Public Consumption of Alcohol aka Open Container of Alcohol
Pleading by mail may not always be the best way to handle the summons.
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 the only way to determine if a New York City summons for drinking alcolhol in public is legally insufficient is to look carefully at the allegations page of the summons. As stated above, that is a page that the summons recipient does not receive from the police officer. Not sure why, but it is filed with the criminal court clerk and made available to the defendant and/or his ny attorney once the summons is processed and put into the SAMS computer system. A process that usually doesn;t occur until several days before the actual court date listed on the summons.
Since 2004, persons charged with open container can plead guilty by mail and send a payment for $25. Click here for the official information. But people who plead guilty to this violation by mail never get a chance to look at page two of the summons
While pleading guilty by mail alleviates the need for the person or their lawyer to go to court, I think it sets a bad precedent. Allowing people to enter guilty pleas by mail, even to something as seemingly innocuous as drinking in public, seems to be the beginning of a slippery slope and eventually Courts will be having pleading to all sorts of charges.
There are two reasons why I do not like pleas of guilty to open container by mail. First, the person will probably not be entirely sure to what they are admitting since they never read the allegations page of the summons. Second, it encourages a laissez-faire approach to criminal court matters. Often-times, criminal court convictions can be stigmatizing and carry all sorts of collateral consequences and a plea by mail could easily be an uncounseled plea by someone unaware of these consequences.
At the very least, the Court should supply the Defendant with a copy of the factual allegations portion of the summons if it expects people to plea by mail. Otherwise, the only way to see that page is to go to the Courthouse where the summons is scheduled-- either on the date of the Court Appearance or a few days before-- and (politely) ask the clerk to give them a copy of it. Sure, taking a trip to the couthouse defeats the convenience of the plea by mail, but at least it allows a person to see the actual allegations to which they are admitting. The Minnesota Senator Larry Craig is an example of someone who plead guilty to a disorderly conduct by mail and was unsuccesful in getting the plea vacated. He wound up giving up his senate seat.
Although it is more convenient and cheaper in the short run to just plead guilty by mail and send in the 25 bucks, I would recommend to my clients that they spend the extra time and money and have their New York attorney obtain and review the summons before admitting to whatever the summons alleges that the client did. After all, these summons will become public records after a guilty plea, available to background checking companies or anyone with the persons correct name and date of birth, so it's sensible that a person know exactly to what he/she is admitting beforehand. Granted that there are much more serious matters than public consumption of alcohol, but a police officer could embellish the facts and allege something which casts the client in a bad light. My advice is to talk to your NY attorney before making any admissions of guilty to a public consumption of alcohol charge.