Open Container Laws

Open container laws vary considerably from state to state, and many localities have additional laws.

Open container laws prohibit the possession or consumption of open alcoholic beverages in passenger compartments of vehicles. Such laws are intended to discourage driving under the influence (DUI). For information on other alcohol-related crimes, including driving while intoxicated, see Alcohol Related Crimes.

As a part of the federal Transportation Equity Act for the 21st Century, states were urged to adopt open container laws banning the possession or consumption of alcoholic beverages in vehicles. Not all states complied, and those that did not are ineligible for certain federal highway funds. Some states allow open containers in vehicles and some states even allow passengers—but not drivers—to consume alcohol inside a car. For example, there is no state law in Missouri that prohibits vehicle passengers from consuming alcohol. However, even where there is nostate law on open containers, towns and counties may have their own open container prohibitions.

Where lawmakers have enacted open container laws, the specifics vary. Most ban possession of any open container in the passenger compartment of a private vehicle. Some ban consumption. For example, in a state that bans possession of open containers, if a passenger is holding, but not drinking, an open bottle of beer, that is sufficient to violate the open container law.

Public and Private Property

Generally, open container laws do not apply to vehicles on private property, but only to vehicles on public roads and lots. For example, in Nebraska, a person who has an open container in a vehicle that is parked on a residential driveway has not broken the law, even if the vehicle is blocking a public sidewalk. (Neb. Stat. Rev. Ann. § 60–6,211.08; State v. McCave, 805 N.W.2d 290 (Neb. 2011).)

Open Containers on the Street

Open container laws apply in places other than having drinks in vehicles. In most localities, people are prohibited from having open containers on public streets or other public places. There are some notable exceptions, such as the city of New Orleans and the Las Vegas Strip. These localities allow people over the age of 21 to walk the streets, drinks in hand (although there are often other restrictions, such as bans on glass bottles).

When Is a Container Open?

A container is open if the original seal is broken, or the beverage has been poured into a glass or cup. In some states, in order to be “open” some portion of the contents must have been removed. Some states have very specific definitions of open containers. For example, in Florida, a partially full bottle of wine purchased at a restaurant and re-sealed by restaurant staff is not an open container. (Fla. Stat. § § 564.09, 316.1936.) In Louisiana, a frozen daiquiri (which can be purchased at a drive-thru) is considered closed as long as the lid stays on, and the straw has not been inserted into the lid. (La. Rev. Stat. § 32:300.)

Strict Liability

Generally, open container laws are not strict liability offenses. This means that the defendant must know that the container is open and contains an alcoholic beverage. (Note that in order to break the law the defendant needonlyknow that the container is open; a defendant who does not realize that possession of an open container is illegal is still in violation of the law.)

For example, a defendant who can show that the the original seal was broken because it was defective should be able to escape conviction. What if a passenger smuggles an almost empty beer bottle into the car? In some states, only the passenger could be convicted. In other states, both the driver and the passenger could be charged with possessing an open container, but the driver should be able to avoid conviction by showing that he or she did not know that there was an open container in the vehicle. For example, if the passenger got into the car before the driver and passed out in the backseat, so that the bottle could not been seen, the driver might be able to avoid a conviction.

Exemptions

Usually, open container laws do not apply to a party bus, limousines, and the living quarters of recreational vehicles. Beverages in the trunk or in areas of the vehicle not accessible to passengers are also exempted. State laws vary on whether beverages located in the glove box violate the open container law.

Penalties

While state laws vary, open container violations are often infractions (punishable by a fine and possibly community service, but no jail time) or misdemeanors (punishable by a fine and, in most states, up to one year jail time). Minors may be punished more severely. Often, infractions are not considered criminal convictions for the purpose of criminal records searches, and defendants are not entitled to the same constitutional rights guaranteed in criminal cases.

Obtaining Legal Assistance

There is quite a bit of variation in state laws on open containers. If you are charged with an open container violation, you should contact a local criminal defense attorney. An experienced attorney will be familiar with the laws in your state and will be able to help your present the strongest possible defense and protect your rights in court.

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