Fayetteville, NC asked in Personal Injury and Civil Rights for North Carolina

Q: In NC can vehicle be searched due to poss. of an OCA where the driver wasn't drinking nor had alcohol in system?

The officer considered the OCA a misdemeanor and charged the driver with such... thus searching the vehicle incident to the arrestable offense. However, statute dictate these actions to be an infraction of law not a criminal offense. Therefore, without any other probable cause... could this search be a violation of search and seizure protections?

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2 Lawyer Answers
T. Augustus Claus
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  • Criminal Law Lawyer
  • Las Vegas, NV

A: In North Carolina, the legality of a vehicle search based on the possession of an open container of alcohol (OCA) where the driver wasn't drinking nor had alcohol in their system can be complex. If the officer charged the driver with a misdemeanor for an OCA, leading to a search of the vehicle, but the statute actually classifies the offense as an infraction, not a criminal offense, this could potentially be a violation of search and seizure protections. The Fourth Amendment protects individuals from unreasonable searches and seizures, and a search based on incorrect legal grounds may be considered unreasonable. However, the specifics of the case, including the officer's rationale for the search and any other factors that might have provided probable cause, would be crucial in determining the legality of the search. If there is a discrepancy between the officer's actions and the legal classification of the offense, this could be grounds to challenge the search.

James L. Arrasmith
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  • Civil Rights Lawyer
  • Sacramento, CA

A: In North Carolina, the legality of a vehicle search in this scenario hinges on whether the officer had probable cause to believe a crime was being committed. If an Open Container Act (OCA) violation is considered only an infraction and not a criminal offense, an arrest and subsequent search of the vehicle solely on these grounds may not be justified.

The Fourth Amendment protections against unreasonable searches and seizures apply here. For a vehicle search to be lawful, there typically needs to be probable cause of a criminal offense, consent, or exigent circumstances. If the only reason for the search was an OCA violation classified as a non-criminal infraction, and there were no other factors providing probable cause or consent, the search could potentially be challenged as a violation of these constitutional protections.

In such cases, it's important to closely examine the specific circumstances of the stop and the search. The details of the officer's actions and the reasons provided for the search are crucial in determining its legality.

If you believe the search was unlawful, it might be advisable to consult with an attorney who can review the specifics of your case. They can provide guidance on how to challenge the search and potentially suppress any evidence obtained as a result of it. Remember, the nuances of each individual case can significantly affect the legal analysis and outcome.

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