New numbers showing increases in Covid-19 illness and death suggest that infections in Michigan and the United States have not yet peaked. In response, Governor Gretchen Whitmer has ordered bars in many parts of Michigan to close again. According to the Detroit News, Whitmer’s order says that an establishment must close if its alcohol sales make up 70% or more of its gross revenue. This means that most nightclubs, strip clubs, and bars that don’t serve food must close or change their businesses to fit the guidelines. To help make up for the loss of income, bars can offer cocktails and drinks to-go and outdoor seating instead of closing completely.
Really? Are to-go Cocktails Legal?
To-go cocktails were illegal in Michigan before a new law passed on July 1, 2020. Previously, to-go cocktails would be considered open intoxicants in a motor vehicle, which is a misdemeanor in Michigan. Under the new laws passed by the Michigan legislature and signed by Governor Whitmer, bars and restaurants may now offer to-go cocktails and customers may take them away from the establishment from which they were purchased. Presumably, the majority of people will be driving to and from the restaurant or bar to grab their to-go cocktails.
The open intoxicants in a motor vehicle statute is found at Michigan Compiled Laws Sec. 257.624a. If you have a container with alcohol in it, here is what the law specifically requires:
- The container cannot be open and/or have a broken seal, if;
- The container is inside the passenger area and you are on a street or in a place open to the public.
An open or uncapped container must be in the trunk. If the vehicle does not have a trunk, then the container must otherwise be in a compartment separate from the passenger area of the car. It is generally ok to put an open alcohol container in a locked glove compartment provided there is no trunk, and if you have neither, then you can put the open alcohol container behind the last upright seat. Basically, you want to get it out of reach of the vehicle’s occupants and if possible placed in an area not normally occupied by the passenger or driver.
- be in a sealed container,
- without perforations or straw holes,
- be in a container less than one gallon in volume, and
- have a label that says, “contains alcohol: Must be delivered to a person 21 years of age or older.”
Establishments must also, of course, check ID to confirm the purchaser is at least 21 years old.
Could I be Charged with Open Intoxicants (intox) if I Take a Cocktail Home from a Bar or Restaurant?
It’s important to remember the above rules if you purchase a to-go cocktail. The establishment must give it to you with a sealed container and without a straw hole. If you are stopped by the police while transporting a to-go cocktail purchased from a bar, you obviously can’t be drinking the beverage on the way to your destination. It is also safest to make sure you don’t show any signs of tampering with the seal, taking off the top of the beverage, or consuming the beverage. If possible, it’s safest to store the beverage in the cargo area of the vehicle. Finally, make sure you have a state-issued ID card on you at all times when you have alcoholic beverages. If you follow these guidelines, you should not be charged with open intox while with a to-go cocktail.
What are the Consequences of Michigan’s open Intox Law?
There are several consequences you could face if you are caught with an open alcoholic beverage in your vehicle. First, it’s a criminal misdemeanor charge that would be on your criminal background record permanently. You may also be ordered to do community service, pay a fine, and do an alcohol assessment at your expense.
Will my Driver’s License be Affected if I’m Convicted of Open Intox?
If you are convicted of open intox your driving record will be affected. A conviction for open intox is reported to the Secretary of State. On a first offense, the Secretary of State will add two points to your driving record. On a second offense within seven years, your driver’s license will be suspended for 30 days and restricted for 60 days. On a third offense, your driver’s license will be suspended for 60 days and restricted for 305 days.
Do I Need to Hire an Attorney for an Open Intox Charge?
The attorneys at the Barone Defense Firm can help you if you’re charged with open intox. If you are concerned at all about the potential consequences listed above, it is very important that you hire an attorney experienced in defending open intox charges. There are many issues that could arise in an open intox case. For instance, the initial traffic stop may not have been legal. There also may be vehicle search issues in open intox cases. And even when the evidence isn’t in your favor, the attorneys at the Barone Defense Firm may be able to work out a deal with the prosecutor to keep the charge off your record.