For five years, New Mexico resident Gary Southern has been trying to appeal his open container violation conviction.
According to Steve Hansen of the ABQ Journal, in 2008, Officer L.P. Emilio pulled Southern over and noticed two open containers in his vehicle. Southern tried to explain the beverages were O’Douls. Emilio, evidently unacquainted with the non-alcoholic beverage, charged him for violating New Mexico’s open container laws.
Municipal Judge Joe Dominguez convicted Southern and for five years Southern has been attempting to appeal his case. His attempts have been continually thrown out because of procedural issues.
New Mexico statutes define an “alcoholic beverage” as that “containing more than one-half percent alcohol.” The label on each bottle of O’Doul’s states it contains less than 1 percent alcohol by volume.
Southern, acting as his own attorney, appealed the decision arguing that the conviction was based on a writ of coram nobis, claiming an error central to the case has been made. If approved, the case would be thrown out.
However on Tuesday, District Court Judge Albert Mitchel threw out Southern’s appeal. Unbeknownst to Southern, the procedural practice known as a writ of coram nobis was abolished in New Mexico in 2009.
Southern now has two options. He can either appeal Tuesday’s ruling or he can file for a writ of habeas corpus. Undaunted despite half a decade of unsuccessful appeals, Southern has stated that he plans to pursue filing a writ of habeas corpus.
Sources: ABQ Journal