Call Today for a Free Consultation

212-786-2999

               newyorkcitydefense@gmail.com




Public Consumption of Alcohol aka Open Container of Alcohol




Drinking alcohol in public is the most frequently issued Criminal Court Summons in New York City. In 2010, over 140,000 of them were issued to persons caught drinking alcohol in a public place. Many of those cited were here on business or vacation and have a court date in NYC months after they will have returned to their homes in other states and countries thus requiring them in some instances to hire a NYC lawyer to make an appearance.  


   While City council has plans to decriminalize these offenses and send them to civil court, the current status of the change is up in the air as NYPD officers are still writing summons for criminal court.   The New York Times also has reported that the City Council is trying to pass legislation to get offenses such as open container of alcohol out of criminal court.


   Drinking alcohol in public, also known as public consumption, open container, etc is sometimes charged as a misdemeanor under the NYC Park Rules and Regulations, but usually it is charged as a violation under NYC Administrative Code 10-125. The text of that provision is as follows:



Got a Summons in New York City for Drinking Alcohol in Public while   on business or vacation?  

 

"ADC. LAW § 10-125 : NY Code – Section 10-125: Consumption of alcohol on streets prohibited


a. Definitions.

Whenever used in this section, the following terms are defined as follows:


1. Alcoholic beverage. Any liquid intended for human consumptioncontaining more than one-half of one percent (.005) of alcohol by volume.


2. Public place. A place to which the public or a substantial group of persons has access including, but not limited to, any highway, street,road, sidewalk, parking area, shopping area, place of amusement, playground, park or beach located within the city except that the


definition of a public place shall not include those premises dulylicensed for the sale and consumption of alcoholic beverages on the premises or within their own private property. Such public place shall also include the interior of any stationary motor vehicle which is on any highway, street, road, parking area, shopping area, playground, park or beach located within the city.


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.


c. Possession of an open container containing an alcoholic beverage by any person shall create a rebuttable presumption that such person did intend to consume the contents thereof in violation of this section.


d. Nothing in this section shall be deemed to prohibit the consumption of an alcoholic beverage in any duly licensed establishment whose certificate of occupancy extends upon a street.


e. Any person who shall be found to have violated any of theprovisions 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."


That is the entire provision and note that there is an exception in the law for drinking alcohol at an establishment whose license extends onto the street, so don't worry about drinking in a restaurant that has (legal) outdoor seating.   (but perhaps you should first have your New York lawyer check their Certificate of Occupancy).  Also, there is an exception for duly permitted block parties, feasts and  similar functions.   But the NYPD will cite people drinking a beer on their stoop, as this NY Times article discusses.


It is also important to note that most criminal court judges in New York City will dismiss the summons if the police officer fails to write the brand of alcohol in the factual part of the summons.  (this is the part of the summons that the defendant does not get until he goes to Court or has his NY lawyer obtain it from the court clerk).  Sometimes the officer will merely allege that there is an open container of alcohol near the client, and judges often dismiss those too.  But recently, the summons form was amended to make it easier for the officers to make the summons legally sufficient.


But still, the only way to determine if an NYC open container of alcohol summons is legally insufficient is to carefully examine the copy of the summons that is filed with the court clerk.  The filed copy (actually the original) will have additional information which is not on the copy that the officer gives the recipient of the summons.


Remember that the filed copy will not be available from the clerk until about a month after the date of issuance of the summons. This is because the original copy of the summons must be delivered to 346 Broadway and then processed into the SAMS computer system and given a docket number.  A process that usually doesn't occur until about a month before the actual court date listed on the summons.  


Pleading guilty by mail may not be the best way to handle a public consumption of alcohol summons.


Since 2004, persons charged with open container violations under NYC Admin Code 10-125(2)(b) can plead guilty by mail and send a payment for $25. Click here for the official information. While pleading guilty by mail alleviates the need for the person or their lawyer to go to court,  the bulk of individuals who plead by mail never have a lawyer examine the summons to determine whether it can be dismissed for facial insufficiency.  People who plead by mail are also likely to miss out on the chance for the Court to grant them an ACD (adjournment in contemplation of dismissal).  With an ACD ("Adjournment in contemplation of dismissal") the summons will be dismissed and sealed in 6 months.  That means that it will not be a public record and not available to background checkers.  Also, with an ACD, it will not have to be disclosed on any application which asks whether a person has ever been convicted of an offense other than a traffic offense.   For a person just starting out in their career with the potential to have to complete untold applications for jobs, schools, licenses, promotions,  etc., they should carefully consider opting for the ACD over the plea by mail.


While it might be quicker and cheaper in the short run to just plead guilty by mail and send NYC the 25 bucks, spending the extra time and money to have a New York City Attorney experienced with open container case review the court copy of the summons may avoid a conviction and the nuisance and worry over having to disclose the open container conviction on applications.   


There are a few cases out there which--if they are followed by the courts-- can make it difficult for a conviction on open container.   Recently or example, a Brooklyn judge started the police to prove by a lab test that the substance in the container is over ,5 percent by volume.  A very impracticable test for the NYPD to perform just so the city can collect 25 bucks.  http://www.nytimes.com/2012/06/15/nyregion/sniff-test-doesnt-prove-public-drinking-judge-says.html?  Talk to your NY Attorney before pleading guilty by mail to a public consumption of alcohol charge.   


If you have a question call Robert Briere at 212-786-2999 or complete the form to the left or send an email to newyorkcitydefense@gmail.com