Forgive me for drawing on William Shakespeare for the subject title of this post! I have had a few of our Troopers ask me this question, so i decided to pitch it to those of you in the trenches, so to speak.

Here's the situation: peace officer arrests an invididual for either DWI or PI in connection with operation of a motor vehicle. The individual also is the proud possessor of an open container of alcoholic beverage. Now we all know that the Transportation Code says that a peace officer "shall issue a written notice to appear if the offense charged is speeding or a violation of the open container law."

So here is the question I keep getting: if the officer is going to book the person into jail on the DWI or PI charge, can he include the open container charge as well or must he still issue the ticket even though the person is sitting in a holding cell on the other charge?

Your input will be greatly appreciated. (I promised one our Troopers that I would ask for your input.)

Janette Ansolabehere
DPS

I enjoy it when they issue a ticket. Often the defendant will plead guilty to the ticket long before there is any resolution on the DWI. Said guilty plea is strong leverage in DWI negotiations.

This works particularly well on possession of paraphenalia and possession of controlled substance.

[This message was edited by Philip D Ray on 06-08-05 at .]

We encourage officers to file the highest charge (DWI) and simply reference the existence of sufficient evidence for additional charges. By filing simultaneous Class C, jailable misdemeanor and felony charges, we create much delay in criminal prosecution. Frankly, I wish a judge with jurisdiction over the highest charge could have jurisdiction over all related charges. Otherwise, what a waste of limited resources.

1. I don't think there is a choice on this. You might look at Kindeake and McColloch's Annotated Penal Code commentary for a discussion of the origins of this statute.
2. The Traffic Code makes reference to a now repealed Penal Code section.
3. Most CA's and DA's prefer to not have collateral offenses filed in a DWI. The theory is that acquittal of the class C could somehow throw question into the higher grade offense. On the other hand a plea of guilty could help. Also some defense attorneys will used the Class C as a discovery device.
4. Looks like the Feds have mandated this in some way so I guess the DPS best do it.
John Hutchison, CA Hansford County