.
3. Any violation of the Detroit Municipal Code is a misdemeanor
, so there wouldn't be a lesser included offense with that. You'd have to find out which statute they charged you with to be sure.
4. There isn't a specific phrase that has to be used. All you would have to say is that you'd like to move to dismiss the charges, because the prosecution cannot prove the case without a witness. If they try to introduce the ticket, you can object because that's hearsay.
5. Primarily, you would question on whether he smelled the beverage or tested it. Ask why he didn't confiscate it to determine what it was. If he says that he could smell it from a distance, ask if he can ordinarily detect alcohol from a couple of feet away. It's possible that he smelled alcohol on the two of you since you'd just left a bar, and assumed that there was alcohol in the cup. If you can determine that there was some other reason for the smell or that he didn't make any effort to verify the liquid in the cup, that may be enough to establish reasonable doubt. If you were only carrying the cup and not drinking it, that might also be something you can ask about. You could also ask about general procedures for verifying whether a beverage is alcohol and inquire why those weren't followed.
6. Two witnesses are better than one. It may help to get the other person to testify that the officer didn't check to see what was in the cup. But, essentially, the way to win is to establish that the officer had no idea what was actually in the cup and he just assumed it was alcohol.
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