Open Containers Of Alcohol In The Vehicle Can Add On Charges
This happens fairly often. The police may find open containers of alcohol within a vehicle and may take pictures t and then indicate in the police report they could smell the odor of an alcohol beverage coming from inside the can or inside the bottle.
The officer may pour the contents out just to ensure that when the car was returned to the person, the car did not contain any alcohol. It would completely be at the discretion of the officer whether they wanted to charge the person with an additional offense.
A lot of people do get charged with open containers of alcohol in the vehicle, and there are plenty of officers who could easily charge the person with anything they could think of. However, they might decide not to, on the theory that since the person was already being charged with a DUI, they did not need to nitpick and give them additional charges just to make their life harder.
Again, this would completely be at the discretion of the officer. This can sometimes assist the defense in situations where the person was in a parking lot or parked on the side of the road, but they had open containers of alcohol in the vehicle. It may end up being part of the defense because the prosecutor would have to prove the person consumed alcohol prior to or while driving.
If the person was stopped in a parking lot or on the side of the road, especially if the engine was off, the fact there was an open container of alcohol in the vehicle would give the prosecutor a hard time trying to prove the defendant consumed alcohol prior to or while driving.
Police Can Search In Plain Sight In The Vehicle
Certain aspects of the law would have to be in play when an officer searched the vehicle during a DUI investigation.
The officer would have to ask for consent to search the vehicle and the person would have to give consent. If something was in plain sight or in plain smell, however, the officers could either attempt to get a warrant to access the car or to do a further search.
In some cases, the item might literally be in a place where it would be lawful for the officer to reach into a vehicle to grab it after a person was arrested for DUI, which might include drugs, a gun or an alcohol container.
Towing A Vehicle Is A Good Excuse For The Police To Search The Vehicle
Officers often might decide to tow the vehicle after a DUI arrest. The courts would have to determine whether or not the officer was allowed to do an inventory search on the vehicle prior to towing it.
A lot of officers use the idea of an inventory search to completely search the vehicle. They look for alcohol containers, drugs and or anything they can find to use against the person in a DUI charge or to possibly find other evidence of other crimes that may be occurring, such as possession of drugs.
The Blood Alcohol Content Would Only Matter If It Was Tested Within 2 Hours Of Driving
Trying to say that the person had a lower blood alcohol level at the time of the driving and that the blood alcohol level continued to go up while the officer was doing an investigation would not really count as a defense. The prosecutor would need to prove what the blood alcohol level was within 2 hours of driving.
It would be possible that their blood alcohol level went up from the time they were driving to the time they had their blood or breath test performed. Arizona law states that the prosecutor would only need to prove what the person’s blood alcohol content was within 2 hours of driving.
It would not really matter whether their blood alcohol level went up or down. What would matter is what the blood alcohol level was within 2 hours of driving depending on when that blood was taken or the breath test was done.
Some attorneys may argue this at trial to try to confuse the jury or try to confuse the issues whereas this would not really be the issue.
A defense attorney might try to argue this if they did not really have anything else to go on. However, the prosecutor would simply be able to point to the jury instructions and point to the law and tell the jury it did not matter what the blood alcohol level was at the time of driving. It mattered what it was within 2 hours of driving and that the test was done within 2 hours of driving.
For more information on Search Warrants And Defending DUI Charges, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling 480-900-0384 today.
