New York City Open Container of Alcohol Violations

Posted By Galluzzo & Arnone LLP || 16-Mar-2010

This post will provide the basics on the oft-cited provisions of the New York City Administrative Code dealing with the possession of open containers of alcohol on the streets of New York City. Simply put, it is illegal to possess open containers of alcohol in public places in New York City. Found in the “Public Safety” Article of the New York City Administrative Code, section 10-125 sets forth the offense:

	§ 10-125 Consumption of alcohol on streets prohibited. a. Definitions.
	 Whenever used in this section, the following terms are defined as follows:
	 1. Alcoholic beverage. Any liquid intended for human consumption containing
	 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 duly licensed 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 the provisions 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.

This charge is oftentimes prosecuted with the use of a New York City “pink” summons which requires a person charged with such an offense to appear in court on the specified date. As is evident from the text of the code provision itself, the “public place” definition encompasses just about every conceivable public place in New York City, including parks, beaches, and malls. Another noteworthy section of the text of the statute is the “rebuttable presumption” that possession of an open container in New York evidences an intent to consume its contents. What this means is that mere possession is sufficient to prove intent unless the defendant comes back with evidence showing that the open container was possessed for another purpose. It is important to note that the factual portion of the accusatory instrument charging this offense must contain an assertion that the defendant “drank or consumed an alcoholic beverage or possessed, “with intent to drink or consume,” an open container containing an alcoholic beverage.” People v. Torres, 1 Misc.3d 126A, (App. Term. 1st Dep’t 2003). Thus, if the summons itself does not contain these words, the charge is subject to outright dismissal. Unfortunately, in New York City it is uncommon for a person charged with this offense to be given the factual portion of the summons at the time that it is issued. Most of the time that section is shown to the defendant for the first time (or his or her attorney) in court on the summons return date.

Another noteworthy decision in this area is Bankhead v. Wolfe, N.Y.L.J. Nov. 21, 2000, a civil decision decided by Judge Harkavy where the court held that “[t]he police may rightfully give a summons to petitioner or others if they have reasonable cause to believe that petitioner or any person is consuming an alcoholic beverage in an open container in public. An open bottle or can with a beer, wine or liquor label in a public place with indicia of consumption gives reasonable cause to believe that the individual consumed or is consuming alcohol in public or possessed or possesses an open container of alcohol with the intent to consume it in public.” Thus, although the officer may have a right to issue a summons based solely on the observation of the defendant in possession of a container seemingly containing alcohol because of its label, the decision left open the possibility that a summonsed person may be able to ultimately challenge the charge itself if the police did not actually test the substance in the container to determine that it did, in fact, contain alcohol.

If you have been issued a summons or otherwise been charged with possessing an open container of alcohol in New York City, you may want to consider calling anattorney who can represent you in summons court.

Categories: Summonses