In the state of California and in 39 other states, it is against the law for a driver or for a passenger to carry an open container of alcohol in a car, truck, or any motor vehicle. According to Attorney Michael S. Phillips, “not on a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel.” Under the law in California, a container of alcohol is defined as “open” even if the seal has only been slightly broken. For drivers who are 21 and older in this state, if you are cited for carrying an open container in your vehicle, the charge is an infraction. Offenders can be fined as much as $250, and a point can be placed on your California driver’s license. For drivers under 21, the penalty is somewhat harsher, as explained below.

Ten states allow open containers of alcohol in moving vehicles. If you drive in Missouri, Mississippi, Rhode Island, Alaska, Connecticut, Delaware, Tennessee, or Virginia, your passengers may drink legally from open containers. In Mississippi, even a driver can drink alcohol, provided there is no impairment and the driver’s blood alcohol content (BAC) level remains under 0.08 percent. Passengers in Arkansas and West Virginia may possess – but may not consume from – an open container of alcohol in a motor vehicle.

WHAT IS THE TRANSPORTATION EQUITY ACT?

California, however, is one of forty states (and the District of Columbia) that forbid open containers of alcohol in motor vehicles in order to comply with the federal Transportation Equity Act for the 21st Century (“TEA-21”), passed by Congress in 1998. Compliant states are entitled to additional federal highway funds. Under TEA-21 guidelines, states must prohibit the possession of any open alcohol beverage container in a motor vehicle as well as the consumption of any alcoholic beverage in a motor vehicle.

Also under TEA-21 guidelines, a state’s open container law must apply to all alcoholic beverages and to all occupants, including the driver and all passengers. States may allow exceptions for a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation (such as taxis, buses, and limos) and for passengers in the living quarters of a house coach or a house trailer. The state’s ban on open containers must be a “primary enforcement” law, meaning police officers can make a traffic stop for an open container without any other violation prompting the traffic stop.

In California, an open container locked in a vehicle’s trunk or on the bed of a pickup truck is legal. But if a police officer stops you without a sufficient reason – that is, without reasonable cause – there’s a possibility that the charge can be quickly dismissed. If you already have points on your California driver’s license – or if you are under 21 – it may be in your best interests to fight the charge with the help of an experienced Orange County DUI defense attorney.

WHAT ABOUT DRIVERS WHO ARE TOO YOUNG TO DRINK?

In California, if you are under the age of 21, you are below the legal age limit for drinking alcohol. Thus, if you are stopped in traffic and found carrying an open container of alcohol, the charge will be a misdemeanor, and if you are convicted, you could be sentenced to six months in jail, ordered to pay a fine of up to $1,000, and lose the right to drive for a year. However, if an underage driver or passenger is accompanied by a parent or guardian, following reasonable directions from a parent or guardian, or transporting alcohol in the course of lawful employment, those facts are usually adequate legal defenses to the open container charge.

But whether you are under age 21 or over, everyone who drives in the state of California should know that you can fight an open container charge with help from an experienced DUI defense attorney. DUI defense lawyers employ a variety of legal defenses against the open container charge. For example, an Orange County DUI defense attorney might be able to persuade the court that:

• You were actually in a vehicle that was functioning as a vehicle-for-hire – as a taxi or limousine, for example.
• The alcohol was locked in the vehicle’s trunk or in another location inaccessible to the driver and passengers.
• The police officer had no probable cause to make a traffic stop.
• The police only found the open container because their search and seizure was illegal.

Under California law, probable cause is defined as a police officer’s reasonable belief that a crime is taking place or has taken place. Probable cause is the legal assurance that police officers can’t simply stop anyone they wish for any reason they please. Before a law enforcement officer can stop you in traffic, the officer must have specific “articulable” facts reasonably confirming the belief that someone is or was committing a crime.

Before anyone can be convicted for a violation of California’s open container law, the state must prove – beyond a reasonable doubt – that a defendant “personally” possessed the open container. If you are with four other passengers, you can’t be convicted of an open container violation unless a prosecutor can prove that the container was either on your person or under your personal control. In other words, a prosecutor has to link the open container directly to the individual defendant and not merely “to the car.”

CAN YOU BRING HOME WINE FROM A RESTAURANT?

Many states have open container law exceptions that pertain to bringing home unfinished wine purchased at a restaurant. California’s exception is a bit complicated. The California Alcoholic Beverage Control Act permits customers to drive home with an opened container of wine that has been purchased from a restaurant licensed to sell wine. You can legally bring home your unfinished wine. However, unfinished beer and hard liquor – any unfinished alcoholic beverage other than wine – cannot legally be driven home from a restaurant.

Finally, if a driver or a passenger in this state actually consumes an alcoholic beverage while riding in or driving a motor vehicle, it is a separate charge, an infraction, and the penalty for a conviction is a fine of up to $250. However, if you are driving in California and you are stopped for consuming alcohol while you’re driving, you will probably be suspected – and you’ll possibly even be arrested – for driving under the influence.