O.C.G.A. § 40-6-253 (2019)

Annotations

Code Commission notes. - Both Ga. L. 1991, p. 1058 and Ga. L. 1991, p. 1587 enacted a new Code Section 40-6-253. Pursuant to Code Section 28-9-5, in 1991, the legislation enacted by Ga. L. 1991, p. 1058

was renumbered as Code Section Law reviews. - For note on the 1991 enactment of this Code section, see 8 Ga. St. U.L. Rev. 129 (1992).

JUDICIAL DECISIONS Punishment for violation of O.C.G.A. § 40-6-253 is governed by its own penalty provision, not by O.C.G.A. § 17-10-3, the general misdemeanor statute; thus, the trial court erred in sentencing the defendant convicted of a violation to 12 months probation. Chastain v. State, 231 Ga. App. 225, 498 S.E.2d 792 (1998). Abuse of discretion. - In a civil action, the court did not abuse the court’s discretion in admitting evidence that the defendant was holding a glass of wine at the time of the accident. Boyer v. Brown, 240 Ga. App. 100, 522 S.E.2d 692 (1999). Negligence per se. - In a civil action, the court did not err in instructing the jury that a violation of O.C.G.A. § 40-6-253 was negligence per se. Boyer v. Brown, 240 Ga. App. 100, 522 S.E.2d 692 (1999). Sufficient evidence of venue. - Even though a chase involving the defendant might have ended in another county, because the offense of eluding the officers was complete at the moment the defendant refused to stop, despite the visual and audible signals requiring such, the defendant’s act of continuing the chase into that second county did not destroy venue in the county where the chase began; moreover, after the defendant wrecked the vehicle involved in the chase in the second county, the evidence gathered at the scene was sufficient to support the inference that the open beer containers were in the vehicle when the defendant was observed driving the vehicle moments earlier in the county where the chase began. Mack v. State, 283 Ga. App. 172, 641 S.E.2d 194 (2007). Motion to suppress evidence obtained from Selective Traffic Enforcement Program roadblock. - In defendant’s trial for driving under the influence under 18 U.S.C. §§ 7 and 13 and O.C.G.A. § 40-6-391 and an open container violation under O.C.G.A. § 40-6-253, a motion to suppress evidence obtained as a result of a Selective Traffic Enforcement Program roadblock was denied because the roadblock reasonably fit within the Fourth Amendment constraints. Implied consent protections did not apply to field

sobriety tests because the defendant was not under arrest at the time such tests were performed. United States v. Howard, No. CR208-09, 2008 U.S. Dist. LEXIS 72916 (S.D. Ga. Sept. 24, 2008). Trial court did not err in allowing the sergeant and the arresting officer to testify that they observed an open container that was full of ice cubes and a dark liquid with the distinct odor of alcohol in the defendant’s car despite the state’s failure to preserve the actual open container because, pretermitting whether the open-container evidence possessed an apparent exculpatory value so as to make it constitutionally material, the defendant did not show that the police acted in bad faith in failing to preserve the container. Monroe v. State, 340 Ga. App. 373, 797 S.E.2d 245 (2017). Alcohol container outside of vehicle sufficient. - Fact that an open container of malt liquor was sitting in the snow directly outside the driver’s door of the defendant’s vehicle was sufficient to support the conviction for possessing an open container. Simmons v. State, 321 Ga. App. 743, 743 S.E.2d 434 (2013). Evidence sufficient for conviction. - Defendant’s admission against interest that the defendant was drinking while driving, coupled with proof that a glass smelling of alcohol was hidden under the passenger seat and the carpet was wet where the defendant had poured out the defendant alcoholic beverage, was sufficient for conviction under O.C.G.A. § 40-6-253. Geoffrion v. State, 224 Ga. App. 775, 482 S.E.2d 450 (1997). When the totality of the circumstances, including the location of the car and the defendant’s position in the car, indicated that the defendant was in actual physical control of the vehicle and in possession of an open container of an alcoholic beverage, even though the defendant was not seen driving the car, there was sufficient evidence that the police officers’ act of questioning the defendant was more than a consensual inquiry and was within the scope of the officers’ official duties so that a jury could reasonably determine that the defendant’s use of a false name was a

violation. Wynn v. State, 236 Ga. App. 98, 511 S.E.2d 201 (1999). Although the defendant argued the state failed to prove that any open container in the car actually contained alcohol, the appellate court found the jury could have concluded from an officer’s testimony that the ‘‘open bottle of beer’’ on the front seat was an open bottle containing beer pursuant to O.C.G.A. § 40-6-253(a)(2)(A). Yates v. State, 263 Ga. App. 29, 587 S.E.2d 180 (2003). Evidence was sufficient to support the defendant’s conviction for having an open container of alcoholic beverage in the vehicle because, even though the officer’s testimony established that the bottle in the defendant’s car was empty, the defendant’s statement to the officer that the defendant consumed the beer while driving was proof that the bottle contained an alcoholic beverage. Kalb v. State, 276 Ga. App. 394, 623 S.E.2d 230 (2005). Convictions against the defendant for driving under the influence of alcohol to the extent that it was less safe for the defendant to drive and possession of an open container of alcohol, in violation of O.C.G.A. §§ 40-6-253(b)(1)(B) and 40-6-391(a)(1), were supported by sufficient evidence when police officers who had responded to a call observed the defendant driving into a parking lot with a damaged car, the defendant screamed and cried when asked what had happened and if the defendant was okay, there was a strong odor of alcohol, the defendant had bloodshot and watery eyes, admitted to having had ‘‘too many,’’ and the defendant refused to take field sobriety tests or a chemical breath test; further, a search of the vehicle after the defendant’s arrest revealed open bottles of wine cooler. Crenshaw v. State, 280 Ga. App. 568, 634 S.E.2d 520 (2006). Defendant’s argument that the evidence was insufficient to support the defendant’s open container conviction pursuant to O.C.G.A. § 40-6-253 because there was no evidence presented during the trial that there was an open container in the passenger compartment of the defendant’s truck was disingenuous; the defendant requested a bench trial and stipulated to evidence presented at the motion hearing,

which included a witness’s testimony that the witness saw an opened beer can in the passenger compartment of the defendant’s truck. Brogdon v. State, 299 Ga. App. 547, 683 S.E.2d 99 (2009), aff ’d, 287 Ga. 528, 697 S.E.2d 211 (2010). By showing circumstantially that each defendant had equal access to a cooler in the backseat, the state was able to support the state’s theory that all of the defendants were guilty of joint constructive possession of the open containers. Davenport v. State, 308 Ga. App. 140, 706 S.E.2d 757 (2011). Arresting officer’s testimony that police located two partially filled bottles of vodka and one partially filled bottle of tequila in a defendant’s vehicle, along with photographs of the bottles showing the bottles to be labeled vodka and tequila bottles, was sufficient to authorize the jury to find that the partially-filled bottles held alcohol. Ayiteyfio v. State, 308 Ga. App. 286, 707 S.E.2d 186 (2011). Sufficient evidence supported the defendant’s conviction for possession of an open alcoholic beverage container in the passenger area of a motor vehicle, while operating the vehicle, because the defendant drove into a tree while operating a vehicle containing three children as passengers, resulting in a fatality and other serious injuries, and a clear plastic bottle containing 77 proof alcohol was found on the floorboard. Crowe v. State, 314 Ga. App. 527, 724 S.E.2d 831 (2012). Evidence was sufficient to convict the defendant of driving under the influence of alcohol to the extent that the defendant was a less safe driver, speeding, failure to maintain lane, and driving while possessing an open container of an alcoholic beverage when the evidence showed that a sergeant pulled over the defendant’s car for speeding and failing to maintain the defendant’s lane, another officer observed six out of six clues of impairment in the officer’s horizontal gaze nystagmus evaluation of the defendant and smelled the odor of an alcoholic beverage coming from the defendant’s mouth, and, after the defendant’s arrest, the sergeant searched the defendant’s car and found a glass filled with ice and a dark liquid that smelled like an alcoholic beverage. Monroe v.

State, 340 Ga. App. 373, 797 S.E.2d 245 (2017). Excessive sentence. - Sentence imposed on an open container conviction was vacated because O.C.G.A. § 40-6-253(c) provided that the maximum fine for violating the statute was not to have exceeded $200, and the defendant was sentenced to serve 12 months on this count. Brogdon v. State, 299 Ga. App. 547, 683 S.E.2d 99 (2009), aff ’d, 287 Ga. 528, 697 S.E.2d 211 (2010). Out of time appeal following guilty plea rejected. - Following guilty pleas to first degree homicide by vehicle and possession of an open container, the trial court properly denied the defendant’s motion for an out-of-time appeal, finding that

the defendant failed to show that the right to an appeal was frustrated by ineffective assistance of counsel since the record showed that the attacks on the guilty plea in the out-of-time appeal were without merit; thus, trial counsel could not have been ineffective in failing to pursue such an appeal. Martin v. State, 329 Ga. App. 10, 763 S.E.2d 363 (2014). Cited in Welch v. State, 263 Ga. App. 70, 587 S.E.2d 220 (2003); Hernandez v. State, 297 Ga. App. 177, 676 S.E.2d 795 (2009); Sommese v. State, 299 Ga. App. 664, 683 S.E.2d 642 (2009); Jones v. State, 319 Ga. App. 520, 737 S.E.2d 318 (2013); State v. Hasson, 334 Ga. App. 1, 778 S.E.2d 15 (2015).

OPINIONS OF THE ATTORNEY GENERAL For an update of crimes and offenses for which the Georgia Crime Information Center is authorized to collect and file identifying data, see 1991 Op. Att’y Gen. No. 91-35. Jurisdiction over possession of open container of alcohol in vehicle. - In counties in which there is a state court, both the state court and the magistrate court of the county possess concurrent jurisdiction over the prosecution of individuals charged with violating a county ordinance prohibiting the posses-

sion of open containers of alcohol while operating a motor vehicle. 1992 Op. Att’y Gen. No. U92-3. Construction with other law. - Enforcement provisions of O.C.G.A. § 40-6-253 remain in effect including for bottles of wine resealed pursuant to O.C.G.A. § 3-6-4; the 2008 changes in the law were not intended to and did not authorize carrying open alcoholic beverage containers in the passenger area of vehicles. 2008 Op. Att’y Gen. No. 2008-7.

RESEARCH REFERENCES ALR. - Validity, construction, and application of open container laws, 97 A.L.R.6th 653.