OPEN CONTAINER and INVISIBLE DRUG POSSESSION



Everyone is familiar with the prohibition against drunk driving.  In Idaho, if you are in your vehicle with the motor running, or the key in the ignition, and you are found to have a blood alcohol level of .08 for adults or .02 for minors, you can be found guilty of driving while intoxicated.

A companion crime of a DUI is an "open container" violation.  In Idaho, the law states that you cannot be driving a vehicle with an unsealed container of alcohol in the passenger section of the car.  

Having been driven home from high school by a friend who resumed chugging a half-empty bottle of vodka during the drive home, I can understand why it is not a good idea to have an open container of alcohol

Sounds easy enough to understand, right?  

The problem arises when an officer stops a vehicle and then notices an empty beer can in the passenger section.  Is that a violation of the prohibition against having an open container of alcohol in the vehicle?

This arises more often than you might think. 

Idaho Code section 23-505 provides that no person "shall break open, or allow to be broken or opened any container of alcoholic liquor, or drink, or use, or allow to be drunk, or used any alcoholic liquor therein while the same is being transported."

There are people in Idaho who have been charged with violating this statute for merely being stopped and having an empty bottle or can of an alcoholic beverage in their vehicle.  

I don't believe this is proper.  If the container is empty, there should be no violation for transporting it in that state.  The half-full containers clearly violate the statute, but I believe that you are not violating the law by transporting empty bottles or cans.

On a similar note, people with drug paraphernalia are often charged with possession of the substance that has been smoked from their pipe or snorted from a tube, even though the pipe or tube appears to the naked eye to be empty.   This is a major point:  possessing paraphernalia is a misdemeanor, while possessing most drugs other than marijuana is a felony.

I maintain that if you possess drug paraphernalia that contains a trace of a drug, such as cocaine or meth, but the existence of that drug is not readily identifiable to the naked eye.  I once had a case of a woman whose friend snorted cocaine through a straight straw and then stuck it in her friend's purse.  At a traffic stop, the woman was searched and the straw was identified. The police officer checked the inside of the straw and was able to obtain dust from the inside of that straw.  The woman was charged with possession of cocaine as well as possession of drug paraphernalia.  

That case was resolved without trial, but I believe the woman had a strong defense to possession of cocaine. No member of a jury, I am sure, would convict a person of cocaine possession when the presence of cocaine was not apparent to the naked eye.  Possession of a substance must be knowing possession.  It is never enough for the substance to be present without the person knowing an illegal substance is in paraphernalia he possesses.



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