NYC Open Container Tickets and Summonses: A Lawyer's Guide
What Is an Open Container Violation?
Open Container laws are state or local laws that prohibit the drinking of alcoholic beverages in either public places such as parks and streets or in private places such as vehicles.
Nearly all states have some type of law against possessing an open container of alcohol in a public place. For the most part, these laws are selectively enforced. For example, police will ignore thousands of people publicly drinking while tailgating at a sports or music event, but enforce the law against students in a college town or pedestrians on the streets of New York City.
In New York City the Open Container law (Section 10-125 of the NYC Administrative Code) states in part, as follows:
§ 10-125 Consumption of Alcohol on Streets Prohibited
b. No person shall drink or consume an alcoholic beverage, or possess, with intent to drink or consume, an open container containing an alcoholic beverage in any public place except at a block party, feast or similar function for which a permit has been obtained.
e. Any person who shall be found to have violated any of the provisions of this section shall be punished by a fine of not more than twenty-five dollars ($25) or imprisonment of up to five (5) days, or both, or pursuant to the provisions of the family court act of the state of New York where applicable.
How to Handle the NYC Open Container Summons
The NYPD is one of the most prolific law enforcement agencies in the world in its voluminous issuance of Open Container tickets, issuing upwards of 40,000 summonses each year for the 10-125 (b) charge.
One of the issues facing those charged with Open Container tickets is that they are often issued the summons while visiting New York City. In fact, nearly half of the summonses that I review each year are issued to non-residents of New York. Unfortunately, those summonses usually require people to come to 346 Broadway Criminal Court 2-3 months after the issuance! For most people from out of New York, returning to NYC to personally appear in court is simply not feasible.
Fortunately, the Criminal Courts in New York tend to be relatively lenient on the requirement that the defendant appear in person. Nearly all NYC Courts will permit a defendant on an Open Container case to appear via his or her attorney and also permit the lawyer to accept a non-criminal violation disposition on his client's behalf (provided that the lawyer presents an authorization to the judge).
If you happen to live in New York City, you'll probably choose to go to Court for yourself, but be forewarned: You could wind up spending several hours waiting in line (in the snow or rain) just to gain entry to the Courthouse (particularly at 346 Broadway) and several more hours waiting for your case to be heard.
For both non-New York residents who can't be bothered to travel back to New York and NYC residents who would rather not take a day off work or spending an entire day among the 'undesirables' of criminal court, having an open container attorney appear on your behalf makes a lot of sense.
One Centre Street - Manhattan Criminal Court Location
Tricks to Beat Your NYC Open Container Summons
In order to beat your New York Open Container ticket, here are a few tips:
- If you're going to consume alcohol in public, be aware that there are exceptions for street festivals, certain park events, and stadiums.
- Be careful about bars and restaurants that have ambiguous boundaries — the Central Park restaurants and bars are notorious for having people step down a step and get ticketed by passing park police!
- If consuming alcohol on the city streets, one would be wise not to carry an easily identifiable beer bottle or can. These are the easiest for the police to spot.
- Placing said alcoholic beverage in a paper bag is also a bright, red flag for police. There is no exception for bottles and cans that are inside a paper bag.
- Police DO NOT TEST for alcohol nor will they TASTE the beverage. A beverage in a paper or plastic cup that smells alcoholic can only be identified as alcohol by YOU.
- There are plenty of non-alcoholic beverages that smell exactly like beer and liquor.
- A sealed alcoholic beverage is not subject to the prohibitions of 10-125(2)(b). The law requires that the container of alcohol be OPEN.
- Merely being WITH a person consuming alcohol on the city streets should never subject a person to being cited for that same offense. The only person who can legally be charged with an open container of alcohol violation is the person in POSSESSION of the open, alcoholic beverage.
How I Know What I Know
I am an attorney that has been practicing criminal law and representing defendants in New York for 15 years, during which time I have also served both New York City and New York State as an Impartial Hearing Officer, Administrative Law Judge and Small Claims Arbitrator.
As an expert and media personality, I have appeared on or been featured in The New York Times, Fox News, Wall Street Journal, Good Morning America, CNN, US News & World Report, Headline News, Huffington Post, ABC, Dallas Morning News, Men's Vogue, BBC Radio and countless other media outlets.
© 2011 Jason Stern