Written by attorney Jonathan Andrew Paul

Open container Michigan - what the prosecutor thinks about your case, and how to win

As a former prosecutor in both New York City and Michigan, I worked on many open container charges. In Michigan there is a state law for open containers in a vehicle, but not necessarily outside of a vehicle.

In Michigan, a person who is an operator or occupant shall not transport or possess alcoholic liquor in a container that is open or uncapped or upon which the seal is broken within the passenger area of a vehicle upon a highway, or within the passenger area of a moving vehicle in any place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, in this state.A person who violates this section is guilty of a misdemeanor. As part of the sentence, the person may be ordered to perform community service and undergo substance abuse screening and assessment at his or her own expense.

As a former prosecutor, I was not thinking about how this type of offense could impact the person charged, because this type of case can never be expunged because it is under the Michigan Vehicle Code and not the penal code. It cannot be taken under HYTA or 771.1 so a prosecutor isn't doing someone any favors with this charge. It's possible to run into a prosecutor who simply says "no deals" then you're in trouble, because a trial on the issue might not be fruitful if the evidence is clear and strong. So what do you do?

As a criminal defense lawyer, I know that most of my clients are not in a good position when it comes to the evidence against them, so we need to think outside of the box. Pulling out your sword to fight a strong case is only setting my client up for failure - there needs to be another way. I work the proactive and moral approach. What if a prosecutor says no deal?

First you acknowledge the perception of your audience. Having an open container in a vehicle is dangerous and can lead to drunk driving, injury, death etc. As long as the client is not also changed with a DUI, there is some room for turning the facts into a valuable lesson learned situation. Doubling down on alcohol insight and awareness, jumping into a handful of AA meetings, maybe taking a safe driving course - anything to further ingrain positive life choices, especially when it comes to alcohol and where alcohol is consumed, transported and possessed.

We need to show the prosecutor that we understand what happened is not acceptable, and take control of the situation and take action on our own. We stand a better chance convincing a prosecutor to weigh the pros and cons of a criminal conviction for the rest of my client's life in our favor if we have this currency to play. It's also not bullshit; walking into the prosecutor's office and saying "my client can't have a record" is a load of crap and worthless - it might work with some prosecutors, but not the prosecutor who says NO DEAL. You need to come to court already two steps ahead of that prosecutor and blow them away. Better to work to change perceptions before going to court than asking a prosecutor to buy into your case the day of court with nothing to back it.

My goal for a client charged with the State of Michigan open container offense is to reduce the case to a civil infraction or the very least a different charge outside of the Michigan Vehicle Code that can be dismissed under a first offender type program.

Along with the State of Michigan open container in a vehicle charge, many cities, villages, townships and municipalities have this type of charge for an open container on a public street. While this does not involve a vehicle, it may be more serious for someone under 21 - even if the client is over 21, this is a criminal charge, which would give my client a criminal record. It would be our goal to take the same approach as above and put a number of proactive steps into place before going to court to work toward a resolution where the charge does not end up on my client's record.

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