Laws & Penalties Driver and Passenger Open Container Laws

  1. It should be common knowledge to anyone who has a driver’s license that the operator of a motor vehicle is not permitted to drive while impaired by the effects of drugs or alcohol. What is not so clear is whether passengers permitted to drink alcohol in a car or other motor vehicle. What if you’re just parked on the side of the road? Can you have an open container of alcohol inside of the vehicle? While the general answer is that drinking alcohol is not permitted in a motor vehicle, the actual answer depends on the state and local law where the consumption is taking place.

    The Open Container Law


    Most states have what is called an “open container” law which prohibits any type of open alcoholic beverage containers. The law usually prohibits open cans, bottles or any unsealed alcoholic beverage containers – even empty – from being inside of a vehicle whether in the street or parked by the sidewalk. You should make note of the fact that where a person is drinking alcohol inside of a motor vehicle, they are also in possession of an open container as well.

    Some states do permit open containers inside of a motor vehicle but only when they are stored within a “secured” location, such as in the trunk or locked in the glove compartment. In those locations, the alcohol isn’t readily available to or within reach of the passenger or driver. You should make note of the fact that a where an open container is in reach of the driver but held by the passenger, it is possible for two violations to be issued.

    The blood alcohol concentration level (BAC) of a passenger who is cited for an open container offense is not relevant. BAC only concerns the driver of a motor vehicle to determine the operator's level of impairment. More than 40 states comply with the federal standards concerning open container laws as well as other traffic safety matters as set forth in the Transportation Equity Act for the 21st Century (TEA-21).

    Exceptions to the Open Container Law


    As stated above, most states have open container laws although not all have them. Arkansas, Connecticut, Delaware, Missouri, Mississippi and West Virginia do not have open container laws at the time this article was first published although some municipalities do have local ordinances that may prohibit open alcohol containers. Alaska, Louisiana and Tennessee do have open container laws but they are not in full compliance with federal TEA-21 standards.

    Can a Driver Legally Drink and Drive?


    It might seem impossible but some states place a great deal of trust in the hands of their citizens and charge them with the task of policing themselves. In states where local ordinances do not include open container laws, theoretically a driver may be able to drink and drive provided their BAC was within federal limits.

    The state of Mississippi does not have an open container law concerning both the driver and the passenger of a motor vehicle at the time of this article’s publication. Louisiana’s French Quarter in New Orleans is a highly unusual place, famous for its drive-thru daiquiri stands and its concerted efforts to boost tourism. At present, the state has permitted the passengers and the driver to have open containers inside of a motor vehicle provided that the driver is not actually drinking alcohol while driving.

    Drivers and passengers can find out more about open container laws in their state by reviewing their state DUI laws. It is also very important to review local ordinances for areas where one expects to visit or drive through.
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    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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