Provided you did not drink enough of the wine to become impaired or intoxicated, the only potential ramifications of driving home with your unfinished open bottle is that you could be charged with possessing or transporting open intoxicants in a motor vehicle. This crime is often simply called “open intox” or “open alcohol in a car.” Avoiding this charge is easy if you know the law. So, before we discuss how to avoid picking up a charge for open intoxicants in a motor vehicle, let’s first make sure you understand the law.
Michigan Penalties for Open Intoxicants in a Motor Vehicle
In Michigan it is illegal to possess or transport alcohol that is open, or uncapped, or where the seal has been broken within the passenger area of the car. ‘Open’ most often refers to a can where the tab has been popped, or a cup that contains alcohol. ‘Uncapped’ refers to a bottle top that has been removed. ‘Broken seal’ refers to a twist of cap, or similar top, or cork that has been opened previously and replaced. The ‘passenger area’ means any area that is readily accessible to the driver or a passenger(s) from their seats, including the glove compartment and center console.
This crime is considered a misdemeanor offense. If you are convicted of this crime you face up to 93 days in jail and up to a $500 fine plus court costs, community service, and rehabilitative services. These potential consequences are identical to the potential punishments set forth in the statute for DUI and domestic violence. The criminal conviction alone is a serious and damaging mark on your record that can impact your personal and professional life, including auto insurance, life insurance, and is abstracted or reported on your master driving record.
If convicted, it will be reported (abstracted) to the Secretary of State (SOS). If it is a first offense there will not be a suspension of your driving privileges, but 2 Points will be assessed on your driving record. If it is a second offense within 7-years, the SOS will suspend all driving privileges for 30 days and then allow restricted driving for 60 days. And should it ever happen for a third time the suspension would be 60 days and restricted for 305 days.
Understood, But I Thought it was Legal to Drive Home with My Wine?
It is legal to drive home with your open bottle of unfinished wine, and many restaurants will help you to recap your bottle of wine to take it home. Trouble is, you now have open alcohol. Under these circumstances, your best plan is to not have any open alcohol anywhere within reach inside the car.
Michigan law requires that your open alcohol not be in the passenger area which generally means anywhere that can be reached by the driver or passenger in the car. That means the trunk is best option. But what if there is no trunk? The law covers that too, and included it in the Michigan open intox statute. If you do not have a trunk then your open container can go in a ‘locked’ glove compartment, or behind the last upright seat, or in a place not normally occupied by the driver or passenger. The phrase “not normally occupied” is obviously vague, but the legal common-sense approach is to kept the open intox as far away from you as possible and in a place where neither you nor passenger cannot physically reach it.
The same rules apply if you leave a social gathering with a half empty bottle of your favorite bourbon, that’s open alcohol too. Or, you leave your college alumni tailgate and pack up your premixed bloody Mary, once again, that’s open alcohol. Even returnables can be considered open alcohol. The only exceptions to open alcohol is for chartered vehicles, such as a limo, or party bus, or commercial quadracycle.
Do I need a Lawyer for a Michigan Open Intox Case?
Our opinion is that you should always have an experienced and qualified Michigan open intox lawyer with you during every aspect of this criminal charge. If the possible penalties outlined above are not concerning enough, the potential of lifetime criminal mark on your record should be motivation to do everything you can to protect your present and your future.
Should I Just Plea Out my Michigan Open Intox Case, or Take it to Trial?
The decision to accept or negotiate a plea or go to trial is a decision for the you and you alone. Our approach is to prepare for trial from the beginning, review the facts and defend the case, but also negotiate a resolution that will not cause a permanent record. Every case is different because every client is different. Successful resolutions that we’ve obtained for our open intox clients in the past have included delayed sentence (which dismisses the case after completing certain requirements) and various reductions to a non-criminal civil infractions such as a seat belt ticket. In other instances we’ve had to force the prosecutor to go trial.
For example, the Michigan open intox lawyers at the Barone Defense Firm recently went to trial on an Open Intox charge and our client was acquitted. In this case, after a routine traffic stop, an officer located a can in the side pocket of the passenger door. The client had picked it up off the parking lot of their business before driving home…. yes, they were picking up litter. However, the officer believed that the amount of liquid in the can was sufficient to violate Michigan law, and the resulting bogus charge completely disrupted the life of our client. Ultimately, the jury voted not guilty, thereby saving all the hardships outlines above.
Obviously in hindsight it would have been best for this individual to have shaken out all the liquid and/or have placed the container in the trunk, but this case is an example of how even when totally innocent of criminal intent you can find yourself within the criminal justice system.
If you have been charged with open intoxicant in a motor vehicle, contact the team at the Barone Defense Firm to defend the charges and protect your future.