Possession of an Open Container

Florida law prohibits the possession of an open container in a vehicle, which is a non-criminal civil infraction violation punishable by a $500 fine only.

In Pasco County, various municipal ordinances might prohibit possessing an open container in designed places defined in the ordinance. For example, the City of New Port Richey’s alcohol ordinance provides that it is unlawful to “consume or possess an open container of alcoholic beverages on any property owned by the city, public parks, public sidewalks, and rights-of-ways…streets, alleys, public or semi-public parking lots, or semi-public spaces within the city.”

Under state law, anyone under the age of 21 years old is not allowed to possess an alcoholic beverage because of their age. The crime of underage possession of an alcoholic beverage is classified as a second degree misdemeanor which is punishable by up to 60 days in jail or 6 months on probation and a $500 fine.

For the reasons explained in this article, the prosecutor might have a hard time proving the offense or violation at trial.

Attorney for Open Container of Alcohol in Pasco County, FL

If you were charged with possession of an open container of alcohol, then contact an experienced criminal defense attorney in New Port Richey, FL.

We represent people caught with an open container in a vehicle or other prohibited area, or as a person under the age of 21 years old.

If the prosecutor with the State Attorney’s Office is unable to present sufficient evidence to sustain a trial court’s finding of guilt at trial, then the best result in the case is in outright dismissal on the merits before trial or a not guilty verdict at trial.

We understand the best ways to fight cases in which the state is unable to introduce the alcoholic beverage into evidence at trial or test it to confirm that it actually contains alcohol.

Our main office is located in downtown Tampa, FL. We have a second office conveniently located in New Port Richey.

Call 813-250-0500 to discuss your case today.

Problems with Proving Open Container of Alcohol Offenses

In S.C.S. v. State, 831 So. 2d 264 (Fla. 1st DCA 2002), the court reversed a conviction when no evidence was presented at the trial of the illicit nature of the contents of the cup and the defendant made no admission as to the nature of the substance.

For this reason, Florida law requires the State to introduce into evidence the beverage itself or a lab test showing the alcoholic content of the beverage unless it is also proven that:

  1. the officer recognized the smell of the alcoholic beverage; and
  2. the defendant admitted that he was drinking an alcoholic beverage in public.

In J.B. v. State, 705 So. 2d 1376 (Fla. 1998), the court found that the admission that the substance was contraband was sufficient to sustain the conviction given the other facts in the case.

In A.A. v. State, 461 So.2d 165, 166 (Fla. 3d DCA 1984), the court held that even an officer’s testimony concerning the appearance and the smell of the illegal contraband was based on experience was sufficient to prove the contraband was illegally possessed.

For municipal ordinance cases the City of New Port Richey, issues in the case might include whether the defendant was outside of the designated area in which alcohol can be consumed in public.

Additionally, if the issue is raised, the state must also have proof to show that the substance possessed was alcohol as defined by the ordinance. Most city ordinances define the term alcohol to mean a beverage “containing 0.5 percent or more alcohol by volume.”

For cases that an underaged person possessed the alcohol, the state must prove that the person was under the age of 21.

This article was last updated on Friday, August 7, 2020.