# Court Tosses Open Container Conviction | TadLaw

Having an open container of alcohol in your car can be a problem if you are stopped by a police officer. The mere presence of the container can be cited as a **Class C misdemeanor**, which carries a maximum fine of $500. And if the officer also has probable cause to arrest you for DWI, that open container can lead to enhanced penalties should you be ultimately convicted of that charge.

## Don’t Panic When Stopped By Police

The important thing to remember when pulled over by law enforcement is not to panic. At the same time, you still have certain rights and expectations with any police encounter. So if the officer does not follow certain procedures, you should not be held responsible for taking reasonable actions to protect yourself.

**A recent decision from the Texas 11th District Court of Appeals, [*Ingram v. State*](https://scholar.google.com/scholar_case?case=16635527816065850049&), provides a useful example.**

In this case, a police officer was surveying traffic early one morning when he saw a truck pass by. The officer said the truck’s rear license plate was difficult to read. The officer decided to follow the truck. Eventually, the officer activated his lights and siren in an attempt to initiate a traffic stop. But the driver of the truck–the defendant in this case–kept driving until he reached his own driveway.

When the officer finally initiated contact with the defendant, the officer said he observed an “open, half-full bottle of beer” inside the truck. But while the officer also said he smelled alcohol, he did not suspect the defendant of DWI. However, when the officer ran the defendant’s driver’s license, he found out the defendant was on parole and had an outstanding warrant from another state. The officer then cited the defendant for the open container violation and arrested him on the outstanding warrant.

Prosecutors later charged the defendant with “fleeing or attempting to elude a police officer,” a Class B misdemeanor under Texas law. A jury convicted the defendant and the trial judge subsequently sentenced the defendant to 90 days in jail (which he had already served). The defendant still appealed the conviction, which the 11th District ultimately reversed.

## Why was the conviction reversed

According to the 11th District’s opinion, fleeing or attempting to elude a police officer is only a crime when the officer in question was in uniform and driving a “marked police vehicle.” That is to say, the police vehicle must “bear the insignia of a law enforcement agency, regardless of whether the vehicle displays an emergency light.” In this case, nothing in the trial record indicated that the prosecution introduced any evidence on this point.

The officer testified he flashed his lights and siren. But there was no testimony regarding whether his vehicle was properly marked. Since this was a statutory element of the crime, the appellate court observed, the prosecution had the burden of proving it beyond a reasonable doubt. Absent such proof, the Court was obliged to set aside the defendant’s misdemeanor conviction.

For a free legal consultation, call [(281) 280-0100](tel:+12812800100) today

## Charged with an Open Container Violation?

### Contact Attorney Tad A Nelson Today

Absent evidence of drunk driving, an open container violation is little more than a traffic citation. But you still have the right to contest a charge, especially when it is later superseded by other, more serious allegations. If you need advice or representation from a qualified Houston DWI lawyer, contact Attorney Tad Nelson today. Our phone number is [**281-280-0100**](tel:281-280-0100).

Call or text [(281) 280-0100](tel:+12812800100) or fill out our [Free Case Evaluation Form](https://tadlaw.com/contact-us/) to get started

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Source: https://tadlaw.com/blog/court-tosses-open-container-conviction/