Open Container Laws

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 What Is an Open Container Law?

An open container law is what makes it a criminal offense to have an open container of alcohol inside the passenger compartment of a motor vehicle. Open container laws are considered to be an especially important tool in the fight against drunk driving. In fact, according to the National Library of Medicine, with the enforcement of open container laws, drunk driving is reduced by 17.6%.

Open container violations are generally defined as possessing an open container of an alcoholic beverage in the passenger area of a moving vehicle. This includes an area of the vehicle that is considered to be “readily accessible” to the driver or a passenger, including consoles and glove compartments as was previously mentioned.

Such violations apply to alcoholic beverages of all types, and generally refer to vehicles that are located on public roads and highways.

How Many States Have Open Container Laws Which Meet Federal Requirements?

According to the National Highway Traffic Safety Administration (“NHTSA”), all but ten states have open container laws conforming to the federal standards. The Transportation Equity Act for the 21st Century (“TEA-21”) provides that states are given incentive grants if they follow the federal standard that bans alcoholic containers in vehicles. As far as the federal standard, TEA-21 provides that the federal standard is a ban on the presence of any open containers of any alcoholic beverage in a vehicle’s passenger area.

In many states, a violation of an open container is considered to be only an infraction with a fine. However, if the driver or a passenger is under the legal age of 21 and is caught with an open container of alcohol, the criminal punishment can be considerably more severe. Additionally, many drivers could also be charged with a DUI if the open container was with the driver at the time of driving.

Although open container laws vary from state to state, state laws generally state that an individual cannot operate or drive a motor vehicle with an open alcoholic beverage, even if the alcohol has not been consumed by the driver or passenger.

In order to fully conform with the federal standard, a state’s open container law must meet six standards:

  • The state laws must prohibit possession of any open alcoholic beverage container, as well as the consumption of any alcoholic beverage in a motor vehicle;
  • The state laws must apply to all types of alcoholic beverages;
  • The state laws must define the passenger area of any motor vehicle as the area designed to seat the driver and passengers while the motor vehicle is in operation, as well as any area that is readily accessible to the driver or a passenger while in their seating positions, which includes the glove compartment;
  • The state laws must apply to all drivers and passengers in the motor vehicle;
  • The state laws must apply to a motor vehicle while it is located anywhere on a public highway, or the shoulder of the public highway; and
  • The state laws must specify that officers have the authority to stop a vehicle in order to enforce the open container law.

Will Open Container Ticket Affect Insurance?

In short, yes, an open container ticket will likely impact the driver’s insurance. Importantly, insurance regulations vary from state to state. This means that the impact of an open container ticket may also differ from state to state, as some states may not consider it a significant factor.

However, if a person receives an open container ticket from violating laws related to carrying an open alcoholic beverage container in a vehicle, they may receive points on their driving record. Adding points on one’s driving record may then result in an insurance company increasing the individual’s premiums due to evidence of the open container infraction.

Insurance companies will also engage in risk analysis when determining a driver’s insurance rate. As such, any traffic violation, such as evidence of recent open container violations, could be used as an indicator of risky behavior. This could even impact a motorist’s ability to renew their policy if their insurance company notices recent open container violations.

What Are the Defenses to Open Container Charges?

There are many different defenses to an open container charge. However, open container charges are often considerably difficult to defend against, as many open container cases involve obvious violations.

Examples of common defenses that may be raised by a person that receives an open container charge include:

  • Improper Stop: If the reason for the initial traffic stop that led to the open container violation lacks adequate justification, then the defendant may raise that as an affirmative defense to challenge the legality of the stop;
  • Improper Search: An officer must have legal grounds to search your vehicle. In other words, if the search was conducted without proper cause, such as by lacking probable cause, then the defendant may use that as an affirmative defense to the infraction.
    • Reasonable suspicion generally exists when the driver slurs their speech or smells of alcohol. Then, if there is reasonable suspicion, the driver and occupants may be briefly detained.
    • Importantly, the 4th Amendment prohibits unreasonable searches and seizures, including when a person has been detained in a traffic stop;
  • The Vehicle IS Primarily Used as a Rideshare Service: If the vehicle’s owner primarily serves as a rideshare operator, such as an Uber, Lyft, or taxi driver, then they could use that as a defense for an open container being left in their vehicle;
  • Residential Use of the Vehicle: If the vehicle is primarily used as a motorhome or camper, and the open container was found in the living quarters of the motorhome, camper, or recreational vehicle, then the owner might be exempt from the law;
  • Location of Container: If the container was in a non-passenger area, such as in the bed of the truck or trunk, then the defendant could assert that as a defense;
  • Type of Beverage: If the beverage was not truly classifiable as an alcoholic beverage per the state law, then it is not a violation;
  • Location of Operation: If the car was not in operation on a public highway, or in an area subject to the regulation, then it is not likely a violation in most states; and/or
  • Sealed Container: If the container’s seal was intact, challenging the allegation that it was an open container is a complete defense.

What Are Recent Updates Regarding Open Container Laws?

As a result of the Covid-19 pandemic impacting businesses that relied on in-person sales, especially restaurants and bars many establishments began serving alcohol-to-go as part of takeout and delivery orders. During the pandemic, 32 states relaxed alcohol regulations and allowed bars and restaurants to begin to sell alcohol-to-go. Because of this many states began to change their alcohol laws.

Out of the 32 states that gave temporary approval for alcohol-to-go sales as a means of helping restaurants and bars during Covid-19 relief efforts, half of those states made the changes on their alcohol laws permanent. Texas is one example of a state that made alcohol-to-go sales permanent quickly.

The Texas law provides that beer or wine must be in original packaging provided by the manufacturer, and drinks containing hard liquor must be in a “tamper-proof” container which is:

  • A container that, once sealed, clearly shows whether it has been opened;
  • A closed cup, which means
    • Placed into a bag that has been sealed with a zip tie or staple;
    • Sealed with shrink wrap or similar seal; or
    • Sealed by other methods approved by rule of the Texas alcohol commission.

As can be seen, the elements of an open container charge still apply in alcohol-to-go orders, as there will be some form of seal on the alcohol to prevent it from being opened when handed to the consumer. However, with the increased availability of alcohol, it is not hard to imagine that a consumer may be tempted to open the container.

Do I Need a Lawyer?

As can be seen, open container violations can result in citations, and in some cases, misdemeanor charges. As such, if you have been charged with an open container violation, it is in your best interests to consult with an experienced DUI/DWI lawyer.

An experienced attorney can help you understand your state’s particular laws on open containers, as well as help you timely and properly raise any affirmative legal defenses that may be available in your case. If successful, the legal defense may reduce or completely dismiss the charges being brought against you. Finally, an attorney can also represent you at any in person criminal proceeding.


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