QUESTION
Can a person who is sober be charged with a DUI if there is an open container of alcohol from the previous night?
Asked on Mar 03rd, 2013 on DUI/DWI - Michigan
More details to this question:
My friend went to a party and slept at his friend’s house that night but come morning he heads home with his fifth of southern comfort if he were to get pulled over would he still be charged with a DUI.
10 ANSWERS
Michael J. Breczinski
He would be charged with having an open container of alcohol in his car not DUI.
Answered on Mar 13th, 2013 at 5:06 AM
Automobile Attorney serving East Lansing, MI
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Nichols Law Firm PLLC
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Yes the question is whether he can be convicted.
Answered on Mar 06th, 2013 at 1:34 AM
In order to be charged with a DUI, the prosecution must have some evidence to establish the elements of the crime beyond a reasonable doubt. The elements to a DUI in Michigan is that the driver was (1) operating a (2) motor vehicle (3) on a public street or highway (4) with a blood alcohol content of .08 or more. The mere presence of an alcohol container in a car does not in itself establish any of these elements and is therefore insufficient in itself to sustain a conviction.
Answered on Mar 06th, 2013 at 1:18 AM
Criminal Defense Attorney serving Alhambra, CA
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Francis John Cowhig
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Charged with a DUI - Probably Not. But he could be charged with driving with an open container in the car, usually a misdemeanor.
Answered on Mar 06th, 2013 at 1:17 AM
Drug Charges Attorney serving Houston, TX
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Cynthia Henley
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Yes, if the officer believes that they are intoxicated. They can be charged with open container even if not charged with DWI.
Answered on Mar 06th, 2013 at 1:02 AM
1 Award
Not DUI, but instead having an open container.
Answered on Mar 06th, 2013 at 12:52 AM
Criminal Defense Attorney serving Englewood Cliffs, NJ
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Savyon Grant, Esq. & Associates
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No. But it depends on discovery.
Answered on Mar 06th, 2013 at 12:42 AM
Criminal Defense Attorney serving Oakland, CA
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Kapsack & Bair, LLP
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It would depend on his blood alcohol concentration, it is possible for a person who drank a significant amount of alcohol to still be above the legal limit even after sleeping. Your body eliminates alcohol at a fairly standard rate, if the amount of time between the last drink of alcohol and the time of driving is adequate, your friend may still be above the legal limit. It seems more likely your friend could get an open container ticket, but if they were arrested for DUI then your friend should consult a DUI attorney about the facts of their case and possible defenses.
Answered on Mar 06th, 2013 at 12:40 AM
Absolutely. One can be charged for any crime a police officer sees fit. That does not mean the charge is true. However, if your friend is pulled over and car smells like alcohol and then your friend smells like alcohol, he could possibly be arrested with suspicion of DUI.
Answered on Mar 06th, 2013 at 12:40 AM
Adoptions Attorney serving Lansing, MI
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Austin Legal Services, PLC
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In order to be convicted of a DUI they would have to be able to prove that he was impaired by alcohol or legally intoxicated with a BAC of .08 or greater while driving. If he has an open container of alcohol in his car and gets pulled over, they can get him for Open Intox, but that would it.
Answered on Mar 06th, 2013 at 12:39 AM