I received an open container ticket today. Had an old forgotten flask under my seat with some alcohol in it. I had not been drinking at all. I asked the officer to perform a sobriety test and or breath test and he refused. I am from Virginia and as i read the law you must show signs of alcohol use to be issued an open container ticket. Just wanted to see if I had a chance to beat it?
1 Answer from Attorneys
Yes, Section B of Va. Code Sec. 18.2-323.1 (Va.'s open container law)
offers the one accused of violating this statute the opportunity to rebut the
presumption created by the open container in the passenger area of the vehicle with at least some of the alcohol removed from the container that the driver in fact had NOT consumed any part of what was found to have been removed from this container during the course of operating the vehicle subject to the traffic stop which occasioned the ticket for the alleged violation.
Your evidence for rebutting this presumption, however, must be at least sufficiently credible to raise reasonable doubt concerning this issue which may not be as easy to muster as you might think (particularly, when the police officer is claiming during the trial of the case that he smelled alcohol on your breath and that your speech seemed (allegedly) ever so slightly slurred.
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