TUCUMCARI – A Tucumcari man’s five-year effort to be exonerated of charges for having an open container of O’Doul’s non-alcoholic beer in his car ran into a procedural hurdle Tuesday in 10th District Court.
Judge Albert Mitchell threw out Gary Southern’s motion to have his conviction for having an open container of an alcoholic beverage in his car set aside because it was based on a writ of coram nobis, a procedural device that has been abolished in New Mexico courts.
A writ of coram nobis would allow a court decision to be thrown out in some cases if it is based on an error in fact.
Mitchell then advised Southern that he had two options: He could appeal Mitchell’s decision of Tuesday or file a motion for a writ of habeus corpus with the court.
A writ of habeus corpus orders that a person who has been denied a liberty be brought before a court. It places the burden of proof on those denying that person liberty to justify that denial, according to statute books.
Southern, who is acting as his own attorney, said he is going to start on a new writ of habeus corpus.
Southern’s difficulty started in 2008 when a Tucumcari police officer pulled him over after observing Southern making improper lane crossings when negotiating a turn, records show.
The officer, identified as L.P. Emilio, noticed the open container of O’Doul’s and another open empty O’Doul’s container in the car, records show. Southern told the officer that he was drinking the O’Doul’s, and the officer charged Southern with having an open container of an alcoholic beverage in the car, a criminal offense under state law. He was found guilty before Municipal Judge Joe Dominguez.
Since then, Southern has made several attempts to have his case re-heard. All have been thrown out on procedural grounds, court records show.
Southern has represented himself in all the subsequent proceedings.
The definition of “alcoholic beverage” in New Mexico statutes states that an alcoholic beverage is one “containing more than one-half percent alcohol.”
According to an O’Doul’s label, the beverage contains less than one-half percent alcohol.
According to state statute, no one who is in motor vehicle shall knowingly have “in his possession or on his person … any bottle, can or other receptacle containing any alcoholic beverage that has been opened or had it seal broken or the contents of which have been partially removed” in the area occupied by driver and passengers.
Southern contends since O’Doul’s contains less than one-half of 1 percent alcohol, it does not meet the statutory definition of “alcoholic beverage,” and its presence in an open container in an occupied passenger compartment would seem not to violate state law.