Anytime I have a client charged with an open container in a vehicle, we have the perception issue that the client was drinking while driving, or was planning to do so if not stopped by the police. Assuming the client was not also charged with a DUI, this open container misdemeanor still presents a serious long-term consequence. If convicted of this offense, you would have a criminal record.
The perception issue causes a lot of prosecutors to be hesitant to dismiss the open container, because they are holding onto the charge thinking the client got away without being charged with a DUI - it's just a prosecutor thing and really jams up many clients. When I was a prosecutor I had marching orders not to dismiss these type of charges, because a message could not be sent that people can drive around with open drinks in their vehicle, and simply have the charge dismissed.
As I do with all cases, I rely on this experience as a prosecutor to help my clients who face these same allegations. If I am working with a client charged with this offense, we need to acknowledge how the prosecutor and judge view the case - the "almost DUI".
I have my clients begin a series of proactive steps such as an alcohol insight class, attend a MAAD panel, do some community service, and if "bad driving" is involved as the basis of the traffic stop then we are probably also takin taking a driver improvement class.
Without the currency of these steps, a prosecutor will simply say "well set it for trial" - that's NOT going to help my client because they are guilty of the offense, and some judges will treat the client like a DUI client on probation due to the "almost DUI" - the goal should be to have this charge dismissed at the pretrial phase to avoid the criminal record and potentially brutal probation.
There are other ways for a client to learn from this experience, but until an alternative approach (my proactive approach) is presented to the prosecutor and judge, they simply want to "almost DUI" because that feels most natural and its the safest approach.
The perception issue causes a lot of prosecutors to be hesitant to dismiss the open container, because they are holding onto the charge thinking the client got away without being charged with a DUI - it's just a prosecutor thing and really jams up many clients. When I was a prosecutor I had marching orders not to dismiss these type of charges, because a message could not be sent that people can drive around with open drinks in their vehicle, and simply have the charge dismissed.
As I do with all cases, I rely on this experience as a prosecutor to help my clients who face these same allegations. If I am working with a client charged with this offense, we need to acknowledge how the prosecutor and judge view the case - the "almost DUI".
I have my clients begin a series of proactive steps such as an alcohol insight class, attend a MAAD panel, do some community service, and if "bad driving" is involved as the basis of the traffic stop then we are probably also takin taking a driver improvement class.
Without the currency of these steps, a prosecutor will simply say "well set it for trial" - that's NOT going to help my client because they are guilty of the offense, and some judges will treat the client like a DUI client on probation due to the "almost DUI" - the goal should be to have this charge dismissed at the pretrial phase to avoid the criminal record and potentially brutal probation.
There are other ways for a client to learn from this experience, but until an alternative approach (my proactive approach) is presented to the prosecutor and judge, they simply want to "almost DUI" because that feels most natural and its the safest approach.
