Open Containers
2012 January 10
Question
Ron asked: A cyclist picks up an empty (hence, open) beer can or bottle for whatever reason, and sticks it in a rear jersey pocket. Would this constitute a violation of Florida’s open container Law?
Answer
The definition in the statute is self-explanatory. The intent is obviously to prohibit drivers from consuming alcoholic beverages while driving.
s. 316.1936 - Possession of Open Containers of Alcoholic Beverages in Vehicles Prohibited; Penalties
(1) As used in this section, the term:
(a) “Open container” means any container of alcoholic beverage which is immediately capable of being consumed from, or the seal of which has been broken.
11 Responses
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WHY would anyone do that?
Or are you trying to find some way of beating a DUI on a bicycle?
Perhaps you’re picking up litter while stopped at a light.
But I’m confused – isn’t the intent of open container to keep the driver from saying “oh, my passenger was drinking that”? So why would it only apply to non-empty cans?
http://boards.straightdope.com/sdmb/showthread.php?t=189793 indicates that it does apply to empties, at least in some places. http://www.boston.com/news/local/articles/2010/01/17/clarifying_what_constitutes_an_open_container/ says that in Massachusetts it doesn’t apply.
Here’s the complete statute, which clears up the issue of passengers:
s. 316.1936 – Possession of open containers of alcoholic beverages in vehicles prohibited; penalties
(1) As used in this section, the term:
(a) “Open container” means any container of alcoholic beverage which is immediately capable of being consumed from, or the seal of which has been broken.
(b) “Road” means a way open to travel by the public, including, but not limited to, a street, highway, or alley. The term includes associated sidewalks, the roadbed, the right-of-way, and all culverts, drains, sluices, ditches, water storage areas, embankments, slopes, retaining walls, bridges, tunnels, and viaducts necessary for the maintenance of travel and all ferries used in connection therewith.
(2)(a) It is unlawful and punishable as provided in this section for any person to possess an open container of an alcoholic beverage or consume an alcoholic beverage while operating a vehicle in the state or while a passenger in or on a vehicle being operated in the state.
(b) It is unlawful and punishable as provided in this section for any person to possess an open container of an alcoholic beverage or consume an alcoholic beverage while seated in or on a motor vehicle that is parked or stopped within a road as defined in this section. Notwithstanding the prohibition contained in this section, passengers in vehicles designed, maintained, and used primarily for the transportation of persons for compensation and in motor homes are exempt.
(3) An open container shall be considered to be in the possession of the operator of a vehicle if the container is not in the possession of a passenger and is not located in a locked glove compartment, locked trunk, or other locked nonpassenger area of the vehicle.
(4) An open container shall be considered to be in the possession of a passenger of a vehicle if the container is in the physical control of the passenger.
(5) This section shall not apply to:
(a) A passenger of a vehicle in which the driver is operating the vehicle pursuant to a contract to provide transportation for passengers and such driver holds a valid commercial driver’s license with a passenger endorsement issued in accordance with the requirements of chapter 322;
(b) A passenger of a bus in which the driver holds a valid commercial driver’s license with a passenger endorsement issued in accordance with the requirements of chapter 322; or
(c) A passenger of a self-contained motor home which is in excess of 21 feet in length.
(6) Any operator of a vehicle who violates this section is guilty of a noncriminal moving traffic violation, punishable as provided in chapter 318. A passenger of a vehicle who violates this section is guilty of a nonmoving traffic violation, punishable as provided in chapter 318.
(7) A county or municipality may adopt an ordinance which imposes more stringent restrictions on the possession of alcoholic beverages in vehicles than those imposed by this section.
(8) Nothing in this section prohibits the enforcement of s. 316.302.
(9) A bottle of wine that has been resealed and is transported pursuant to s. 564.09 is not an open container under the provisions of this section.
So are you saying that it is a violation of the law? In that case, I agree with you, despite the intent.
I’m not saying one way or the other. I’ll leave the interpretation up to the readers. When in doubt, see your local law enforcement officials. Note that the statute leaves room for local ordinances that might be more restrictive.
It seems to me that if it were illegal to pick up alcoholic trash and transport it by vehicle, the garbage collectors would be violating the open container law (since the guy riding on the back can reach the trash).
It’s obvious to me, that the OP is trying to use the same logic as NE2 is using (Picking up trash, while stopped) as a defense to a DUI on a bicycle charge.
Until we get a response from the OP, we’ll never know…
In the same way, look at it like this…
You see a hash pipe or a used needle on the ground, do you pick it up or leave it?
Given the chance that you might get stopped and have it in your “possession”, Why would you pick it up?
I’d say, just call the local police and let them know where it is, if you have any doubt! Why take the chance?
P.S. I’ve seen both before and I just crushed it with my boot and then throw it in the nearest garbage bin..
It seems to me that the OP was probably asking about picking up trash, although the other interpretation is possible. I pick up trash when reasonable, though not usually when I biking.
The law as posted consistently refers to “container OF alcoholic beverage”. It makes no mention of the labeling. This of course is to make the open container illegal whether it’s the original container or not. Pouring beer into a Coke can doesn’t make the beer non-alcoholic; it makes the Coke can into an open container of alcoholic beverage. But this also shows that it’s the content of the container which is important, not the label. A completely empty beer can is not a container OF alcoholic beverage, it’s just a container of air.
Edward
A container of used alcohol still has alcohol in it (albeit a miniscule amount), unless it was washed out…
There would be no reason to pick up a beer can (or bottle for that matter) and keep it in your possession. That’s just asking for trouble.
(ESPECIALLY, if you were at a bar just moments earlier.. Hint,hint)
It’s naive to think that someone is going around picking up totally empty (and washed out) beer cans or bottles, just for fun.
If anyone is THAT WORRIED, I would suggest that if you’re cycling and there is debris (in this case alcoholic beverages) in the road, at the next possible chance, call the local municipal building and let them know where so that the appropriate entity is contacted to clean it up.
Also, if it is any kind of drug paraphernalia, do the above immediately, and DON’T TOUCH IT!
I didn’t expect this kind of response!
No DUI here! Nothing to defense at this point.
I am just curious about this as I may sometime pick up aluminum beer bottles for use in
making alcohol stoves for touring/camping/backpacking uses.
I fully understand the intent of the law. But, that would not stop an overly zealous
(or, hostile for whatever reason) law enforcement official from attempting to
employ the letter of the law.
As stated above, s. 316.1936 (2)(a) states “It is unlawful and punishable as provided in this section for any person to possess an open container of an alcoholic beverage or consume an alcoholic beverage while operating a vehicle in the state or while a passenger in or on a vehicle being operated in the state.”
As a bicycle is defined as a “vehicle” and the cyclist as the “operator” and an empty beer can is, by definition an “open container of alcoholic beverage,” I have resisted the temptation to pick up empty aluminum beer bottles unless I can place them in a rack pack.
This may not remove the culpability, but would obscure any overt reason for investigation by a law enforcement official.
Everyone can relax-I don’t drink and ride!! (or drive)