Open Alcoholic Container Attorney

What is Possession of an Alcoholic Beverage in a Motor Vehicle?

Also known as Open Container, it is a crime to knowingly possesses an open container of alcohol in a passenger area of a motor vehicle. Closed or sealed containers do not count, and opened containers that are not located in the passenger area (inside the car) also do not count. The goal of this law is to try and help protect against driver's being too tempted by an open container within arms reach -- and obviously to avoid outright drinking while driving, even if the person is well below a .08%.

Despite public perception, it IS illegal to have an open container in a parked car, or on a public street. The statute does not differential between driving, parked, on or off.


Sec. 49.031. POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE.

(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.


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What are the Punishments?

Possession of an Alcoholic Beverage in a Motor Vehicle is a Class C Misdemeanor, meaning fines of up to $500. However, if the driver is over .08% (DWI) then this offense adds mandatory jail time as part of the DWI offense, assuming there is a conviction.


Penalties for Open Container
Level of Offense Punishment
Class C Misdemeanor Not Jailable, No more than $500 fines
Class B Misdemeanor Not more than 180 days in a county jail, and/or no more than $2,000 fines

What can I expect with a Possession of an Alcoholic Beverage in a Motor Vehicle?

Aside from when an Open Container is found during a DWI arrest, there's not much to Possession of an Alcoholic Beverage in a Motor Vehicle. If the alcohol is open, within view and reach of the driver (meaning the driver had possession and knowledge), then usually the best route to go is either plea bargaining or setting up a Supression Hearing to contest whether the investigation or stop was legal.

Sometimes, officer do arrest for Possession of an Alcoholic Beverage in a Motor Vehicle when the container is either empty or even in the trunk. These issues can be contested in court, often with good results.


What if a Passenger has the Open Container, and not the Driver?

Again, despite public perception, it is illegal in Texas for a passenger to have an open container -- even if they are not driving. Perhaps the goal is again to dissuade the driver from taking sips, or to prevent a driver from simply passing the beer can to someone else when being pulled over. Whatever the reasoning, it is possible for an officer to cite a passenger, rather than the driver, for Possession of an Alcoholic Beverage in a Motor Vehicle. However, be aware that the officer could just as easily cite BOTH the passenger and the driver, since one drink could techincally be consumed and possessed by more than one person.


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