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. 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:
"ADC. LAW § 10-125 : NY Code – Section 10-125: Consumption of alcohol on streets prohibited
Whenever used in this section, the following terms are defined as
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. 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).
While it is more convenient and cheaper in the short run to just plead guilty by mail and send in the 25 bucks, spending extra time and extra money to have a New York Attorney review the court copy of the summons may avoid a conviction and a permanent public record After all, the guilty plea and conviction will become a public record upon acceptance of the mail-in guilty plea. For what its worth, the records are available to background checking companies or anyone with the individual's correct name and date of birth. Perhaps someday these records will be available online. 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 send an email to email@example.com