Open Container
On September 1, 2001, Texas passed the Open Container Law. According to Texas Penal Code Section 49.031, any open container in a motor vehicle, whether driving or parked, located on a public highway violates the law. Therefore, under the law, drivers cannot have an open container of alcohol on the driver’s side, passenger side, or backseat of a car on a public highway, even if the vehicle is pulled over and the engine is off.
Open container violations are common in the Austin area and this is especially true of college students and working Texans who have had a long day at the job. Although the offense isn’t jailable, for an officer to cite you for an open container violation implies that you’ve been driving which could escalate or compound the matter if you’re accused of DWI.
Austin Open Container Lawyer | Jackson Gorski
If you have been arrested for open container, Attorney Jackson Gorski is ready to talk with you if decide to contest the citation. In Texas, DWI, Minor in Possession, and driving-related incidents involving alcoholic beverages are taken seriously. Fighting the charge is beneficial as you wouldn’t want to generate or develop a criminal record.
If you’re serious about protecting your future and defending your good name, or if you believe the charges were in error and the officer made a mistake, contact The Law Office of Jackson F. Gorski today. Call 512-960-4646 or fill out the online consultation form to arrange a free, confidential consultation.
The Law Office of Jackson F. Gorski has offices in Austin and Georgetown and accepts clients throughout several counties in Texas including Travis County, Williamson County, Bell County, Bastrop County, Burnett County, Hays County, Caldwell County, Blanco County, Lee County, Milam County, Hays County, and Caldwell County.
Information Center
- Consequences For Drivers And Passengers
- Container Location Requirements
- Penalties for Violating Open Container Law
- Open Containers In Public
- Possible Defenses for Violating Open Container Law
- Additional Resources
Consequences For Drivers And Passengers
Under Texas law, a container can be in the form of a bottle, can, or another container that holds alcohol. A container qualifies as an “open container” if it has been opened, has a broken seal, or has had some of its contents removed. For instance, an unfinished bottle of vodka would be considered an open container even if the lid was closed. Similarly, a fully sealed bottle of alcohol is not classified as an open container.
Neither the driver nor any passengers have to be drinking from the container to be ticketed. All people can be charged with having an open container, depending on the location of the container. Even if the open container belongs to a passenger, the driver can also be charged. In Texas, it is the driver’s responsibility to ensure all laws are followed in their vehicle.
Interestingly, it is, however, legal to have an open container in buses/party buses, taxis, and limos. Open containers are also legal in the living quarters of motor homes, RVs, or self-contained trailers.
Container Location Requirements
The law states that a container must be in the “passenger area” of the motor vehicle to violate open container law. The “passenger area” is not limited to simply a vehicle’s “passenger seat” but encompasses any area of the car where people sit. The container needs to be accessible and visible from the driver’s seat (in the cupholder, in the passenger seat, rolling around in the back seat, etc.)
Open containers are not considered to be in the “passenger area” if they are:
- In the glove box or another secured storage space in the car
- In the vehicle’s trunk
- Behind the upright seat, if there isn’t a trunk
Any driver with an open container in their vehicle can be fined as long as they’re on a public road, street, highway, interstate, or another publicly maintained road. This might be relevant when tailgating on a public street, for instance.
Penalties for Violating Open Container Law
In Texas, Possession of an open container is a Class C misdemeanor which is equivalent to receiving a traffic ticket. As long as a driver’s blood alcohol content level is under .08, they will only receive a ticket for the container rather than a higher charge such as a felony.
Despite how minor a Class C Misdemeanor may seem, the consequences are more than just fines. A misdemeanor under the Texas open container law may have an impact on one’s insurance costs, ability to get a job, financial aid eligibility for college, etc.
Open Containers In Public
Texas does not have a statewide ban against drinking in public unless you are in a state park or a location where it has been deemed illegal. The laws governing drinking in public fall into two categories:
- Public places: On Sunday between 1:15 a.m. and noon and Monday through Saturday between 12:15 a.m. and 7 a.m., drinking is not permitted in public places.
- Public spaces where alcohol may be sold: such as bars, taverns, nightclubs, and restaurants. On Sunday, between 2:15 a.m. and noon, no alcohol may be consumed in a public space that is allowed to sell alcohol. Alcohol can’t be consumed in a public space between 2:15 a.m. and 7 a.m. Monday through Saturday.
Consuming alcohol in these places outside the designated times is a Class A misdemeanor. In Texas, a Class A misdemeanor conviction carries a maximum sentence of a year in jail and a maximum fine of $4,000.
Possible Defenses for Violating Open Container Law
A qualified attorney can argue several possible defenses to an Open Container charge to mitigate the extent of fines and/or jail time that a defendant faces. Some possible defenses include the following:
- Not knowing a passenger had an open container
- This may not hold up since drivers are responsible for ensuring the laws are followed.
- The liquid in the can or bottle wasn’t alcohol.
- Illegal traffic stops and containers in acceptable locations of the vehicle.
Additional Resources
Texas Statutes: Open Container Law – Click the link to access Chapter 49 which constitutes the Intoxication and Alcoholic Beverage Offenses. 49.031 covers open containers in motor vehicles.
Texas Statutes: Class C Misdemeanors – Access the Texas Statutes to view for information on punishments in the state, including Class C misdemeanors.
Although your reading of this website doesn’t constitute the formation of an attorney-client relationship, I will tell you that you should avoid discussing your case with friends, family, social media applications, and prosecutors without the legal guidance of an experienced defense lawyer.
