Open Container Law in Texas
Accused of Driving With an Open Container? Call (903) 207-5525!
What Happens If You Get an Open Container Ticket?
Texas Penal Code Sec. 49.031(1) states: “Open Container” means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.
So, what does that mean? Well, an open container is obviously not a bottle or can which hasn’t been opened.
What is an Open Container?
Here are some examples of open containers in Texas:
- A can which has been “popped” or
- A bottle which has had the lid twisted off. Either of those can still be completely full, without even a sip taken from it, yet it is still an open container… even a bottle which has had the top removed and then put back on.
- A cup with or without ice which contains any amount of alcohol, whether straight or mixed.
- A “runner’s bottle” or some other kind of drink holder which contains any amount of alcohol.
So what is an “empty”? A can, bottle, cup or any other container which is completely empty is no longer an open container … it is trash! You can have 100 open beer cans in your floorboard and as long as each one of them is empty, they are trash, and nothing more.
However, here is a point of argument … A container which is technically empty, but still is cool to the touch and/or has condensation on the outside is considered an open container. That’s not in the legal definition, but case law has legislated that it is for all purposes an “open container”.
Anyone in your car can be charged. The offense is a Class C Misdemeanor, punishable by a fine only, not to exceed $500. No jail.
Can a Passenger Drink in a Car in Texas?
Drivers can still be charged under Texas’s open container law even if they’re not the ones in possession of the alcohol. There are, however, exceptions for commuter vehicles such as buses, taxis, or limousines, or recreational vehicles so long as the container is open in the living portion of the RV.
So, while you may not be able to be the designated driver while your passenger drinks in the car, there are exceptions to the rule for specific vehicles.
Additional information on Texas alcohol laws can be read here.
What Makes Us Different?
Tailored DWI Defense
-
Exclusive Focus on DWI
-
Practicing Criminal Law since 1985
-
Free In-Person Consultations
-
Weekend Appointments Available
-
Born & Raised in Texas
-
Genuine Concern For Clients
Potential Defenses to the Open Container Law in Texas
"I Didn’t Know the Passenger Was Drinking Alcohol"
If you have an open container somewhere in the carriage part of your vehicle, chances are, you can’t raise much of a defense in court. However, there are several ambiguities. If someone brings illegal drugs into your car, and you genuinely don’t know that they’re there, that is a valid defense to possession. The same argument can be raised for a passenger who is not obviously drinking an alcoholic beverage. If the passenger is willing to say this in front of a judge, your chances are better.
"The Liquid in the Bottle Wasn’t Alcohol"
You’re a reasonable sort of guy who likes to take his bottles and cans back to the store to do your part for mother nature. You always make sure every bottle and can is cleaned out before you take the bottles and cans back. One of those bottles just happened to fall out on the way to the store. You’re charged under the open container law.
In this case, if you have prior DWIs, there’s no way you’ll get away with making this argument in court. However, if you are a fine upstanding citizen who is afraid of how a misdemeanor might look on your record, the judge may be inclined to accept your explanation.
"The Open Container Was in an Acceptable Part of the Vehicle"
If the open container is behind the back seat, it doesn’t matter if it’s open or not. The law clearly states that as an exception. But there’s no law against the police filing charges against you that don’t match up with the written law.
"The Traffic Stop Was Illegal"
In order for any evidence found to be legally admissible, the stop itself must have reasonable cause. If the stop did not have reasonable cause, then the evidence must be tossed.
John Eastland Attorney at Law P.C. Can Help
Open container law in Texas can be confusing, and is often used as illegitimate evidence of a DWI. Tyler DWI attorney John Eastland specializes in DUI/DWI defense and can help you reduce your charges or get them dismissed entirely.
Contact our firm today at (903) 207-5525 to learn more about open container law in Texas and how we can fight your ticket!
-
John Eastland has developed a reputation in East Texas for being a relentless, tenacious advocate for his clients in DUI cases.- Earl
-
John gave me some real clarity on the situation right from the start. He is down to earth, direct, and honest.- Eric
-
"He is a good helpful person."
Very good lawyer, not very much communication but he is worth the money. If you have a case that you feel the need of a lawyer, contact John Eastland and he is promised to take care of all your problems; he is a good helpful person.
- Former Client -
John is very professional and very good at what he does. I have used him on two occasions and he has done a very good job and went beyond my expectations.- Taylor