Florida/Georgia Personal Injury & Workers Compensation

...(3) An open container shall be considered to be in the possession of the operator of a vehicle if the container is not in possession of a passenger and is not located in a locked glove compartment, locked trunk or other locked nonpassenger area of the vehicle. § 316.1936(2), -.1936(3), Fla....

...ance had been superseded by a state statute and that, as a result, there had been no criminal offense to authorize a search of the vehicle. In 1988, the Florida Legislature created a statewide open container law. Ch. 88-22, Laws of Fla. (codified at § 316.1936, Fla. Stat. (Supp. 1988)). The statute became effective October 1, 1988, and makes an open container violation a noncriminal moving traffic violation. § 316.1936(6), Fla. Stat. (1989). However, the statute also permits a county or municipality to adopt an ordinance which imposes more stringent restrictions on the possession of alcoholic beverages in vehicles than those imposed by this section. § 316.1936(7), Fla....

...Local governments are authorized to create additional traffic regulations in limited circumstances, but chapter 316 does not appear to permit local governments to criminalize conduct which the state has expressly declared to be noncriminal. § 316.008, Fla. Stat. (1989). Interpreting section 316.1936 within the context of chapter 316, we are convinced that the legislature did not intend subsection 316.1936(7), which allows local governments to adopt "more stringent restrictions," to include an increase in penalty or a shift to criminal sanctions for conduct already restricted by the state statute....

...98-23471 grew out of an incident which took place in October 1998. This time Lennear was a passenger in a moving vehicle, which was properly stopped because the driver had in hand an open container with an alcoholic beverage inside. This is a violation of section 316.1936 [6] and a lawful traffic stop ensued....

...AFFIRMED, in part; REVERSED in part; REMANDED. GRIFFIN and SAWAYA, JJ., concur. NOTES [1] §§ 893.03(2), 893.13(6)(a), Fla. Stat. (1997). [2] §§ 893.03(2)(a)4, 893.135(1)(b), Fla. Stat, (1997). [3] § 843.02, Fla. Stat. (1997). [4] A state statute, § 316.1936(2)(a), prohibits possession or consumption of alcoholic beverages in vehicles which are in operation. [5] State v. Winters, 346 So.2d 991 (Fla.1977). [6] Section 316.1936(2)(a) provides: It is unlawful and punishable as provided in this section for any person to possess an open container of an alcoholic beverage or consume an alcoholic beverage while operating a vehicle in the state or while a passenger in or on a vehicle being operated in the state....

...Like the previous pairing, this pairing does not run afoul of the single homicide rule. To establish the crime of fleeing or eluding causing serious bodily injury or death, the State must prove that the defendant actually caused serious bodily injury or death. § 316.1936(3)(b)....

following the one at issue here. See Fla. Stat. § 316.1936 (“Possession of open containers of alcoholic

Activated with High Speed or Reckless Driving) § 316.1936(3)(a), Fla. Stat. To prove the crime of

...316.193 and that the person had a blood-alcohol level or breath-alcohol level of 0.08 or higher, the department shall suspend the person’s driver’s license pursuant to subsection (3).' . § 316.089, Fla. Stat. (1997). . § 562.111, Fla. Stat. (1997). . § 316.1936, Fla....