Open Container Tickets and Summonses: A Legal 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 -- ignoring thousands of people publicly drinking while tailgating at a sports or music event -- but enforcing the law against students in a college town or pedestrians on the streets of New York City.

For example, 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.

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 very often they are 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 are usually returnable to the 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, because of the high cost of travel and lodging, 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 can be 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 and NYC residents whom would rather not be bothered with taking a day off of work or spending an entire day among the 'undesirables' of Criminal Court, I highly recommend having an attorney appear on your behalf.

Attorney Jason Stern has been practicing criminal law and representing defendants in New York for 15 years, during which time he has 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, he has appeared on or been featured in The New York Times, Good Morning America, CNN, Headline News, ABC, Dallas Morning News, Men's Vogue, BBC Radio and countless other media outlets.

And yes, his firm will gladly handle your Open Container summons for you.