Information on crimes that are commonly charged in Michigan. If you need legal assistance, please contact a lawyer.
(1) Except as provided in subsections (2) and (5), 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.
(2) Except as otherwise provided in subsection (5), a person may 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 other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of vehicles in this state, if the vehicle does not have a trunk or compartment separate from the passenger area, and the container is in a locked glove compartment, behind the last upright seat, or in an area not normally occupied by the operator or a passenger.
(3) 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 described in section 703(1) of the Michigan liquor control code of 1998, 1998 PA 58, MCL 436.1703. A court shall not accept a plea of guilty or nolo contendere for a violation of this section from a person charged solely with a violation of section 625(6).
(4) This section does not apply to a passenger in a chartered vehicle authorized to operate by the state transportation department.
(5) Except as otherwise provided in this subsection, unless prohibited by local ordinance, subsections (1) and (2) do not apply to a passenger in a commercial quadricycle. A passenger in a commercial quadricycle shall not transport or possess alcoholic liquor other than beer, wine, spirits, or a mixed spirits drink.
(6) As used in this section:
(a) “Glove compartment” means a recess with a hinged and locking door in the dashboard of a motor vehicle.
(b) “Passenger area” means the area designed to seat the operator and passengers of a motor vehicle while it is in operation and any area that is readily accessible to the operator or a passenger while in his or her seating position, including the glove compartment.
Although not as serious as an “Operating While Intoxicated” or “Operating Under the Influence of Liquor” (OUIL) charge, a conviction under Michigan’s “Open Intox” law can still sting. It is a criminal conviction—not a civil infraction, like a speeding ticket—and you could (in theory) go to jail for up to 93 days as a result, and/or face a fine of up to $500.00 (much more likely) plus court costs and fees. It will also add two points to your drivers license, and it will be reported to the state (meaning that your insurance company will see it, and most likely raise your rates or even drop your coverage). A second offense within seven years can also result in a suspension of your license for 30 days (during which you can not drive at all), and another 60 days of having a restricted license (meaning you can only drive to work, school, court, and medical appointments; no driving to the store or movies). A third conviction results in a 60 day suspension and a 305 day restriction after that. All of these sanctions apply regardless of whether you were the driver or a passenger in the vehicle! The penalties are even harsher for those who are under the age of 21. (See MCL 257.624b.)
These cases are typically easy for the prosecution to prove: they only have to prove that you were in the car, and that there there was an open container of beer, wine, or any other alcoholic drink. It does not matter if anyone was actually drinking it; they only have to prove it was there. There are some exceptions: it can be in the trunk or (in the case of a pick-up truck, the bed), or in a locked glove compartment or behind the back seat (but only if the vehicle does not have a trunk). There is also an exception for chartered vehicles; if you are drinking on a chartered bus and the bus driver gets pulled over, neither you nor the bus driver will be in danger of being charged with having an open intoxicant in the vehicle. The container also has to contain alcohol, so if you are transporting empty beer cans to be recycled, you should be safe. (Overly enthusiastic police sometimes do try to ticket people for this charge if there is even a tiny bit of liquid in any of the cans, however.)
Whether or not a prosecuting attorney will be willing to work on some kind of a reduced charge varies greatly, depending upon the specific prosecutor involved, the circumstances of the charge, the defendant’s prior convictions, and so on. Often, pro-active measures (such as attendance at substance abuse support meetings and/or having a substance abuse evaluation done) prior to court can persuade prosecutors to be more lenient.
Because it is a “traffic code” offense, this offense cannot be expunged under Michigan’s criminal record expungement statute, MCL 780.621 et seq.
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