Open Container Shifted Back To Criminal Offense

OCEAN CITY – Four years after making it a citation offense, the City Council threw its support this week behind a request to return an open container violation to a misdemeanor that can result in an arrest determined by the discretion of a police officer.

Last week Chief Bernadette DiPino requested the City Council consider changing an open container violation from a municipal infraction to a misdemeanor criminal offense with no discussion. This week the matter came to the council in form of a first reading of an ordinance.

“We changed this about three years ago to a civil citation thinking that might clear the load of some of these arrests,” Council President Jim Hall explained, adding that ever since that time DiPino has been asking to change it back.

For years, a violation of Ocean City’s open container law for alcoholic beverages in public areas was a criminal violation and often resulted in an arrest. In 2008, the town relaxed its open container law, changing it to a municipal infraction typically resulting in a citation and a prepaid fine.

“I didn’t agree with it when it was changed to a civil infraction,” DiPino said. “It has always been illegal to drink in public in Ocean City and it’s also illegal to possess an open container … The reason is it gives police officers a tool in their tool box to take care of problems when they are small, instead of taking care of a problem when somebody is so intoxicated from drinking that they become a victim of a crime or a suspect of a crime.”

The change will address the issue through the “broken window” theory, which is used to stop situations from becoming more serious. This has been a successful police strategy in the past.

Under the “broken window” theory, DiPino has said in the past making an open container arrest at 7 p.m., for example, might prevent the same suspect from committing a more serious crime much later in the evening or the wee hours of the next day.

“Most people who are drinking in public will commit other infractions later on and that is what is causing this, it is a public safety concern,” she said.

DiPino assured the Mayor and City Council and public that the officers are trained to use discretion when it comes to making arrests.

“They will go case by case on this … we have historically seen that there can be problems later,” she said. “It is better to take a person who is intoxicated, or is causing issues, out of the public way with the arrest of an open container as opposed to giving a citation and leaving them right where they were causing a potential problem later.”

DiPino took the opportunity to address a number of other concerns she has heard in reference to the change.

The chief said the arrests would not displace officers from patrol for a long period of time to complete paperwork.

“It is a relatively quick process for the officer,” she said.

As far as added costs to pay officers overtime while they are in court, the chief said most officers are scheduled for court for other cases so additional cases due to open container charges will not sway overtime costs by much.

“The majority of the cases for the open containers is when they go to court the people are allowed to do community service if they have a clean criminal record, and we work with the state’s attorney on that,” she said.

A question came up on if a person was causing a problem by being intoxicated in public than why the officer couldn’t make an arrest for public intoxication. The chief explained that in order to arrest an individual for public intoxication the officers have to prove that they are a danger to someone else or to themselves.

“It is very difficult to be able to prove that in court and that is why this will be able to help us,” DiPino said. “If they have a beer can in their hands, we will be able to take them for their safety as well other people in the area.”

DiPino added that people do not need to fear walking to their mailboxes with a beer in their hand.
“That is just not the way we are going to operate,” she said.

Joe Groves, spokesman for the private sector Citizens For Ocean City group and president of the Delmarva Condominium Managers Association (DCMA) spoke to the matter. He said in the last couple of weeks he has had to evict many high school graduates for their behavior.

“From a DCMA perspective, the last two weeks have been hell for us dealing with kids drinking in public and just giving citations … it just doesn’t cut it,” he said.

DiPino believes the change would assist with controlling underage drinking in public, which officers only had the authority to write citations over previously. She said the change would allow them to put a stop to it immediately.

The council voted unanimously to approve the chief’s request followed by the mayor’s approval to pass it as an emergency ordinance, which skips second reading and goes straight to law.

Ocean City police are reminding citizens the new open container violation falls under the town’s code as unlawful to possess or consume alcoholic beverages on any public street, highway, alley, sidewalk, parking lot, Boardwalk or public beach within town limits. Any violation in the law may result in an arrest.