As legislators have made clear, alcohol and motor vehicles aren’t a good mix. But state governments don’t confine their laws to drunk driving. They also prohibit other kinds of behavior involving cars and booze, like having an open alcohol container or drinking from it in a vehicle.
Open Container on the Driver’s Person
A driver having an open container is the most common alcohol-related offense where the charge isn’t DUI/DWI.
Elements of an Open-Container Violation
The elements of an open-container violation are commonly as follows:
- You drove a motor vehicle.
- You drove on any public road. (Private roads or parking lots don’t count.)
- 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.
- The container held any amount of an alcoholic beverage when the officer found it, although simply the odor of an alcoholic beverage isn’t enough.
- The seal, if any, on the bottle was broken, or the container’s contents were “partially removed.”
You can bet that a police officer will administer an alcohol test on a driver caught with an open container on his or her person; the officer will likely administer the test if he finds an open container anywhere in the passenger area.
In most states, you’ll likely be charged with the most serious offense possible. If the officer rules out DUI/DWI, an open-container violation is another way to cite you, albeit for a less serious offense. (You could be charged with both DUI and an open-container violation.)
Proving a Violation
The offense of having an open container on one’s person requires that the ticketing officer connect the open container to the person cited. The container must typically be within the control of the driver or within the driver’s reach. But, even if there are open containers in the vehicle that aren’t close to the driver or any other passenger, the police may cite the driver for a related offense: keeping an open container in the vehicle. (It’s normally a lesser violation than having the container on one’s person.)
Open Container in the Vehicle
Many states forbid driving with an open container of an alcoholic beverage in a vehicle. (In a few states, it’s legal for a passenger to drink an alcoholic beverage while the vehicle is in motion.) Although having an open container in the vehicle is a less serious offense than drinking from one, a conviction can still seriously affect your license status or insurance. (See below for the law on drivers and passengers drinking in moving cars.)
Elements of an Open-Container-Kept-in-Vehicle Violation
Common elements of this offense include the following:
- You were a driver or registered owner of a vehicle.
- You were in the vehicle.
- The vehicle was on a public road.
- 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, it’s okay if the container is in some area of the vehicle not normally occupied by the driver or passengers, but not in the glove compartment.)
- The container held some amount of an alcoholic beverage when the officer found it.
- The seal, if any, on the container was broken, or its contents were “partially removed.”
(There may be an exception where the container is located within a certain area of a motor home or camper.)
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. About the only valid defense for the driver is that he or she had no reason to know the passenger had the open container.
Example: You, the driver, and your friends are on the way to the beach with a few unopened six-packs 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. Your defense is that you didn’t have any reason to know your passenger made that stupid move.
Drinking in the Vehicle
Every state (except Mississippi) forbids drivers—and most states forbid passengers—from drinking any alcoholic beverage in a moving motor vehicle. (Even in Mississippi, many cities and counties have their own laws on the possession of alcoholic beverages.) (Miss. Code Ann. § 63-11-30; also see Mo. Rev. Stat. §577.017, Tenn. Code Ann. §55-10-416, VA Code Ann. § 18.2-323.1.)
To be convicted of drinking in a vehicle, the police don’t need to prove you were drunk. And, in at least some states, it isn't necessary that the officer actually see you raise the bottle or can to your mouth and drink from it. Further, even if you evade that charge, you may still be convicted, in most states, of an open-container violation.