Five-Year Fight Over Open Container of O’Doul’s Will Continue

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A New Mexico man says he will get started on a writ of habeas corpus now that a judge has dismissed his latest request to set aside an open-container conviction. Gary Southern was convicted in 2008 of violating a law that prohibits having in a motor vehicle "any bottle, can or other receptacle containing any alcoholic beverage that has been opened…." As he has apparently been pointing out for five years now, he wasn't drinking an "alcoholic beverage," and so he would like to be unconvicted of that crime.

An officer who pulled Southern over for a lane-change violation noticed he had two open containers of O'Doul's beer in the car—also known as O'Doul's "beer" because it contains less than .5 % alcohol. Under the same chapter of the New Mexico Motor Vehicle Code, 

"alcoholic beverages" means any and all distilled or rectified spirits, potable alcohol, brandy, whiskey, rum, gin, aromatic bitters or any similar alcoholic beverage, including all blended or fermented beverages, dilutions or mixtures of one or more of the foregoing containing more than one-half percent alcohol but excluding medicinal bitters….

(Emphasis added.) The report in the Albuquerque Journal doesn't say how Southern got convicted of this in the first place, unless maybe he didn't have an attorney (he's currently representing himself) or his attorney didn't think of this. It seems pretty straightforward. Somebody has since clued into the argument, of course, but now Southern seems to be having trouble finding the right procedural device to get the charge thrown out. I'm assuming his time to appeal came and went, leaving him stuck with seeking post-trial relief.

The report says that Southern filed a petition for a "writ of coram nobis," an old-school writ that allowed a court to correct the record in some cases if there was an error of fact (it dates back to before there were such things as appeals and motions for new trial). For example, a federal court granted one of these writs in 1984 to void the conviction in Korematsu v. United States (the internment case), on the grounds that the government knowingly submitted false information to the court in 1944. But the writ is so old-school that many states don't have it anymore, including New Mexico. That's why this petition was denied (although it doesn't really seem to fit anyway).

The judge told Southern he could either appeal the decision denying the writ or go back and file for a writ of habeas corpus, and he's going to do the latter. That doesn't seem to fit, either, because you use that when somebody's in custody, which he is not. Well, he didn't break the law, but maybe at this point he should have a few (real) beers and let it go?