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Open Container of Four Loko Leads to Conviction of Ft Worth Man

Updated: Jun 26, 2023 @ 8:42 am

Less than 1 minute Reading Time: Minutes

An open container of alcohol in a car is a red flag for a police officer. And with good reason. It is a misdemeanor under Texas law to have an open container in the passenger area of a car, regardless of whether or not the driver is legally intoxicated.

Of course, where there is an open container, the officer will also suspect the driver may be guilty of DWI and take action to obtain further evidence.

Appeals Court Upholds DWI Conviction

Despite Lack of “Overwhelming” Evidence

Take this recent case from Fort Worth, Carpenter v. State. A Texas Department of Public Safety (DPS) trooper was on patrol one afternoon. He notices a vehicle traveling about 20 miles per hour over the posted speed limit. The trooper then initiated a traffic stop.

The driver–the defendant in this case and a mechanic–told the trooper he was “speeding to remedy a mechanical problem that was causing the vehicle to overheat.”

But as the trooper questioned the defendant, he noticed an open 25-ounce can of Four Loko on the center console.

If you are not familiar with the product, Four Loko is a malt beverage that contains about 12 percent alcohol by volume–approximately three times the amount of a typical beer.

According to the trooper, the Four Loko can he observed was approximately “three-quarters empty” and still cold, which indicated it had been “recently” purchased.

Based on these observations, the trooper concluded the defendant had been drinking while driving.

Upon questioning, the defendant conceded he had been drinking the Four Loko to deal with his frustration over “attempting to diagnose the mechanical problem with the vehicle he was driving.”

The defendant’s admission prompted the trooper to administer a series of field sobriety tests. At trial, only the results of a horizontal gaze nystagmus (HGN) test clearly indicated the defendant was intoxicated. Other tests, including standard breath tests, were either inadmissible or produced inconclusive results.

Nevertheless, a jury found the defendant guilty of misdemeanor DWI and gave him a suspended jail sentence of 30 days.

On appeal, the Texas Second District Court of Appeals noted the evidence against the defendant was “not overwhelming” yet sufficient to support the jury’s verdict.

Critically, the appeals court noted, the defendant’s admission that he had (and consumed) an open Four Loko can–the alcohol equivalent of almost four beers–was evidence of “recent and substantial consumption.”

Combined with the fact the defendant was speeding and his performance on the HGN test, the appeals court said the jury could logically infer the defendant did not have the “normal use of mental or physical faculties” at the time of his arrest, which is all the state needed to show in proving a DWI charge.

Charged with DWI or an Open Container Violation?

Speak With an Experienced DWI Defense Lawyer Today!

When stopped by police for any reason, you should never admit to anything that can be used against you later in court. This is especially true when it comes to DWI and open-container charges.

If you need legal advice on how to handle such charges from a qualified Houston DWI defense attorney, contact the Law Offices of Tad Nelson & Associates today.

Houston DWI Lawyer Tad A Nelson is Board Certified in Criminal Law by the TBLS.

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