Open Container on Driver’s or Passenger’s Person
This is the most common alcohol-related offense where the driver is not charged with DUI/DWI. Most state laws say something like this:
No person shall have in his or her possession, while driving a motor vehicle upon a highway, any bottle, can, or other receptacle containing any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed.
Elements of an Open Container Violation
The elements of this violation are all of the following:
1. You drove a motor vehicle.
2. You drove on any public road or “highway.” (Private roads or parking lots don’t count.)
3. You kept a container, such as a bottle, can, or glass, on your person, which means you held it in your hand, kept it within your reach, or kept it in a pocket or purse.
4. The container held any amount of an alcoholic beverage when the officer found it, although simply the odor of an alcoholic beverage is not enough, and
5. The seal, if any, on the bottle was broken, or the container’s contents were “partially removed.”
You can bet, in most states, if an officer finds an open container in your vehicle, you will be charged with the most serious offense possible. If the officer rules out DUI/DWI, an “open container” violation is a way to cite you for a less-serious offense.
This offense requires that the ticketing officer connect the open container to the person cited. The open container must be within the control of the driver, or within the driver’s reach. If there are open containers in the vehicle, but not close to the driver or any other passenger, the driver may still be cited for keeping an open container in the vehicle.
If you are cited for having an open container on your person, and you have no good defense, it may be worth attempting to negotiate accepting a lesser violation, like simply having an open container in your vehicle.
When a passenger has an open container in the vehicle, both the passenger and the driver can be cited: the passenger for having or drinking from an open container, and the driver for allowing an open container in the vehicle. The driver’s only valid defense is that he or she had no reason to know the passenger had the open container.
You and your friends are on the way to the beach with a few unopened sixpacks of beer. Unbeknownst to you, one of your friends in the back seat can’t wait and quietly opens a can of beer before you get there. When an officer pulls you over for an expired registration, he notices the open beer can in the back and tickets you, the driver. Your defense is that you didn’t have any reason to know your passenger made that stupid move.
Open Container Kept in Vehicle
Almost all states forbid driving with an “open container” of an alcoholic beverage in your vehicle. In a few states it is legal for a passenger, but not the driver, to drink an alcoholic beverage while the vehicle is in motion. Although having an open container is a less-serious offense than drinking from one, a conviction can still seriously affect your license status or insurance.
Most state “open container” laws say something like this:
It is unlawful for the registered owner of any motor vehicle, or the driver, if the registered owner is not then present in the vehicle, to keep in a motor vehicle when the vehicle is upon any highway, any bottle, can, or other receptacle containing any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed, unless the container is kept in the trunk of the vehicle, or kept in some other area of the vehicle not normally occupied by the driver or passengers if the vehicle is not equipped with a trunk. A utility compartment or glove compartment shall be deemed to be within the area occupied by the driver and passengers. This section shall not apply to the living quarters of a motor home or camper.
Elements of an Open Container Kept in Vehicle Violation
The elements of this offense are all of the following:
1. You were a driver or owner of a vehicle.
2. You were in the vehicle.
3. The vehicle was “upon any highway,” but not necessarily driven by the registered owner.
4. There was a container, such as a bottle, can, or glass somewhere in the vehicle other than the trunk. (For vehicles without trunks—such as pickups and hatchbacks, the container must be “in some area of the vehicle not normally occupied by the driver or passengers,” but not in the glove compartment.)
5. The container held some amount of an alcoholic beverage when the officer found it.
6. The seal, if any, on the bottle, etc., was broken, or its contents were “partially removed,” and
7. The container was not in the living quarters of a motor home or camper.
About the only real defense to this is the mistake-of-fact defense that says you didn’t know the open container was in the vehicle. This is justified only if a passenger really did open a bottle or can without your knowledge (especially if that person will come to court and say so).
Drinking in Vehicle
Every state forbids drivers—and most states forbid passengers—from drinking any alcoholic beverage in a moving motor vehicle. You can be guaranteed that a police officer will administer an alcohol test on a driver caught with an open container on his or her person, and will probably administer the test if he finds an open container anywhere in the passenger area.
Even if you pass that test, you are not out of the woods. Every state has a law allowing you to be charged with drinking in a vehicle, even if you pass the sobriety test. However, the officer must be able to testify that he or she actually saw you raise the bottle or can to your mouth and drink from it. If your breath smells of alcohol, that alone is no proof you drank while driving the vehicle, even if you were carrying an open container. After all, you could have had a drink before you got into the car. Even so, you can still be convicted, in most states, of the lesser offense of having an open container in your vehicle.