Defense Lawyer for Open Container Charges in Georgia

Exceptions And Defenses

Transportation for Compensation Vehicles: shall not apply to any passenger in the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation or in the living quarters of a motor home or house trailer (see O.C.G.A. §40-6-253-(b)(2))

Non-Possession by Passenger: Only a person who consumes an alcoholic beverage or possesses an open alcoholic beverage container in violation of this Code section shall be charged with such offense. (see O.C.G.A. §40-6-253-(b)(3) his means that if you are a passenger in the car but not the driver, you cannot be charged with this violation if it cannot be proven that you had access to any containers in question, or that you drank from those specific containers. If, however, it can be shown that the passengers were able to access the open container, all parties with access can be charged per Georgia case law.

• “By showing that each of the defendants had equal access to the [open container] in the back seat, the State was able to support its theory that all of the defendants were guilty of joint constructive possession of the open containers.” Davenport v. the State., Walsh v. the State., 308 Ga.App. 140, 706 S.E.2d 757 (Ga. App. 2011)

Locked Glove Compartment: Any container that is discovered to be in a locked glove compartment is exempted from the “Passenger area” criteria per O.C.G.A. §40-6-253(a)(3)

Trunk or Cargo Area: Any container that is discovered to be located behind the rearmost upright seat is exempted from the “Passenger area” criteria per O.C.G.A. §40-6-253(a)(3). In an SUV, this means that any container that cannot be proven to have been anywhere behind the back of the SUV is not in violation of this Code section.

Non-Highway: Containers are only in violation of this code if it can be proven that they were in the Passenger area while on a roadway or shoulder ofanypublic highway. “Indeed, it might be possible for one to possess an open container of alcoholic beverage while operating a motor vehicle in a parking lot or driveway and not be guilty of violating OCGA § 40-6-253.” Sexton-Johnson v. State, 839 S.E.2d 713 (Ga. App. 2020)

Wine Taken from Restaurant: In a more specific exception, notwithstanding any other contrary provision of law, any restaurant which is licensed to sell alcoholic beverages for consumption on the premises may permit a patron to remove one unsealed bottle of wine per patron for consumption off premises, if the patron has purchased a meal and consumed a portion of the bottle of wine which has been purchased on the premises with such meal on the restaurant’s premises. A partially consumed bottle of wine that is to be removed from the premises must be securely resealed by the licensee or its employees before removal from the premises. The partially consumed bottle of wine shall be placed in a bag or other container that is secured in such a manner that it is visibly apparent if the container has been subsequently opened or tampered with, and a dated receipt for the bottle of wine and meal shall be provided by the licensee and attached to the container. If transported in a motor vehicle, the container with the resealed bottle of wine shall be placed in a locked glove compartment, a locked trunk, or the area behind the last upright seat of a motor vehicle that is not equipped with a trunk. See O.C.G.A. § 3-6-4

Case Law

In the case of Sexton-Johnson v. State, 839 S.E.2d 713 (Ga. App. 2020), an officer observed a white vehicle stopped in the center turn lane, perpendicular to the roadway, with its rear sticking out into the roadway. Officer Hall, who was in uniform, then exited his patrol car and started walking toward the white vehicle. Sexton-Johnson, the driver of the white vehicle, immediately yelled, “Why the fuck are you pulling me over?” As Officer Hall approached the vehicle, he could smell “an overwhelming amount of unburnt marijuana” and noticed two additional occupants in the vehicle- one in the passenger seat, and another sitting behind the driver’s seat.

Sexton-Johnson explained that she went to a party to pick up her intoxicated friends and that one of the friends tossed her wig out the window as they were driving down the road; Sexton-Johnson stopped in order to retrieve the wig from the roadway. According to Officer Hall, a wig was found “a decent way behind [his] patrol vehicle.

Officer Hall advised the back-seat passenger, who was clearly intoxicated, to step out of the vehicle because she was being arrested for giving a false name and date of birth. The passenger yelled, “I’m not getting out of the fucking car.” As both officers attempted to remove the passenger from the vehicle, Sexton-Johnson turned around and “sucker punched Officer Hall in the left eye with her closed right fist.”

Both Sexton-Johnson and her passenger were taken into custody without further incident. Both officers testified that Sexton-Johnson did not appear to be intoxicated, but that the back-seat passenger was intoxicated. During a search of the vehicle, Officer Bezon recovered several items from the vehicle, including marijuana from a purse inside the vehicle, a bottle of Jose Cuervo wedged under the front passenger seat, and a bottle of Crown Royal wedged further under the front passenger seat. The seals on both bottles had been broken, and the bottle of Jose Cuervo was three quarters empty, while the bottle of Crown Royal was half empty. According to Officer Bezon, both bottles were ‘readily accessible’ to both Sexton-Johnson and her back-seat passenger, but not the front-seat passenger.

Ms. Sexton-Johnson was tried and convicted of felony obstruction of an officer and possession of an open container of alcoholic beverage while operating a vehicle, due to the bottles of liquor. However, upon appeal, the defense was able to get the Open Container charge reversed by arguing that regardless of what actions transpired after the traffic stop, the incident could not have fit the charge because the charge required a venue of a highway. In their opinion, the justices state “Indeed, it might be possible for one to possess an open container of alcoholic beverage while operating a motor vehicle in a parking lot or driveway and not be guilty of violating OCGA § 40-6-253.”