Open Container Violations (10-125 (2b))
Have you received an Open Container ticket or summons in New York City?
What is an Open Container Violation?
Found in the “Public Safety” Article of the New York City Administrative Code, section 10-125 sets forth the offense:
§ 10-125 Consumption of alcohol on streets prohibited. a. Definitions. Whenever used in this section, the following terms are defined as follows:
1. Alcoholic beverage. Any liquid intended for human consumption containing more than one-half of one percent (.005) of alcohol by volume.
2. Public place. A place to which the public or a substantial group of persons has access including, but not limited to, any highway, street, road, sidewalk, parking area, shopping area, place of amusement, playground, park or beach located within the city except that the definition of a public place shall not include those premises duly licensed for the sale and consumption of alcoholic beverages on the premises or within their own private property. Such public place shall also include the interior of any stationary motor vehicle which is on any highway, street, road, parking area, shopping area, playground, park or beach located within the city.
b. No person shall drink or consume an alcoholic beverage, or possess, with intent to drink or consume, an open container containing an alcoholic beverage in any public place except at a block party, feast or similar function for which a permit has been obtained.
c. Possession of an open container containing an alcoholic beverage by any person shall create a rebuttable presumption that such person did intend to consume the contents thereof in violation of this section.
d. Nothing in this section shall be deemed to prohibit the consumption of an alcoholic beverage in any duly licensed establishment whose certificate of occupancy extends upon a street.
e. Any person who shall be found to have violated any of the provisions of this section shall be punished by a fine of not more than twenty-five dollars ($25) or imprisonment of up to five (5) days, or both, or pursuant to the provisions of the family court act of the state of New York where applicable.
What Should I Do?
What this means is that mere possession of an open container of alcohol is sufficient to prove intent unless the defendant comes back with evidence showing that the open container was possessed for another purpose. It is important to note that the factual portion of the accusatory instrument charging this offense must contain an assertion that the defendant “drank or consumed an alcoholic beverage or possessed, “with intent to drink or consume,” an open container containing an alcoholic beverage.” People v. Torres, 1 Misc.3d 126A, (App. Term. 1st Dep’t 2003).
Therefor, if the summons itself does not contain these words, the charge should be dismissed. Unfortunately, in New York City, the person charged with this offense is usually not provided with the factual portion of the summons at the time that it is issued. More frequently, that section is shown to the defendant for the first time (or his or her attorney) in court on the summons return date.
By now, you should have realized than an Open Container ticket or summons is not something to ignore. If you fail to appear in Court on your court date, a warrant for your arrest will be issued. If you have been issued a summons or otherwise been charged with possessing an open container of alcohol in New York City, you may want to consider having our firm provide representation for you. Contact us for a FREE consultation and quick fee quote at 212-920-6950.